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BBA Expresses Disappointment in SJC Decision Barring Claims of Racial Profiling in Probation-Revocation Hearings

October 17, 2024

Chief Justice Budd’s Concurrence Nevertheless Recognizes
Equal-Protection Arguments May Warrant Further Consideration

We are disappointed by today’s decision of the Supreme Judicial Court (SJC) that denies a probationer the opportunity to seek suppression of evidence seized as a result of alleged racial profiling at a probation-revocation hearing. The BBA submitted an amicus letter that argued such claims should be allowed and endorsed the corresponding position of a separate brief filed jointly by the Committee for Public Counsel Services (“CPCS”), the American Civil Liberties Union of Massachusetts (“ACLUM”), and the NAACP Legal Defense & Educational Fund, Inc. (“LDF”).

Instead, the Court’s unanimous opinion ruled that trial counsel’s failure to invoke the Equal Protection Clause in a motion to suppress did not constitute ineffective assistance of counsel (IAC). The decision effectively affirms the lower court’s denial of the probationer’s motion for a new revocation hearing to submit evidence on racial profiling.

However, Chief Justice Kimberly Budd used a concurrence to express the view that the Court need not have ruled so broadly on the IAC argument but rather should have awaited a better “vehicle for considering” the equal-protection implications of racial profiling by law enforcement. As she points out, many other jurisdictions have “acknowledged that a safety valve allowing probationers to suppress evidence stemming from egregious conduct or targeting of probationers may be necessary.”

In the case, Commonwealth v. Gelin, the Court was asked to revisit Commonwealth v. Olsen, in which it had held that evidence obtained unlawfully by police who were unaware, or had no reason to be aware, of the individual’s probationary status was admissible in a probation-revocation proceeding, notwithstanding alleged Fourth Amendment violations. However, the Olsen decision left unresolved whether cases involving equal-protection violations like racial profiling should qualify as exceptions for what it describes as “egregious police misconduct or conduct that shocks the conscience.”

Today, Chief Justice Budd disagreed with her colleagues’ conclusion that “the same rationale that drove this court’s decision in Olsen arguably counsels its application beyond the Fourth Amendment context”—and that allowing racial-profiling claims would have a “marginal [deterrence] effect.” As the BBA and other amici argued, failing to address such violations essentially sanctions discriminatory practices and invites law-enforcement harassment.

The BBA’s amicus letter highlighted the critical need to address systemic disparities in the criminal justice system, particularly those impacting Black and Latinx individuals. This letter carried through the concern prominently emphasized in our 2017 report, No Time to Wait: Recommendations for a Fair and Effective Criminal Justice System—a concern that may be exacerbated as a result of today’s decision.

“Racial profiling holds no place in a constitutional justice system that guarantees equal protection of the law,” said BBA President Matthew V.P. McTygue. “Even if one person is incarcerated due to information gained as a result of racial profiling, it is one too many. For this reason, we hope that the SJC will have another opportunity to consider these issues.”

“Amicus Curiae” means, literally, “friend of the court.” Since 1975, the BBA has filed amicus briefs on matters related to the practice of law or the administration of justice. The 2024-2025 BBA Amicus Committee is co-chaired by Christina Miller of Suffolk University Law School and Ian Roffman of Nutter.

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