The Chief’s Challenge

by Martin Murphy

President’s Page

Chief Justice Ralph D. Gants’ death on September 14 left a gaping hole in the fabric of the Massachusetts legal community. For many lawyers—myself included—the news we received that Monday afternoon seemed simply unworthy of belief. Chief Justice Gants was just too full of energy and optimism and life to be gone so suddenly. We knew, of course, that he’d suffered a heart attack ten days earlier. But we expected a full recovery. After all, we knew he had much left to do.

Now, nearly three months later, that terrible news has begun to sink in. And so we dedicate this special issue of the Boston Bar Journal—one the BBA wishes it had no need to publish—to Chief Justice Gants. Appreciating the full scope of anyone’s legacy, and certainly the legacy of someone so deeply dedicated to justice as Chief Gants, is no easy task only 90 days after his death. But we can at least begin to appreciate that legacy now, for there is no doubt he left an extraordinary mark on our law, our courts, and on the thousands of Massachusetts residents who feel their impact every day. 

Nowhere was the Chief’s impact felt more deeply than in his work on the Massachusetts criminal justice system, particularly his outspoken advocacy against minimum mandatory sentences and systemic racism—issues that have also been at the center of the BBA’s work.

After being sworn in as Chief in 2014, Chief Justice Gants jumped into the controversy about minimum mandatory sentences with both feet. He made his first State of the Judiciary address on October 16, 2014—just 80 days after being sworn in as Chief Justice—and made his priorities plain, calling for “individualized, evidence-based  sentences.” Mandatory minimum sentences, the Chief noted, interfered with sentencing judges’ ability to impose what he called “hand-crafted sentences.”

This was not about guarding judicial prerogative. The Chief Justice made clear that a primary concern was about the effects of mandatory minimum sentences. As he wrote: “Mandatory minimum sentencing in drug cases has had a disparate impact upon racial and ethnic minorities.” He marshalled the statistics, noting that racial and ethnic minorities accounted for less than one-third of convicted offenders, but comprised “75% of all those convicted of mandatory drug offenses.”

Chief Justice Gants’ 2014 address was remarkable, but it was only the beginning of his work on racial justice in the criminal justice system.  First, he made sure the judiciary’s own house was in order by directing the Trial Court to develop and make public a comprehensive set of best practices in sentencing based on social science data and research. In 2015, he joined Governor Baker and the state’s legislative leaders in inviting the Council of State Governments to do what he described in his State of the Judiciary address that year as a “deep dive” into the State’s criminal justice system, and he committed publicly, “Follow the data and allow it to drive the analysis, letting the chips fall where they may.” And in 2016, Chief Justice Gants announced that he had asked Harvard Law School Dean to “gather an independent research team to explore the reasons for racial and ethnic disparity in the incarceration rate in Massachusetts.” “We need to learn the truth behind this troubling disparity,” the Chief said, “and once we learn it, we need the courage and commitment to handle the truth.”

Chief Justice Gants’ commitment to criminal justice reform has already produced results.  In 2018, following the Council of State Governments report that Chief Justice Gants had called for—and a report by the BBA we were proud to see Chief Justice Gants praise in his 2017 State of the Judiciary address—Massachusetts eliminated a number of mandatory sentences in drug cases, reduced penalties for others, and enacted other reforms. But the Chief characteristically refused to rest on his laurels. “The landmark legislation enacted this year is an impressive beginning to criminal justice reform,” he said, “but it is only a beginning.”

On September 9, the day after Chief Justice Gants announced that he had had a heart attack, and less than a week before his death, Harvard Law School’s Criminal Justice Policy Program released the study of racial disparities in the Massachusetts criminal justice system Chief Gants had called for in 2016. The study paints an extraordinarily disturbing portrait of our criminal justice system in action. Here are five of the report’s key findings:

  • “The Commonwealth significantly outpaced national race and ethnicity disparity rates in incarceration, imprisoning Black people at 7.9 times that of White people and Latinx people at 4.9 times that of White people.”
  • “Among those sentenced to incarceration, Black and Latinx people sentenced to incarceration receive longer sentences than their White counterparts.” For Black people, the average is 168 days longer; for Latinx individuals, an average of 148 days longer.
  • “[O]ne factor—racial and ethnic differences in the type and severity of initial charge—accounts for over 70 percent of the disparities in sentence length.”
  • Black and Latinx people charged with drug and weapons offenses are more likely to be incarcerated and receive longer sentences than White people charged with similar offenses. “This difference persists after controlling for charge severity and other factors.”
  • “Black and Latinx people charged with offenses carrying mandatory minimum sentences are substantially more likely to be incarcerated and receive longer sentences than White people facing charges carrying mandatory minimum incarceration sentences.”

Much of this comes as no surprise to anyone with experience in the Massachusetts criminal justice system. But, thanks to Chief Justice Gants, we now have data, not just anecdotes, to use as tools to fight minimum mandatory sentences and charging decisions that deepen the impacts of systemic racism.

Chief Justice Gants’ challenge to each of us as lawyers, and to organizations like the BBA, is simple: the data proves the system is broken; what will we do to fix it? To honor Chief Justice Gants’ legacy, we need to do more than spot the issues. It’s time for action.

Marty is a partner at Foley Hoag LLP where he represents individuals, companies, educational institutions, non-profits, and law firms in complex civil litigation, criminal investigations, and regulatory proceedings. He is President of the BBA and has chaired a number of BBA Committees, including the COVID-19 Response Working Group, Immigration Working Group, Working Group on Criminal Justice Reform, Death Penalty Working Group and the Task Force to Prevent Wrongful Convictions.



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