BBA Amicus Brief History, Part II: Advancing Diversity and Inclusion, and Opposing the Death Penalty

In advance of this year’s Annual Meeting Luncheon, where the BBA will be proudly honoring the 20-year history of our Amicus Committee, last week’s Issue Spot kicked off a two-week review of some of the great past work of our amicus volunteers, from Chairs and members of the Committee to the drafters of our many briefs.

Here is Part II of that review, covering more of the briefs we filed on some of the most important legal issues of our time:

Diversity and Inclusion

The BBA is committed to advancing diversity and inclusion in the legal profession by honoring exceptional leadership in diversity strategies, offering public service opportunities for lawyers looking to introduce diverse young people into the legal field, and providing valuable mentoring and professional experience to help retain and develop a diverse population of lawyers in Boston. Some of our diversity and inclusion initiatives include mentoring, the summer-jobs and summer-internship programs, Law Day in the Schools, and group mentoring. (For more information about this important work, and to get involved, click here.) But in addition, as with so many other issues, we have also used amicus briefs to address diversity and inclusion in key cases.

Diversity: Grutter v. Bollinger and Fisher v. University of Texas at Austin

The BBA has long supported race-conscious admissions policies in higher education as a means to provide a diverse pipeline, first to law school and then to the legal profession. In 2003, we filed a brief in Grutter v. Bollinger, a landmark Supreme Court case on the University of Michigan’s admissions policy. The brief was drafted by Thomas Dwyer (now at Dwyer LLC) and Jody Newman of Dwyer & Collora, LLP (now Collora LLP), and BBA President Joseph Kociubes served as Of Counsel.

The brief argued that the severe underrepresentation of diverse lawyers harms law firms’ economic and professional interests—and society as a whole, because lack of diversity in the legal profession erodes public confidence in the judicial system. Furthermore, race-conscious admissions policies are vital to the shared mission of law firms to increase the racial and ethnic diversity of their lawyers. The brief describes some of the work by firms and bar associations aimed at increasing diversity but explains why they alone cannot solve the problem.

The Supreme Court held 5-4 in line with our brief, finding that race-conscious admissions policies that may favor underrepresented minority groups, but that also consider other factors evaluated on an individual basis, were permissible and not an unconstitutional quota system.

Extending the pipeline back a step, we also filed amicus briefs in both iterations of Fisher v. University of Texas at Austin. In August 2012, the BBA filed a brief in Fisher I, drafted by BBA Vice-President Jonathan M. Albano, a partner at Bingham McCutchen (now Morgan Lewis) and current member of our Amicus Committee, along with his colleagues Deana K. El Mallawany and Caleb Schillinger. The brief was supported by seven diverse Massachusetts bar organizations:

Asian American Lawyers Association of Massachusetts,
Massachusetts Association of Hispanic Attorneys,
Massachusetts Black Lawyers Association,
Massachusetts Black Women Attorneys,
Massachusetts LGBTQ Bar Association,
South Asian Bar Association of Greater Boston, and the
Women’s Bar Association.

The brief argued that the University of Texas admissions policy should be held to a strict-scrutiny standard because state efforts to promote diversity in education serve compelling governmental interests that are vital to the legal profession’s goals of achieving racial and ethnic diversity. Furthermore, the brief explained, underrepresentation of diverse lawyers harms the legal profession and society as a whole by eroding confidence in the justice system and limiting the breadth of skills and perspectives of practitioners. To quote the brief directly,

Until the composition of the legal profession more closely resembles that of the public whose interests are at stake, the perception will remain that the legal system is entrusted to and accessible to the white majority above all others. Not only does that perception undermine the legitimacy of the judicial system, it further discourages participation by people of color, creating a self-perpetuating cycle of exclusion.

In June 2013, the Supreme Court vacated and remanded a Fifth Circuit Court of Appeals decision for failing to apply strict scrutiny in reviewing the University of Texas’s race-conscious admissions policy. The ruling effectively upheld race-conscious admissions policies, but also complicated the overall picture by cautioning that race-conscious admissions policies must establish a quantifiable interest in the educational benefits of a diverse student body, and that higher-education institutions must be able to show that “workable, race-neutral alternatives” will not suffice, and demonstrate that the consideration of race is narrowly tailored. The BBA provided some clarity on the college admissions process going forward with a program in late 2013, but the issue remained open to discussion and interpretation.

In July 2014, a three-judge panel on the Fifth Circuit again upheld the University of Texas admissions plan, and the case returned to the Supreme Court when the Court granted a petition for writ of certiorari in June 2015. In November 2015, the BBA filed its second amicus brief, again supported by the affinity bars and drafted by Jon Albano, this time with the help of Sarah Paige.

Our brief in the second Fisher case was similar to the one we filed in Fisher I, arguing that state efforts to promote diversity in education serve a compelling governmental interest that is directly relevant to the goals of the legal profession, and that diversity of lawyers enhances the legal profession and society as a whole. It explained that this diversity in the legal profession can be achieved only through the cultivation of a diverse pipeline of students from undergraduate institutions.

In June 2016, the Supreme Court released its decision, again ruling in line with our brief, by upholding the University of Texas race-conscious admissions policy with a finding that it did not violate the Equal Protection Clause. We hope that our briefs helped sway the Supreme Court and that the upholding of these sorts of policies will have the intended effect of creating a more diverse pipeline of individuals into the legal profession. And we will continue to stand by, and advocate for, the principles expressed in these amicus briefs.

Inclusion: Goodridge v. Dept. of Public Health, Commonwealth v. U.S. Dept. of Health and Human Services/Nancy Gill v. Office of Personnel Management, and United States v. Windsor/Hollingsworth v. Perry

One of the BBA’s most well-known amicus briefs was filed in Goodridge v. Dept. of Public Health, the landmark case on marriage equality in which Massachusetts became the first state in the country to find that same-sex couples had a right to marry. Our brief, written by Peter Zupcofska, L. Tracee Whitley, Heidi Nadel, and Corin Swift, all of Bingham McCutchen LLP (now Morgan Lewis), is different from many of our other briefs in that it does not address the issues through their impact on the legal profession. Instead, it simply argues that legal benefits, rights, and obligations of marriage should extend to same-sex couples, and that denial of them deprives same-sex couples of equal protection under both statutory and constitutional law. The SJC famously held in line with these arguments in its historic decision issued on November 18, 2003, establishing a precedent that was later adopted piecemeal in thirty-seven states over the next decade.

Only two years later, the BBA was again advocating for inclusion, this time in Cote-Whitacre v. Department of Public Health, which challenged a 1913 law—said to have been targeted originally at interracial couples—denying marriage license to couples whose marriage would not be valid in their state of residence, under which many Massachusetts clerks were denying marriage licenses to same-sex residents of other states. Our brief, again drafted by a team from Bingham McCutchen (Morgan Lewis) built on our advocacy in Goodridge to make the case that the statute at issue violated provisions of the Massachusetts and United States Constitutions. The SJC disagreed in a March 2006 decision, upholding the law’s application to out-of-state same-sex couples. However, two years later, the law was repealed, accomplishing our ultimate goal.

In 2011, and 2013, we took on the federal Defense of Marriage Act (DOMA), which defined “marriage” as a legal union between “one husband and wife,” and “spouse” as “a person of the opposite sex who is a husband or a wife.” In 2011, we filed an amicus brief in companion cases Commonwealth of Massachusetts v. US Department of Health and Human Services, and Gill v. Office of Personnel Management, in the First Circuit Court of Appeals, opposing DOMA and arguing that classifications based on sexual orientation must be subjected to heightened scrutiny. The brief was drafted by the ACLU and a team from Wildman Palmer LLP (now Locke Lord), including Daryl Lapp and Robert Young. The First District decision affirmed the trial court ruling that DOMA violated the Equal Protection Clause of the 14^th Amendment but stayed enforcement of its decision in anticipation of U.S. Supreme Court review of the Act.

Just about a year later, the Supreme Court weighed in with favorable decisions in two cases on the same day. In U.S. v. Windsor, SCOTUS declared Section 3 of DOMA unconstitutional as a deprivation of the equal-liberty rights granted under the 5^th Amendment of the U.S. Constitution. In Hollingsworth v. Perry, the Supreme Court ruled that proponents of so-called Proposition 8, California’s ballot initiative to bar same-sex marriage, did not have standing to intervene because they could not demonstrate that they were harmed by the lower court ruling that declared the measure an unconstitutional violation of equal-protection rights. The BBA signed onto a single brief filed in both cases, with a coalition of bar associations, civil- and human-rights groups, and public-interest and legal-services organizations, arguing for heightened scrutiny based on sexual orientation classifications. And of course, in 2015, in its Obergefell v. Hodges decision, the Supreme Court made same-sex marriage the law of the land, finding a constitutional right to marry under the 14^th Amendment’s Due Process and Equal Protection Clauses.

Opposition to Capital Punishment

For more than 40 years, the BBA has opposed capital punishment, recognizing that the death penalty is simply too fraught with peril—too likely to lead to the execution of the innocent, too likely to result in discrimination against racial and ethnic minorities, and too expensive and time-consuming—to play any role in our criminal-justice system. We recently reaffirmed this stance and extended it to the federal death penalty in our 2013 report, The BBA and the Death Penalty.

Over the decades, the BBA has used amicus briefs to explain this position to the courts:

1975 – Commonwealth v. O’Neal – For those of you keeping score, the BBA has been involved with amicus briefs since long before the start of its Amicus Committee some 20 years ago. The advent of the Committee simply helped us bolster our ability to consider and take part in more and increasingly diverse cases.
- Commonwealth v. O’Neal concerned the constitutionality of a law mandating use of the death penalty for a murder committed in the course of rape or attempted rape. The brief argued that the death penalty is not an effective deterrent for a rapist-murderer because such defendants would not consider variations in punishments, given their twisted and psychotic mental state. The brief also established mainstays of the BBA’s arguments against the death penalty: the possibility of mistake, the disparate impact on minorities, and the massive expenses inherent in pursuing the punishment. The court overturned the state’s unconstitutional mandatory death-penalty provision.
1984 – Commonwealth v. Colon-Cruz – Our brief challenged the constitutionality of a 1982 amendment to Article 26 of the Massachusetts Constitution, permitting the death penalty in the state, and related statutes providing for the imposition and execution of the death penalty in certain murder cases. In addition to reiterating our major tenets, the brief explained the major fiscal, emotional, and professional impacts of the death penalty cases on members of the bar:
- Historically, the vast majority of capital defendants have been indigent. The immense defense costs thus fall on the Commonwealth and the private bar, especially through pro bono contributions. It is unfair to impose the extraordinary burden of capital defense, often involving 8-10 years of complex litigation, on only a small segment of the bar, and life is too precious to be left to the defense of underpaid volunteers.
- The psychological and emotional burdens on counsel, particularly on the defense, are immense. Aside from the onerous length and complexity of cases, defense lawyers are torn between close relationships with their clients and wanting to distance themselves in case of a death sentence. In addition, prosecutors and defense counsel alike face unique community pressures.
- Death’s severity and finality as a penalty and defense counsel’s failure to understand the nature and use of a bifurcated trial regularly lead to claims of ineffective assistance of counsel. Such claims degrade the bar, but are inevitable when death is at issue, a client poor, and an attorney court-appointed and dependent on the judiciary for a fee.
- The SJC invalidated the constitutional amendment and statutes, in line with our brief, finding that they violated Article 12 of the Declaration of Rights of the Massachusetts Constitution by impermissibly burdening a defendant’s right against self-incrimination and his right to a jury trial.
2005 – U.S. v. Darryl Green – The BBA submitted an amicus brief in this case that combined our opposition to the death penalty with advocacy in support of both access to justice and diversity. This brief on the federal death penalty, eight years before our aforementioned Report formally declaring opposition to the federal death penalty, was drafted by David Apfel and Julie Wade of Goodwin Procter LLP (now Goodwin).
- The brief explains that African-American defendants in the Eastern Division of Massachusetts are likely to face an all-white jury, given population statistics, and that social-sciences statistics show that African-American defendants are far more likely to be convicted and sentenced to death when facing an all-white jury. It details how African-American jurors simply bring a different perspective to their role – they are more likely to: believe minority witnesses are credible, harbor lingering doubts about defendants’ guilt, view defendants as remorseful, and consider mitigating evidence. Furthermore, the brief opposes the District’s proposed solution – the empanelment of two separate juries: one to determine guilt and the other, totally different in composition, to determine whether to impose the death penalty. It states that this “remedy” is “a mere baby step” and “little more than a modest gesture” that does not in any way guarantee fairness.
- The Court ruled in line with this argument, finding that the District Court’s suggestion of multiple juries relied on a misinterpretation of the Federal Death Penalty Act, but it did not address the concerns over disparate racial impact, as expressed in the brief.

This two-part review has offered just a small sample of the BBA’s work on amicus briefs, but it demonstrates why we are choosing to honoring the 100+ individuals who have given their time and talents to our Amicus Committee and their work—the collective force of which has not only defended and protected individuals’ rights, but forever changed the legal landscape in which we live and practice.

The ceremony will take place on October 20^th at the BBA Annual Meeting Luncheon—one of the largest annual bench-bar events in Massachusetts. In addition, we will hear from keynote speaker Professor David B. Wilkins, the Vice Dean for Global Initiatives on the Legal Profession and Director of the Center on the Legal Profession at Harvard Law School. A prolific author and leading scholar on the profession, Professor Wilkins is well known for his research on the impact of globalization on the legal market, diversity in the profession and the various career trajectories of attorneys.

We hope to see you there!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association