Massachusetts State House.
Policy Library

Fall Policy Update

September 30, 2021

Commonwealth v. Curran 

The BBA joined an SJC amicus brief by the Committee for Public Council Services in Commonwealth v. Curran, along with with the Massachusetts Association of Criminal Defense Lawyers and the Charles Hamilton Houston Institute for Race & Justice. This brief builds on the arguments developed in a brief we joined in Commonwealth v. Vazquez Diaz, arguing that judges must provide defendants with a colloquy advising them of their constitutional rights before proceeding with a virtual or hybrid trial, and elaborating on the disparate impact these trials may have on low-income individuals and communities of color, who are less likely to have high-quality access to Zoom—if at all.  

Just yesterday, before filing an opinion, the SJC issued an order affirming the conviction in Curran and prospectively directing that a trial judge must conduct a colloquy on the record with a defendant before proceeding to a virtual bench trial. In the meantime, we await the full decision. 


Commonwealth v. Dufresne  

The BBA submitted an amicus letter in Commonwealth v. Dufresne in support of the SJC convening a study committee on the right to counsel in G. L. c. 209A hearings. The BBA has been a steadfast supporter of expanding the right to counsel in civil cases when critical human rights are at stake, as put forward in our 2008 report Gideon’s New Trumpet: Expanding the Right to Civil Counsel in Massachusetts and our 2014 report on legal-services funding and the 2020 update to this report. The defendant in this case argues that he cannot be convicted as counsel was not appointed to represent him in the underlying case. Our letter states that — because of the potential power imbalance in Ch. 209A hearings, and to ensure the protection of critical rights for both parties — if the Court ultimately rules in favor of a right to counsel for respondents, it should be provided for petitioners as well. 

K.J. v. Superintendent of Bridgewater State Hospital  

Early this month, the SJC ruled in K.J. v. Superintendent of Bridgewater State Hospital that a statutory provision allowing the Department of Correction to override a court’s decision is unconstitutional. The BBA filed an amicus brief with the Disability Law Center and Mental Health Legal Advisors Committee arguing that the provision – which allowed the Commissioner of Correction to send the petitioner to Bridgewater State Hospital, overriding a judge’s determination that they need not be held at the high security institution – was unconstitutional. The provision infringes upon constitutional separation of powers and the petitioner’s due-process rights, and it has a disparate impact on low-income individuals and people of color, who are more likely to be held on bail and be sentenced to incarceration. While the SJC ruled solely on the separation-of-powers argument in its decision, we are glad that it declared this statute unconstitutional, as urged by our brief.  

Read more here.

Court Management Advisory Board 

Past BBA President Mark Smith oversaw the recent release of the Court Management Advisory Board’s 2019-2020 Report, “Rounding out the Trial Court User Experience Study,” in his role as Chair of that body. You can read the full report here

Statement on DOJ Challenge to Texas Abortion Law 

The BBA released a statement supporting the US Justice Department’s decision to challenge Texas’s new abortion statute, known as SB-8, which encourages private citizens to use the judicial process to abridge individual rights that are protected by Supreme Court precedent. The statute subverts Roe v. Wade by providing a bounty to anyone who pursues a claim against a person for actions associated with obtaining a constitutionally legal abortion. 

The Supreme Court declined to stay the implementation of SB-8 on procedural grounds, without the benefit of briefing or argument. This is concerning to the BBA as it does not address the heart of the issue, and leaves the door open for state legislatures to restrict other rights by relying on similar vigilante-style action. While this statute is now being tested, the chilling effect it has had on women’s access to reproductive rights and care is deeply concerning – especially considering the fact that low-income, vulnerable women with the fewest resources are the ones who will be most affected by this statute as long as it remains in effect.

The BBA has regularly spoken on issues relating to the rule of law, civil rights, and the administration of justice — all of which are at stake in SB-8 and the Supreme Court’s decision not to stay its implementation — and our statement is grounded in these principles. 


Legislative Hearing on Civil Asset Forfeiture 

The BBA has endorsed the recommendations of a special commission on civil-forfeiture laws, and last week, past BBA President Carol Starkey — who represented us on that commission — testified on the issue before the Legislature’s Judiciary Committee, as part of a panel alongside fellow commission members from the ACLU, CPCS, and MBA. Her testimony focused specifically on the importance of rerouting seized assets away from law enforcement, as the current law allows, in order to remove any incentive toward prioritizing cases based on the potential civil-forfeiture revenue that could be derived from them. We’ll continue to promote reforms in this area over the last 10 months of the legislative session.