by Christine M. Netski
As BBA President, I have been fortunate to be involved in many important advocacy efforts to improve access to our justice system. In just the last few months, the BBA has filed amicus briefs in the Supreme Judicial Court arguing for just compensation for appointed counsel representing indigent criminal defendants, advocating for the right to counsel in civil contempt proceedings where indigent defendants face a realistic risk of incarceration, and urging that unidentified IOLTA funds should revert to the IOLTA Committee for the benefit of indigent residents of the Commonwealth. Most recently, I was honored to represent the BBA at the annual Walk to the Hill for Civil Legal Aid, where we once again advocated for increased funding for legal services through our partnership with the Massachusetts Legal Assistance Corporation (MLAC). Access to justice and service to the community at large are central to the BBA’s mission and we believe that no one in need of legal help should be turned away based on the inability to pay.
Too often, however, one’s ability to access justice is directly tied to one’s financial resources and far too many indigent litigants in civil cases are forced to navigate the legal system without the benefit of counsel, often with devastating consequences. One area where the justice gap on the civil side is particularly acute is housing. Boston is in the depths of a housing displacement crisis spurred by skyrocketing rents, higher rates of eviction for profit and a severe shortage of truly affordable housing. Approximately 39,600 households in Massachusetts faced eviction proceedings in 2019 and 92% of these tenants were forced to defend these cases without help from attorneys. In contrast, over 70% of the landlords in these proceedings were represented. Moreover, MLAC’s statistics reveal that 64% of eligible residents (those who are at or below 125% of the federal poverty level) who seek help with a housing case are turned away due to a lack of available funding.
The BBA has long advocated for the right to counsel for indigent parties in civil cases and, in 2008, established a Task Force on Expanding the Civil Right to Counsel that produced Gideon’s New Trumpet, a comprehensive report outlining the arguments for a right to counsel in a variety of civil cases where basic human needs are at stake. Among other areas, the report highlighted housing law and made a compelling case for counsel as a matter of right for indigent tenants facing eviction, noting that “tenants who are represented are much more likely to obtain a better result, whether it be maintaining possession of the premises, reaching a favorable settlement or winning a trial.”
Today, now 12 years after Gideon’s New Trumpet, there is reason to believe that the right to counsel for indigent parties in eviction cases will finally become a reality in Massachusetts. In June 2019, the BBA joined the Massachusetts Right to Counsel Coalition, a group of advocates and community members who support ensuring legal representation to low-income tenants, post-foreclosure occupants, and landlords. The Coalition’s proposed bill includes full legal representation for eligible individuals facing eviction in court and also calls for building the capacity of existing organizations to prevent evictions and promote housing stability, including proactive education and outreach, housing stabilization assistance, and other “upstream” support before litigation ensues. At the July hearing before the Judiciary Committee, Mary Ryan of Nutter McClennen & Fish LLP (and co-author of Gideon’s New Trumpet) testified for the BBA in support of the legislation.
Chief Justice Ralph Gants of the Supreme Judicial Court also formally endorsed the bill in his October 2019 State of the Judiciary address, expressing hope that the efforts to provide legal counsel for all indigent parties in eviction proceedings “finally come to fruition.” And the Boston Globe has lauded the proposed legislation, stating that “Massachusetts residents facing eviction deserve legal representation” and outlining how this legislation could dramatically shift the disparity in representation between tenants and landlords.
Of course, as we monitor developments on the legislative front, the BBA continues to help tackle the immediate shortage of counsel in housing cases through Lawyer for the Day in the Housing Court. For over 20 years, the BBA has collaborated with Volunteer Lawyers Project, Greater Boston Legal Services, the Legal Services Center of Harvard Law School, Harvard Legal Aid Bureau, and the Boston Housing Court to offer assistance to unrepresented tenants and landlords on Eviction Day. Since May 1999, volunteers in this collaborative program have helped more than 18,000 clients.
We are also proud of the work our BBF grantees are doing to combat evictions. As just one example, City Life/Vida Urbana is defending more than 800 Boston families fighting to stay in their homes, building anti-displacement zones in rapidly gentrifying areas, and opposing the construction of luxury housing in vulnerable neighborhoods without the addition of strong anti-displacement protections. They too believe that a right to counsel in eviction cases is an essential ingredient to addressing the current housing crisis.
And there is no question that civil legal aid organizations are doing a tremendous job in protecting and securing safe and affordable housing by enforcing health, safety, and accessibility standards; advocating for reforms that promote access to affordable housing; defending clients from unlawful eviction and combatting housing discrimination; protecting tenants at risk of losing housing subsidies; and helping to place vulnerable families in emergency shelters.
But the justice gap in eviction cases cannot be solved by legal services organizations and pro bono volunteers alone. The time has come for Massachusetts to be the first state in the nation to guarantee full legal representation for all indigent litigants in eviction proceedings.
Christine M. Netski is the President of the Boston Bar Association. She is also a managing partner and a member of the executive committee at Sugarman, Rogers, Barshak & Cohen, P.C.
 “Trial Court Statistical Reports and Dashboards.” Mass.gov, http://www.mass.gov/info-details/trial-court-statistical-reports-and-dashboards.
 “Civil Legal Aid in Housing & Foreclosure.” Equal Justice Coalition, Massachusetts Legal Assistance Corporation, equaljusticecoalition.org/wp-content/uploads/2019/02/FY-20-Issue-fact-sheet-Housing.pdf.
 In fact, since New York City passed right to counsel legislation in 2017, 84% of tenants with full legal representation have remained in their homes (“Mass Coalition for the Right to Counsel.” Mass RTC, http://www.massrtc.org/uploads/2/7/0/4/27042339/rtc_flyer_11-19-19.pdf.)
 “Civil Legal Aid in Housing & Foreclosure.” Equal Justice Coalition, Massachusetts Legal Assistance Corporation, equaljusticecoalition.org/wp-content/uploads/2019/02/FY-20-Issue-fact-sheet-Housing.pdf.
by Francis V. Kenneally
Voice of Judiciary
Managing the first degree murder caseload of the Supreme Judicial Court is a challenge – interesting and usually enjoyable, but definitely a challenge. For reasons tied to the cases of Nicola Sacco and Bartolomeo Vanzetti, which began almost 100 years ago, appeals from convictions of first degree murder are different from any other type of case, criminal or civil. Moreover, both because of these differences and the seriousness of the crime and sentence involved, there are a number of different players, individual and institutional, that have strong interests in how these appeals are handled. The following discusses the unique aspects of first degree murder appeals, how they have contributed to a backlog of pending first degree murder appeals in the full court, and the court’s recent efforts to address some of the historic issues affecting its first degree murder docket.
Appeals from first degree murder convictions are entered directly in the SJC; in contrast to almost all other types of appeals, the Appeals Court does not have concurrent jurisdiction with the SJC to hear first degree murder appeals. See G. L. c. 211A, § 10. The statute governing appellate review of first degree murder convictions, G. L. c. 278, § 33E, directs the SJC to consider the “whole case,” and – unlike virtually all other appeals – review is not limited to issues that have been properly preserved. Rather, § 33E provides that “the court may, if satisfied that the verdict was against the law or the weight of the evidence, or because of newly discovered evidence, or for any other reason that justice may require (a) order a new trial or (b) direct the entry of a verdict of a lesser degree of guilt.” See, e.g., Commonwealth v. Dowds, 483 Mass. 498, 513 (2019) (In the unique circumstances of this case, a “verdict of murder in the second degree is more consonant with justice than is a verdict of murder in the first degree.”).
This special, fulsome “33E review,” as it is called, has led the court to schedule longer oral arguments than is regularly allowed in any other appeal – twenty minutes per side versus fifteen. And it is this statutory duty to review the whole case combined with other provisions in 33E, particularly those governing motions for a new trial, that makes managing the first degree murder docket so challenging. Apart from any other post-conviction motion for a new trial, 33E draws a critical distinction between motions filed before the direct appeal is finally decided by entry of the appellate rescript 28 days after the appellate decision is released, and motions filed post-rescript. As to new trial motions filed before the appellate rescript, the motion must be filed with the Supreme Judicial Court for the Commonwealth, which, with rare exception, remands the motion to the Superior Court for disposition. The goal – certainly of defense counsel – is to have any appeal from the denial of such a motion in the Superior Court joined with the direct appeal of the underlying conviction because, if it is, the combined appeals both get the benefit of 33E review. And even if the appeals are not combined, an appeal from a denial of a new trial motion that is filed before entry of the appellate rescript in the direct appeal receives direct review by the full court. Commonwealth v. Raymond, 450 Mass. 729, 729-30 n. 1 (2008).
The landscape, however, changes dramatically if the motion for a new trial is filed after the full court decides the defendant’s direct appeal and the appellate rescript enters. The motion must then be filed in the Superior Court, and if denied, the defendant must apply for leave from a single justice of the Supreme Judicial Court to allow review of the Superior Court’s denial by the full court. A defendant’s desire to litigate fully a motion for a new trial before a decision on the direct appeal is understandable and borne out by the statistics on “so-called” gatekeeper petitions. From 2014 to 2018, 109 gatekeeper petitions were filed in the Supreme Judicial Court for Suffolk County (the county court), and were reviewed by a single justice. Of these, 97 were denied, 5 were allowed to be reported for review to the full court, 4 were dismissed, and 3 were withdrawn. If the single justice denies a gatekeeper petition, there is no appellate review of the denial. Commonwealth v. Gunter, 456 Mass. 1017, 1017 (2010).
Working together, these statutory provisions can cause lengthy delays in the court’s consideration of first degree murder appeals. For obvious reasons, defendants do not want their direct appeals heard before thoroughly exploring the possibility of filing and litigating motions for a new trial not only to preserve the right of appeal from any denial (and thus avoid the gatekeeper) but also to ensure 33E review. So, historically, at the request of defendants, the court has stayed direct appeals virtually indefinitely while the new trial motion is litigated in the Superior Court. Litigation in the Superior Court may take years for a variety of reasons, including (among others): the trial judge may have retired and reassignment is necessary; Superior Court judges are working to capacity on their current dockets; the parties battle over post-conviction discovery before the motion is finally presented and heard; and, because of some recent appellate decisions, there appears to be an increasing number of evidentiary hearings, which results in scheduling challenges and delays to accommodate the calendars of witnesses – expert witnesses in particular – as well as judges and counsel. As a result, appeals have been stayed for 5, 10, and at times more than 15 years.
Another cause of delay is the frequency of motions for appointment of new counsel filed by defendants or motions to withdraw filed by counsel; not infrequently, these occur multiple times in a single appeal. The Committee for Public Counsel Services must then find new counsel from its limited list of attorneys qualified to handle first degree murder appeals. Each new appointment of counsel, some many years after entry of the appeal, slows the progress of the appeal because new counsel must, at a minimum, become acquainted with a new client, meet with predecessor appellate counsel, speak with trial counsel, review voluminous files and transcripts, and decide whether to file a motion for a new trial.
The confluence of these factors led the SJC, in April 2018, to examine its first degree murder docket, identify areas of concern, and address some of the docket’s unique, systemic problems. The murder docket at the time had 129 pending appeals with the oldest of these entered in 1996. The caseload consisted of 22 appeals that were entered from 1996 to 2010, 60 from 2011 to 2015, and 47 from 2016 to 2018. Undue delay, in some but not all of these appeals, thwarts the judiciary’s obligation to provide justice fairly and efficiently: if there is error requiring a new trial, delay may jeopardize the Commonwealth’s ability to retry the defendant; delay undermines the public perception of the administration of justice, especially by the families of murder victims; and delay has caused defendants to question the fairness of a process that takes so long.
To that end, the Justices appointed retired Supreme Judicial Court Justice Margot Botsford as a special master in April 2018 to help manage the first degree murder docket and devise strategies to resolve long-standing problems. Through regular status conferences with attorneys, the special master implemented individualized case management plans in the oldest cases. These status conferences focused on: (1) the oldest murder cases; (2) newer murder cases; (3) cases in which counsel have appearances in 5 or more murder appeals; and (4) cases where the defendant’s presence was required. At this writing, the special master has held over 170 status conferences.
As part of the case management plan, the full court clerk’s office reviews every Superior Court docket where a motion is pending after remand and sends a monthly report to the Chief Justice of the Superior Court. The report includes information about motions in need of assignment, due dates for the Commonwealth’s responses, scheduled evidentiary hearings, pending motions for a new trial and for discovery, and any motions currently under advisement.
In the meantime, the full court explored the possibility of establishing special time standards in first degree murder appeals by way of a standing order. Before doing so, Chief Justice Gants and Justice Gaziano met in January 2019 with a group of stakeholders that included the special master, defense attorneys, and assistant district attorneys. This meeting provided an opportunity to discuss general concerns about the full court’s first degree murder docket and specific concerns about the adoption of a standing order for the docket.
Following this meeting, in April 2019, the court published a proposed standing order governing first degree murder appeals with a request for comment. After consideration of comments received from the bar and the judiciary, the proposed standing order was revised and adopted by the full court on August 6 with an effective date of September 4, 2019. See https://www.mass.gov/files/documents/2019/08/07/sjc-standing-order-governing-first-degree-murder-appeals-effective-september-2019.pdf
The standing order imposes time standards designed to remedy undue delay. Motions for a new trial must be filed “as soon as reasonably practicable but no later than 18 months after entry of the direct appeal.” However, the special master has broad discretion to allow extensions “on a substantial showing of need.” A timely filed motion guarantees that both the direct appeal and the appeal from any denial of the motion for a new trial will be considered together. If a motion for a new trial is not timely filed, there is no longer a presumption, formal or informal, that review of any denial of that motion for a new trial will be considered at the same time as the direct appeal.
To help identify any transcription issues at an early stage of the appeal, the defendant is required to report whether all transcripts necessary for appellate review have been filed with the clerk within 4 months after entry of the appeal. Status conferences, which had previously been scheduled on an ad hoc basis, must be scheduled 6, 9, 12, and 15 months after entry of the direct appeal. At the first status conference, and if necessary thereafter, the special master will discuss with counsel the likelihood that the defendant will be filing a motion for a new trial, and if so, discuss the scheduling of that motion – all to ensure that absent compelling circumstances, any motion will be filed within 18 months of the entry of the direct appeal. Finally, where a motion to withdraw is allowed and new counsel is appointed, deadlines previously imposed remain in effect despite the change in counsel. The special master may, however, adjust the deadlines for status conferences, briefs, and new trial motions for good cause.
Whether these case management innovations lead to lasting changes to the full court’s first degree murder docket remains to be seen. It is clear, though, that it will take the concerted effort of many to balance the interests of all stakeholders and promote efficiency without sacrificing fairness.
Francis V. Kenneally is clerk of the Supreme Judicial Court for the Commonwealth. He serves on the SJC’s Standing Advisory Committees on the Rules of Civil Procedure and on the Rules of Appellate Procedure, and served as co-chair of the SJC’s Appellate Pro Bono Committee.
With the Appeals Court’s implementation of mandatory electronic filing for attorneys in September 2018 coinciding with extensive updates to the Massachusetts Rules of Appellate Procedure in March 2019, as well as with the Supreme Judicial Court’s pilot allowing parties to file electronic briefs with limited paper copies, this is a good time to provide feedback to the Massachusetts bar about some of the changes. As part of this endeavor, we surveyed the Justices of the Supreme Judicial Court and the Appeals Court for their input. What follows is a compilation of their feedback and additional observations. Although the Justices’ responses were not unanimous, they revealed many common themes.
The Monospaced or Proportional Font Option. Rule 20(a) now permits filers to use either a monospaced font (such as Courier New) with page limits, or a proportional font (such as Times New Roman) with a word count maximum. Attorneys frequently ask: What type of font do the Justices prefer?
Justices were evenly split among those who prefer a proportional font and those who had no preference, with slightly fewer Justices preferring a monospaced font. The preferred monospaced font was, unsurprisingly, Courier New; the preferred proportional font was Times New Roman. Sticking to one of these two fonts in your submissions is a safe bet. If you decide to take advantage of Rule 20(a)’s flexibility and select a different proportional font to add some extra flair, heed one Justice’s comment that “if a practitioner wants to try something new, that’s fine, but it must be easy to read.”
A downside to using a proportional font is the extra space that it occupies when produced in 14 point or larger font as the rule requires. A brief that is more than the traditional 50 page limit, even when within the new word limit, may seem longer to the reader using a proportional font because of the larger type size and new pagination requirements. Therefore, it is important to be mindful that the Justices, as always, appreciate conciseness and brevity.
Visual Aids. One way to free up space in a brief is to compile and present information through the insertion of visual aids. Visual aids may include a photograph, image, diagram, chart, or table. For example, in the Statement of Facts section of a brief, filers might consider putting chronological information contained in the record into a timeline format; various criminal charges, convictions, and sentences could be presented in a chart; a family tree could be useful in a probate case; a factually complex property case might benefit from a visual plan or map. While the Massachusetts Rules of Appellate Procedure do not currently contain a provision explicitly allowing or disallowing visual aids, the appellate courts’ practice is to accept them and a future rule amendment is possible.
The Justices commented that such visual aids are “refreshing” and that, “if you created a chart to prepare yourself, then we could use the same chart.” They also observed that, if you do not provide it, they may spend time developing a similar chart or understanding on their own.
But care and attention must be used when preparing a visual aid. Justices remarked, “While it’s theoretically possible, I have rarely if ever seen a chart or graph used effectively[,]” visual aids are “generally no[t]” helpful or only “[i]f well done,” and “[a] little goes a long way. Should be limited to the extraordinary and not [used] in lieu of precise text.” Any visual aid must be based on the record and contain appropriate record or source references.
Electronic Review. Virtually all of the Justices are reviewing documents electronically. There may be a misperception that Justices simply review paper printouts of electronically filed documents. That is not the practice. All Justices of the Supreme Judicial Court and the Appeals Court have iPads, as well as desktop computers, that contain electronic files (PDFs) of each case including the briefs, transcripts, and appendices. The Justices use different programs and applications, primarily the GoodReader app, to search for keywords, highlight text, insert notes, and copy and paste material to aid in drafting a decision. However, to enable the Justices to use these search and annotation features, the rules require that all PDFs be created and efiled using optical character recognition (OCR) technology. OCR is not optional yet many attorneys continue to submit non-OCR documents, which the courts will reject or strike when identified.
In general, Justices remarked that electronic documents are easy to read and the clarity of exhibits is enhanced in the electronic over paper form. They expounded on the unparalleled convenience of having all of the documents at the tip of their fingers to access at any time of day, whether in the office, on the train, or in the courtroom. Although paperless review has some drawbacks, the many positives of electronic accessibility and utility outweigh those shortcomings.
Overall, when asked what effect electronic document practices have had on their review of case files, an overwhelming majority of the Justices responded favorably with only one negative response. The Justices reported a positive effect on their opinion writing, explaining that text-searchable documents, navigation, copying and pasting text, cite checking, and organizing multiple cases is much easier. One Justice responded that poorly organized electronic record appendices make writing much more difficult.
Bookmarks and Internal Links. One message many Justices asked us to emphasize is to encourage electronic filers to add bookmarks and internal links in electronic documents. They assist Justices to navigate a PDF. While internal links are currently allowed by S.J.C. Rule 1:25 but not required, the Justices surveyed overwhelmingly praised the inclusion of bookmarks and internal links in a document. A guide detailing how to create them in a brief or appendix is available on the Appeals Court website.
Filers should consider adding internal links to the table of contents in their brief, addendum, and appendices that allow Justices to “jump” to the various sections of the document. Including and bookmarking the Trial Court decision in the addendum to each brief or application for direct review, or the Appeals Court’s decision in an application for further review, is of the utmost importance. One unfortunate limitation that exists with the efiling vendor’s current program is that hyperlinks cannot be used to link to different PDFs or outside sources, such as a brief’s citations to a separate record appendix or transcript volume. Nevertheless, bookmarks and internal links are critical to the Justices’ review.
The Brief’s New Standard of Review Statement. The Justices unanimously agreed that Rule 16’s new requirement that a brief contain a standard of review section is helpful. However, one Justice noted that not all briefs include the statement, and expressed hope that more briefs will include it in the future, while another Justice commented that although more briefs are including a standard of review, it is not always the correct standard. These responses reveal the importance of ensuring a brief includes a correct standard of review to assist the Justices.
Citations to the Record Appendix. Because a hyperlink cannot be used in a brief to jump to a page in a separate record appendix volume, it is important that filers ensure that record appendix citations used in their brief are crystal clear. A Justice remarked that finding citations can be difficult because of complex references. Another Justice added that it would be helpful if all parties to a case used the same citation convention.
While the rules do not require a specific record citation convention, Rule 16(e) suggests: “RAII/55 (meaning Record Appendix volume II at page 55) or TRIII/231-232 (meaning Transcript volume III at pages 231-232).” It is recommended that you use this format because it is simple, less disruptive to the reader’s flow, and counts as one “word” for length calculation purposes.
Similarly, filers in civil appeals are reminded of Rule 18(b)(1)’s requirements to confer with the other parties at the beginning of each appeal to determine the contents of the appendix. Supplemental appendix volumes are especially apt to create confusion when they needlessly reproduce documents that were already included in the appellant’s appendix.
The “New” Record Appendix. Several Justices remarked that record appendices are often disorganized, contain a poor table of contents (one example given was “Administrative Record – p 1; Judgment – p. 1,265”), and volumes are not paginated so that the document page and PDF page correspond. Rule 18(a)(1)(A)(ii)’s new requirement that the table of contents “list the parts of the record reproduced therein, and includ[e] a detailed listing of exhibits, affidavits, and other documents associated with those parts,” illustrates the detail sought by the Justices.
Common Oversights. In addition to the Justices’ feedback, we also surveyed personnel in the Appeals Court’s Clerk’s Office to determine the most common omissions or errors they encounter when reviewing electronically filed briefs and appendices. They are:
(1) the brief or appendix is not OCR-searchable;
(2) the brief fails to comply with the pagination requirements in Rule 20(a)(4)(a), which requires filers to start a brief’s numbering with the cover as page 1, and eliminate the use of lower case Roman numerals for the tables of contents and authorities; the purpose of this rule is to have the brief paginated identically to the page numbers of its PDF version so that page references are easily ascertainable by the Justices;
(3) the absence of an addendum, which Rule 16(a)-(c) requires for any brief, and a table of contents for the addendum;
(4) a brief’s addendum, or a portion it, is not searchable using OCR while the rest of brief is OCR-searchable;
(5) Rule 16(k) brief certifications that are incomplete, specifically missing the required language identifying the filer’s calculation of the Rule 20 length limits; the court will not accept a brief without a compliant certification; and
(6) failure to include a complete table of contents in the first volume of a multi-volume appendix as required by Rule 18(a)(1)(C), or not including a table of contents in each separate appendix volume for that volume.
If you need any assistance or desire to double-check the requirements before uploading your PDF, the Appeals Court website provides detailed guidance for formatting documents for electronic filing, including checklists, and Clerk’s Office personnel are available to answer any questions.
Conclusion. After decades, and even centuries, of Massachusetts attorneys submitting and Justices deciding appeals on paper, much has changed in the past year. We hope these insights into the Justices’ current practices, preferences, and challenges will assist you in updating your practice to satisfy this new age of appeals.
Joseph Stanton is Clerk of the Massachusetts Appeals Court. He serves on several court committees involving procedural rules of court and technology initiatives.
Julie Goldman is an Assistant Clerk of the Massachusetts Appeals Court. She has been working on the Judicial Branch’s electronic filing program since 2013 to bring electronic filing to the state courts through drafting the electronic filings rules and working with vendors to develop and implement efiling.
by Reyna M. Ramirez
Dangerousness hearings have huge stakes for defendants: if the Commonwealth proves by clear and convincing evidence that there are no conditions that can assure the safety of the community, a defendant can be incarcerated for up to 120 days in a district court case, or 180 days in a Superior Court case. G.L. c. 276, § 58A. However, pretrial detention based on “dangerousness” is counter-balanced by the presumption of innocence that undergirds our entire criminal justice system, and criminal defendants have recently mounted successful challenges to certain applications of the statute. This article reviews the challenges, the Supreme Judicial Court’s rulings, and responsive proposed legislation.
“Dangerousness” Hearings Under G.L. c. 276, § 58A
Under General Laws c. 276, § 58A, a court may order pretrial detention of a criminal defendant if the prosecution shows, by clear and convincing evidence, that no conditions of release will reasonably assure the safety of any other person or the community. But the Commonwealth can seek such pretrial detention only if the defendant is charged with: (a) one of several predicate enumerated crimes; (b) a misdemeanor or felony that involves “abuse” (the “abuse clause” of § 58A); (c) a felony that has as an element the use, attempted use, or threatened use of physical force against another (the “force clause”); or (d) a felony that, by its nature, involves a substantial risk that physical force against the person of another may result (the “residual clause”).
The abuse clause defines “abuse” with reference to the definition of abuse contained in Chapter 209A, that is, where the charged crime is against the defendant’s “family or household member,” including somebody who is or has been in a substantive dating or engagement relationship with the defendant, and involves: 1) attempting or causing physical harm; 2) putting others in fear of imminent serious physical harm; or 3) causing another to participate in sexual relations involuntarily through force, threat, or duress (i.e., rape).
The force clause focuses on whether the elements of the charged offense involve the use of force. A “categorical approach” is used to determine whether a non-enumerated felony qualifies as a predicate under the force clause. Commonwealth v. Young, 453 Mass. 707, 712 (2009). This approach assesses the elements of the felony “independent of the particular facts giving rise to a complaint or indictment.” Id. In other words, to determine whether a charge qualifies as a predicate under the force clause, the court asks not whether the defendant’s conduct involved the use of force, but rather whether the elements of the crime necessarily always involve the use of force.
Finally, the residual clause asks whether a felony “by its nature, involves a substantial risk that physical force against the person of another may result.” G. L. c. 276, § 58A.
Commonwealth v. Barnes / Scione v. Commonwealth
In January 2019, the Supreme Judicial Court ruled on the consolidated appeals of David Barnes and William Scione, each of whom had been detained following a finding of dangerousness under § 58A. Scione v. Commonwealth, 481 Mass. 225 (2019). Barnes was charged with statutory rape in violation of G.L. c. 265, § 23A, based on an allegation that he had sexual intercourse with a 15-year-old girl at a hotel after the two met online. Scione, on the other hand, was charged with using an incendiary device in violation of G.L. c. 266, § 102A, based on an allegation that he created a homemade improvised explosive device and placed it at the bottom of the driveway of his former girlfriend’s home (the record indicated that the device could have caused serious harm if it had not failed to explode). Neither of the charged crimes is an enumerated predicate charge under § 58A.
The SJC first ruled that statutory rape under § 23A is not a predicate charge under the force clause. Using the required categorical approach to analyze the elements of statutory rape under § 23A, the SJC observed that the crime requires proof that: (1) the defendant had sexual or unnatural intercourse with (2) a child between 12 and 16 years old where (3) there was a greater than 10-year age difference between the defendant and the child. Thus, force is not a required element of proof for statutory rape. The SJC noted that forcible rape of a child is its own crime under G.L. c. 265, § 22A, and that“[t]he fact that the Legislature saw fit to create two separate statutory rape offenses – one that includes the use of force and one that does not” – supported its decision to find there is no force element with respect to § 23A. Scione, 481 Mass. at 230. Justice Lowy wrote a separate concurrence “because such a counterintuitive result requires further discussion and consideration by the Legislature,” signaling to the Legislature to fix what he termed an “unfortunate” decision mandated “under the law as currently written.” Id. at 239.
The SJC next ruled that statutory rape under § 23A cannot be a predicate charge under the residual clause, because the residual clause is unconstitutionally vague. Scione, 481 Mass. at 230. To reach this conclusion, the SJC relied on the decisions of the United States Supreme Court in Johnson v. United States, 576 U.S. —, 135 S. Ct. 2551 (2015) and Sessions v. Dimaya, 548 U.S. —, 138 S. Ct. 1204 (2018) which, respectively, held that similarly-worded residual clauses in the federal Armed Career Criminal Act and the federal statutory definition of “crime of violence” were each vague because they failed to set out how to determine which crimes triggered the statute’s application. Noting that it had already followed Johnson in interpreting the Massachusetts Armed Career Criminal Act, see Commonwealth v. Beal, 474 Mass. 341 (2016), the SJC ruled that the residual clause of § 58A is unconstitutionally vague under Article 12 of the Massachusetts Declaration of Rights and, therefore, cannot be used to justify dangerousness proceedings in any case.
Turning to Scione’s case, the Court analyzed whether his charge of using an incendiary device under § 102A could trigger a dangerousness hearing under the abuse clause (which, the Commonwealth argued, applied because the alleged victim had previously been in a substantive dating relationship with the defendant). The Court held that, unlike the force clause, the abuse clause does not require use of the categorical approach. The SJC reached this conclusion in part because only one Massachusetts statutory crime—assault and battery on a household member (G.L. c. 265, § 13M)—explicitly includes abuse as an element. Id. at 236. Using statutory interpretation principles to presume that the Legislature intended to act logically, the Court opined that, “had the Legislature intended that only one crime be captured under the abuse clause,” it would have enumerated that crime rather than enact a separate “abuse” clause. Id. Instead, the SJC found, abuse “is best described as a characterization of an action or actions” and, therefore, a judge can look at the details of the defendant’s underlying conduct to determine whether the charge involves abuse. Id. Applying those principles to Scione, the SJC found that his alleged acts of placing a potentially-harmful IED on the property of his former girlfriend indeed involved abuse.
Commonwealth v. Vieira
The SJC’s decision in Barnes paved the way for its October 2019 decision in Commonwealth v. Vieira. 483 Mass. 417 (2019). There, the defendant was charged with indecent assault and battery on a child under 14 years old, in violation of G.L. c. 265, § 13B, based on allegations that he had engaged in sexual activity with a thirteen-year old boy he met online. Indecent assault and battery on a child under 14 is not an enumerated charge under § 58A, and the Commonwealth sought to treat it as a predicate charge under the force clause.
At the outset of its opinion, the SJC reminded practitioners that “pretrial detention is a measure of last resort,” and that the presumption of innocence always applies. Applying the categorical approach, the SJC observed that indecent assault and battery on a child under § 13B does not have statutory elements, but rather incorporates the common law definition of battery, including to the extent that an assault is simply a threatened or attempted battery. The SJC explained that, at common law, there were three types of battery: (1) harmful battery, involving touching with such violence that bodily harm was likely to result; (2) reckless battery, involving a wanton, willful, or reckless act that results in injury; and (3) offensive battery, requiring “only that the defendant, without justification or excuse, intentionally touched the victim, and that the touching, however slight, occurred without the victim’s consent.” Although the first two types, the SJC found, necessarily involve the use of physical force, offensive battery does not. And, because a court evaluating bail and pretrial detention does not look to whether the charged conduct involves harmful, reckless, or offensive battery, application of the categorical approach means that a statutory crime incorporating all three types of battery does not necessarily always include force. Applying those principles, the SJC concluded that indecent assault and battery under § 14B is not a predicate charge under the force clause of § 58A.
Two days after the SJC’s decision in Barnes, Governor Charles Baker submitted House Bill No. 66, An Act to Protect the Commonwealth from Dangerous Persons, which sought to change the dangerousness statute to include sex offenses involving children by adding those crimes – along with others – to § 58A’s list of enumerated crimes. This bill retains the force clause but completely removes the unconstitutional residual clause. Adding more enumerated crimes would have the effect of subjecting more individuals to dangerousness hearings and pre-trial detention. However, this approach does not address the issue that battery may not always include force, but commonly does. See, e.g., G.L. c. 265, § 13A (assault and battery). Instead, this legislation only addresses the specifics of the cases the SJC has adjudicated and misses an opportunity to draft legislation that looks forward and targets only the most dangerous of offenses and individuals.
Reyna M. Ramirez is a Partner at Ramirez and Sunnerberg, a criminal defense and prisoners’ rights practice on the South Shore. She is also an Associate at the firm J. W. Carney, Jr. and Associates, where she litigates complex criminal defense cases.
by City Councilor Lydia M. Edwards
Boston’s economy is thriving. Why then are so many residents of the City and Commonwealth struggling to find and afford housing, remain in the communities they love, become homeowners and build wealth? A shortage of housing that serves the needs of all economic classes and family structures is certainly part of the problem. But simply building across the region will not solve our state’s persistent housing affordability crisis. To house our diverse, growing population, we will need a multi-pronged approach that balances growth and prosperity with protection of all residents during both recession and economic booms and addresses the widening wealth gap that plagues our City and the Commonwealth. As Boston City Council Chair of the Housing and Community Development and Government Operations Committees, my view is that Boston can lead through housing policies that raise revenue for affordable housing, shape new inclusive neighborhoods through planning and zoning that affirmatively furthers fair housing, and stabilize communities through protections against involuntary displacement and equitable opportunities for home ownership.
Revenue for Affordable Housing
With the decades-long decline in federal funding, localities must look to other sources to finance the preservation and production of housing that is affordable to low- and moderate-income residents. Boston recently passed a home rule petition to collect a transfer fee of up to 2% on high-value real estate transactions that exceed $2 million dollars, subject to exemptions (“Transfer Fee Home Rule”). Enacted, the Transfer Fee Home Rule could generate as much as $169 million per year for affordable housing in Boston, vastly outstripping current resources at the City’s disposal. Municipalities as different as Somerville, Concord and Nantucket have also proposed transfer fees to fund their affordable housing, and 38 states and localities already have excise taxes on property sales.
Boston also has a pending home rule bill to authorize the City to update its existing Development Impact Program (“Linkage”) and Inclusionary Development Policy (“IDP”) which are each intended to mitigate the increased demands for affordable housing and job training attributable to large-scale developments. HB 4115. Enacted, HB 4115 would permit the City to make its own decisions to adjust the linkage fees to enable Boston to align more efficiently with changing market conditions and local needs without waiting for approval of the full General Court as currently required by statute; extend the IDP requirements (e.g., to create 13% of development as income-restricted units or contribute equivalent funds) which currently apply only to market-rate housing developments with 10 or more units and are in need of zoning relief, to all large projects regardless of whether zoning relief is needed; and codify the IDP into Boston’s Zoning Code.
Inclusive Zoning and Planning
Several “large projects” subject to Boston’s Article 80 Development Review and Approval process–including the former Suffolk Downs race tracks in East Boston, the Bunker Hill public housing in Charlestown, and the Mary Ellen McCormack public housing in South Boston–provide the City with unprecedented opportunities to shape entire new neighborhoods that provide an inclusive range of housing options to accommodate the City’s diverse population, while disrupting historic concentrations of poverty and patterns of racial and cultural segregation and providing access to employment and training opportunities for affected residents.
For public housing redevelopments, this may mean ensuring that income-restricted units are integrated with the market-rate units, whereas in purely private developments like Suffolk Downs, it may mean planning to ensure sufficient “affordable units” of the right bedroom size to house families and a community benefit agreement to mitigate meaningfully against adverse development impacts and hardships. I have proposed a zoning change for Boston to systematically ensure that all developers undertake deliberate and “meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics.” This change would amend the text of Boston’s Zoning Code to expressly incorporate our preexisting federal Affirmatively Furthering Fair Housing obligations. Seattle and Portland, for example, already review their plans with a lens for racial equity and displacement risk along with opportunities for economic growth, to inform their choices.
The City also recently strengthened its comprehensive planning under the Climate Ready Boston Initiative by passing an Ordinance Protecting Local Wetlands and Promoting Climate Change Adaptation in the City of Boston to ensure the equitable protection of all residents from the effects of climate change.
Boston has been taking aggressive steps to address the chronic housing crisis since October 2014 when the mayor’s Housing Advisory Task Force issued Housing a Changing City: Boston 2030, which was updated in 2018. The original Plan called for the production of 69,000 new housing units by 2030 with specific targets for different affordability levels in an effort to create a more equitable and inclusive City. Beyond production, the City also dedicates funds to support the acquisition and deed-restriction of properties as affordable housing, regulates and restricts short-term rentals, protects against condominium conversions, and supports a right to counsel in eviction proceedings––all measures intended to protect residents, especially long-time, low-income, elderly, and disabled tenants, against involuntary displacement. The City also created the Office of Housing Stability (“OHS”) in 2016, the first of its kind in the nation, to work across City departments and with external partners to promote policies, practices, and programs that are effective in achieving housing stability for tenants at risk of eviction, which is also critical to stabilizing communities like Boston where the majority of the population is renters.
Other high-cost cities also have passed right to counsel legislation, and some states such as Oregon, California and New York are moving towards rent stabilization policies which would allow rent increases but prohibit increases as high as those experienced by many Boston residents. These states, as well as Boston, have also looked to “just cause eviction” policies in efforts to protect tenants current with rent and who otherwise have not broken their lease agreements.
Additionally, to encourage home ownership, Boston has expanded the availability of low-interest loans to moderate-income families through the ONE+ Boston program and approved zoning to allow for accessory dwelling units. Other policies which support resident-controlled housing, such as cooperatives, cohousing and community land trusts; the co-ownership of such housing by residents; and a resident’s right of first refusal to purchase, would each promote community stability, as well as individual opportunity to gain equity and build wealth.
Boston’s housing affordability crisis is not abating, and our response has not scaled up to protect all residents. With bolder action, we can create lasting stability in neighborhoods and reverse historic patterns of discrimination and dispossession in our real estate market, as well as in zoning and planning decisions. To achieve community stability we need a multifaceted approach to the housing shortage that is responsive to the diverse needs of all residents and to historic inequities and barriers to enabling them to remain in place and housed in their communities of choice.
Lydia Edwards has spent her entire career as an advocate, activist, and as a voice on behalf of society’s most vulnerable. She served as the deputy director within the Mayor’s Office of Housing Stability, as a public interest attorney with Greater Boston Legal Services focusing on labor issues, and she currently represents District One on the Boston City Council. For the 2020-2021 council session, she serves as Chair of the Committees on Housing and Community Development and Government Operations.