Students For Fair Admissions v. Harvard: Affirmative Action, Race-Based Policies, and Preference Falsification

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by Natasha Varyani

Viewpoint

In November 2020, the U.S. Court of Appeals for the First Circuit upheld the district court’s finding that Harvard University’s admissions policy comports with the law relating to affirmative action in higher education. Students For Fair Admissions v. Harvard is a piece of a larger effort directed by activist Edward Blum to dismantle the existing law on affirmative action. The case is one of three currently active lawsuits and the only one involving a private university, each an attempt by Students For Fair Admissions (“SFFA”) to reach the newly recomposed U.S. Supreme Court.  At a time in our nation’s legal and cultural history when systemic racism is being examined in our legal discourse in myriad ways, the context surrounding the First Circuit’s decision in the Harvard case is essential to understanding what the ruling will mean for race-conscious admissions policies.

The Harvard case was manufactured by SFFA in the wake of the Supreme Court upholding higher education affirmative action policies in several high profile cases. Most recently, the Supreme Court twice reviewed and ultimately upheld the race-conscious admissions policies of the University of Texas in Fisher v. University of Texas. There, Abigail Fisher, a white student, did not prevail. After Fisher, SFFA identified a new strategy: to find a minority group disadvantaged by affirmative action policies. With a focus on Asian families with strong academic achievement and ambitious goals for their education, the plaintiffs in SFFA’s current cases bring a new perspective to challenging the use of race in admissions.  This new perspective relies upon many of the stereotypes and biases already culturally prevalent about the “model minorities” and may very well be SFFA’s best chance yet to challenge the constitutionality of using race as a factor in admissions.

SFFA’s lawsuits are but one part of cultural grappling with the question of affirmative action in higher education admissions policies. In 2019, the medical school at Texas Tech University came to an agreement with the U.S. Department of Education’s Office of Civil Rights under which it would stop using race as a factor in admissions. The agreement, reached 14 years after the Center for Equal Opportunity filed a complaint with the U.S. Department of Education, effectively declared the Trump administration’s position on affirmative action: namely, that race should not be a factor used in admissions. Betsy DeVos, as Trump’s secretary of education, made this position clear, signaling a policy position that echoed some of the tenets of the president’s promise to “Make America Great Again” and return the United States to some image of its supposed former version of itself.

Affirmative action suffered another blow in November of 2020, just days before the First Circuit announced its decision in the Harvard case, as California voters considered Proposition 16, an initiative that would have repealed the law prohibiting state-funded institutions of higher education from considering race as a factor in admissions. Proposition 16 would essentially have allowed for a return of affirmative action programs, and it came to the ballot in an election with historic voter turnout (and during a pandemic). Yet, despite the reputation of being a progressive state, Proposition 16 was rejected by more than 57%, or more than 9 million votes. It is worth noting that California is one of the most racially diverse jurisdictions in the nation, yet even in localities where liberal voting blocs prevailed in the presidential election, those same voters did not favor the progressive position on the issue of affirmative action.

One lens through which to view the outcome on Proposition 16 involves the concept of “preference falsification,” which has been used to understand and explain the way that groups collectively move and respond in social and political situations.  The concept, developed in the mid-1990s by the economist and political scientist, Timur Kuran, has found renewed currency in political discourse relating to affirmative action and race in the modern, polarized political climate. Preference falsification is the act of misrepresenting one’s preferences because of perceived social pressures. “It aims,” Kuran wrote, “specifically at manipulating the perception of others about one’s motivation.”

This concept may explain why some liberal and progressive counties in California rejected affirmative action. Where individuals may perceive that the socially acceptable position is to favor affirmative action and its support of minority students in admissions, they may still cast their secret ballot in favor of their personal preference to benefit their own family and students.  Nevertheless, according to Kuran’s historical research, a critical mass of preference falsification can lead to a cascade effect, where what is collectively considered to be socially acceptable changes much more rapidly than expected.

This brings us back to the First Circuit’s decision in the Harvard case. Though the decision may be lauded as a victory for proponents of affirmative action policies and the use of race in admissions, a closer consideration of the issue in a broader context reveals that the Harvard decision is unlikely to be the last word on the subject, even if the case reaches the Supreme Court.  And even though the issue of affirmative action is being considered in the midst of both a profound social justice movement and a dramatic change in presidential administrations, a majority of the current justices of the Supreme Court would appear to be less inclined to uphold race-based admissions policies than any court since the first wave of the Civil Rights movement in the 1960s. This, combined with a global pandemic that has fundamentally changed the ways in which social groups interact with one another, make the concept of preference falsification both more resonant and unpredictable than ever. The First Circuit has ruled, but little remains settled.

Natasha N. Varyani is an Associate Professor at New England Law | Boston. She teaches in the areas of Property, Tax and Critical Race Theory.  Before coming to academia, Professor Varyani advised mulit-jurisdictional entities on their tax positions. (Professor Varyani is of South Asian descent and was not accepted into her first choice undergraduate institution).


Grand Jury Service: Observations From a Criminal Lawyer

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by Jack W. Pirozzolo

Viewpoint

About the last thing I ever expected was that I would end up serving on a grand jury. I am currently an attorney in private practice at a large firm, where much of my practice involves the defense of organizations and individuals in criminal matters, including grand jury investigations. Before joining my current firm, I spent over ten years as a federal prosecutor in the U.S. Attorney’s Office in Boston and handled many lengthy, sometimes years-long, grand jury investigations.

The grand jury notice came in the spring and called me for grand jury duty in Norfolk County Superior Court in early July. According to the notice, if empaneled, I would be required to serve three days per week from 9:00 a.m. to 4:00 p.m. for approximately three months over the summer. Although such service would pose a major complication for my practice, I was not concerned. First, I expected that, given my background, there was no conceivable way I would get selected for the grand jury. Second, I figured that if, by some off chance, I did get selected, the summer months might be a slow time for the Court, so there would be a decent chance that the schedule of cases would not be full.

On the evening before I had to report, I sat with my wife and one of our kids at dinner and went over the jury form I needed to submit the next day to the Court. The form is intended to identify aspects of a potential grand juror’s background that might make the juror biased or otherwise not suited to serve.  We all chuckled as I went through the questions: Do you or any of your family members have any experience with the criminal justice system? Do you or any of your family members have any connections to law enforcement? Have you or any of your family members ever been a victim of a crime? I answered yes to virtually every question asked and then provided the required detail. We all believed that I would show up, get excused, and then head to the office later in the morning.

We were wrong. I arrived at the Norfolk County courthouse at the required time and eventually joined about a hundred other prospective grand jurors. We congregated in a courtroom before the presiding judge, who was there to select the twenty-three of us who would serve as grand jurors for the next three months. Grand jury selection proceeds similarly to jury selection for trials, with one major difference: there is no defense attorney or defendant. Only the prosecutors, the judge, the clerk, and the court officers are present.

The presiding judge told us that she would seat twenty-three jurors beginning with juror number one. She invited any juror whose number was called to approach the bench and inform her whether there was any reason that the juror could not serve on the grand jury. She had seated about half of the grand jury panel when she got to my number. I approached the bench, expecting that she would immediately excuse me after seeing my disclosure form. Instead, she had only one question for me: “Could I be fair?” Of course, my answer to that was “yes.” Having spent ten years presenting matters to grand jurors who were pulled away from their daily commitments to serve, I did not think it was either reasonable or prudent for me to protest that I was too busy to serve. I took my seat in the box.

Once all twenty-three of us were selected, we were escorted to the grand jury room for orientation. After a briefing on logistics, two prosecutors took over the balance of the orientation, which consisted of a process often referred to as the “preliminary legal instructions.” This process essentially consisted of the prosecutors reading to us model jury instructions for the Massachusetts criminal code. For more than two hours the prosecutors read, in detail, the instructions for each element of crimes ranging from assault and battery with a deadly weapon, possession with intent to distribute, larceny, homicide, etc. They then informed us that they would re-read the relevant instructions for the specific criminal offenses each time they presented a specific case for indictment.

I have been a lawyer for over twenty years and I have participated in scores of jury instruction readings. This was, however, my first experience sitting through jury instructions as a juror. The experience caused me to re-think my own assumptions about jury instructions and has led me to a couple of observations.

First, the preliminary instruction process for the grand jury needs to be reconsidered. A wholesale reading of the elements of multiple crimes, devoid of any factual context, served very little useful purpose, as there was simply no way that the grand jurors could have meaningfully and usefully processed the information the prosecutors were presenting. I am not suggesting that there was anything sinister in what the prosecutors were doing. But a two-hour reading of the elements of various crimes risked leading the grand jurors to develop an incomplete and, in some ways, inaccurate understanding of the relevant legal concepts.

My second observation regarding jury instructions developed over my entire time serving on the grand jury. As the grand jury moved on to the job of hearing and deliberating on specific cases and deciding whether there was probable cause (which is the only responsibility of the grand jury), I grew increasingly uneasy about what has become a well-settled and traditional practice on how juries are instructed. As part of the standard protocol, prosecutors read to us the relevant model instructions on each case immediately before our deliberations. My experience listening to these instructions as a grand juror led me to think that model instructions may provide a statement of a rule or applicable standard, but do not provide an appropriate frame of reference for jurors to contextualize the application of the rule to the particular case before them. Model instructions seem to be written by lawyers for lawyers and not for the laypeople who make up the bulk of the jury pool and are the intended audience. As lawyers, I think we tend to have a blind spot on this because the language of jury instructions is part of our professional vernacular. We have developed a shared language and understanding of what those words mean. Lay jurors do not have that shared understanding. Based on my experience in the grand jury, jury instructions would more effectively teach the jurors how they are supposed to apply the law to the facts by focusing less on the broad statement of the “law” or “elements” and more on specific examples of fact patterns that fall both within, and without, the scope of a particular criminal statute. If they have not already, courts may also want to consider investing in empirical testing to assess which types of instructions are most effective at teaching jurors to apply the law correctly.

During the three months, we had several different prosecutors appear before us. Those who were most effective tended to have certain common elements in their presentations.

First, they were very well organized. They arrived on time and ensured that their witnesses were available and ready at the appointed time. Their examinations were well ordered and their witnesses, particularly the law enforcement witnesses, were well prepared. They presented the evidence in a logical, coherent and efficient way. They did not leave gaps in the evidence and they did not overload us with repetitive or cumulative evidence.

Second, they made effective use of visuals. I was surprised at how often raw surveillance video provided only limited information about an event. Some prosecutors recognized that limitation and used their witnesses to explain how the surveillance video, for example, fit into the broader body of evidence being presented. Somewhat surprising to me was the fact that few, if any, prosecutors used overhead diagrams as a tool. Use of such diagrams would have made testimony, particularly about crime scenes, far more coherent and effective.

Third, they used a “cast of characters” chart with faces and names of people relevant to the investigation. Such a chart was particularly helpful when used to help organize a case with a large number of witnesses and potential “targets” (the people for whom the Commonwealth would seek indictments). Too often prosecutors seemed to forget, or not appreciate, how difficult it was for us to process how the different names we heard during the course of testimony related to the events in question, particularly when we were hearing about the individuals and events for the first time. The more effective prosecutors, no doubt recognizing the value of cast of characters charts, used them.

Fourth, they made effective use of witnesses. They allowed fact witnesses to testify in a more open-ended fashion, keeping leading questions to a minimum. They also, when necessary, framed their questions in a way that kept witnesses focused on the relevant information. Lay witnesses, many of whom are themselves unfamiliar with the process, can have a tendency to inject irrelevant, speculative and potentially prejudicial information into their testimony. The most effective prosecutors were able to focus their questions in a way that minimized the potential for a witness to stray. Sometimes that meant judicious and timely use of leading questions.

Fifth, they were careful to present facts that were potentially exculpatory or otherwise mitigating. While the Supreme Judicial Court has not required prosecutors in all instances to bring exculpatory evidence to the attention of grand juries, they are not permitted to withhold exculpatory or other evidence that leaves the grand jury with a distorted view of the facts. Commonwealth v. O’Dell, 392 Mass. 445 (1984). Those prosecutors that appeared to present the facts fairly were the most effective.

Sixth, they showed an appropriate appreciation of the grand jury’s independence as arbiter of whether charges are brought. Prosecutors have a tremendous ability to control the grand jury, but it is the grand jury that makes the charging decisions. The more effective prosecutors were careful to honor the grand jury’s domain.

This leads to my final observation about grand jury service. During the three months I served on the grand jury, virtually every attorney with whom I spoke about my service (usually in the context of changing a schedule) asked me whether the panel had yet indicted a “ham sandwich.” This is a reference to the famously overused statement from Judge Sol Wachtler, the former Chief Judge of the New York Court of Appeals, who believed that grand juries do not serve the protective function for which they were originally intended and would indict a “ham sandwich” if asked by the prosecutors to do so. In my experience, Judge Wachtler’s characterization grossly distorts both the grand jury’s role and how it functions.

While it is true that most cases presented to the grand jury result in an indictment of some kind, that fact largely is the consequence of two structural aspects of the grand jury: first, that the grand jurors need only to find “probable cause” rather than proof beyond a reasonable doubt; and second, that an indictment requires only twelve of the twenty-three grand jurors to agree that the prosecutor has met the probable cause showing. Although I cannot discuss any particular cases because of the requirement of grand jury secrecy, I generally observed that the grand jurors with whom I served took their obligations both to find the facts and to apply the facts to the law seriously. The group often took considerable time sorting through evidence and the relevant jury instructions that had been presented by the prosecution before making a decision on a proposed indictment. While it was rare for the grand jury to reject all charges, called issuing a blanket “no bill” (although it did happen), it was very common for the grand jury to “no bill” (reject) some, but not all, charges presented for indictment. In that respect, the grand jury played a significant role in determining the precise charges brought against a defendant. At least in that respect, the role of the grand jury as a shield was genuinely meaningful.

When I told colleagues that I had been selected to serve on a grand jury and that I would be tied up during most of the business day, three days per week, for three months, they were incredulous. The truth is that no one was more surprised than I. But looking back, it was well worth it. Not only did I make some new friends, but I also received a rare gift for someone in my position – I was able to see my profession from a completely new perspective, one that has given me a deeper and more complete view of the system in which I make my professional home.

Jack Pirozzolo is a partner in the Boston Office of Sidley Austin LLP where he represents individuals and organizations in a wide variety of civil and criminal matters.  Before joining Sidley, Jack spent ten years as an Assistant United States Attorney in the District of Massachusetts, the last five of which he served as First Assistant United States Attorney.


Learning from Omar: The Case for Public Funding of Postconviction Innocence Defense

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by Sharon L. Beckman

Viewpoint

In 2020, the Boston College Innocence Program secured the exoneration of clients Frances Choy and Ronnie Qualls and the release of a third client pending further litigation. The program has also made significant contributions to law and practice reform efforts. The Boston Bar Journal asked BCIP’s Director, Boston College Law Professor Sharon Beckman, to comment on what is behind the program’s success and to share a lesson learned in her clinic.

About the Boston College Innocence Program

BCIP is an academic and clinical legal educational program at Boston College Law School that allows students and faculty to study the problem of wrongful convictions and work to remedy and prevent these injustices. We investigate and litigate on behalf of wrongfully convicted clients, and we engage in research and advocacy in support of law and policy reform initiatives. Our primary goals are to educate reflective practitioners who use their legal skills to help victims of injustice, and to generate ideas for making the legal system more just. BCIP students work with academics across the university and with a wide range of legal professionals, but they learn the most from our clients: men and women wrongfully convicted in Massachusetts for crimes they did not commit who give us the privilege of being their legal advocates. It is in accompanying them on their quest for justice that we gain insight into how the system has failed them and how it could be reformed. This started with our very first client, Christopher “Omar” Martinez.

Omar’s Ordeal

In 1999, when Omar was 19 years old, his friend Eddy Reynoso was shot to death just inside the door of his Springfield apartment. The prosecution alleged that Omar, who had never been involved with any crime, murdered Eddy because Eddy teased him about a girl. No physical evidence connected Omar with the crime, and witnesses testified that someone else had threatened Eddy just two days before he was killed. Nevertheless, after seven hours of custodial police interrogation, Omar, a Spanish speaker, signed an inculpatory statement typed in English by the police. Several aspects of the statement did not add up, a red flag for false confessions. Notably, the statement set forth a purported conversation between Omar and Eddy right before the shooting that was inconsistent with the earwitness accounts of Eddy’s neighbors who heard the killer speak to Eddy before shooting him to death. The neighbors heard the killer ask “Are you Eddy?,” a question that Omar, who knew Eddy, would not have asked. Defense counsel’s opening statement promised jurors that they would hear from a neighbor who knew Omar and would tell them that the voice he heard at Eddy’s door was not Omar’s; but that man, Wilbert Diaz, did not testify at Omar’s trial. On October 2, 2002, Omar was convicted of second-degree murder and sentenced to life in prison.

In 2004, Omar’s appointed appellate counsel, Chauncey Wood, filed a motion for postconviction relief, along with a motion for funds for an investigator to locate and interview Diaz. The prosecution opposed both motions. The judge who had presided over the trial denied these motions, and the Massachusetts Appeals Court affirmed, deferring to the trial judge’s finding that “the defendant failed to make a prima facie showing that Diaz would provide exculpatory evidence and that there was no reason to believe that Diaz’s testimony would likely have influenced the jury’s conclusion.” Commonwealth v. Ortiz, 67 Mass. App. 349, 354 (2006). Wood argued that, since Diaz told the police he knew Omar, it could be inferred that Diaz would be able to testify that the killer’s voice was not Omar’s. The Appeals Court disagreed, speculating that it was “equally inferable that Diaz, based upon his friendship with the defendant, chose not to tell the police that he recognized the voice as being that of the defendant.” Id. The SJC denied Omar’s application for further appellate review in 2006.

A decade later, after Omar had served 16 years in prison, BCIP joined Wood as pro bono counsel for Omar. Over the next three years, BCIP Supervising Staff Attorney Charlotte Whitmore led a BCIP team that included three law professors, eight law students, two graduate social work students, and several undergraduates who collectively committed thousands of pro bono hours to Omar’s case. Wood and the BCIP legal team investigated, researched, drafted, and litigated a successful motion for postconviction relief for Omar. Lauren Rossman, BC Law ’19 and now a BCIP Staff Attorney, was awarded the SJC’s 2019 Adams Pro Bono Publico Award for her investigative work on Omar’s case. The investigation was aided by funds from a federal grant to the Committee for Public Counsel Services, BCIP, and the New England Innocence Project. It also relied on a grant from “Running for Innocence,” a nonprofit fundraiser established by CPCS Innocence Program Director Lisa Kavanaugh in honor of her client Victor Rosario, who ran long distances on a dirt track at MCI Norfolk before his wrongful convictions were vacated. When Rosario was exonerated after 32 years of imprisonment, he and Kavanaugh ran the 2016 New York Marathon together to raise funds to help other prisoners seeking to prove their innocence.

By 2019, the trial judge had retired, and Omar’s new motion for postconviction relief was assigned to Judge John Ferrara. Commonwealth v. Ortiz, Hampden Superior Court, No. 9979CR02546, slip. op. (May 9, 2019). During an evidentiary hearing that spanned four days, Wilbert Diaz testified that he knew Eddy and Omar from the mini-mart where they all worked part-time. He was very familiar with Omar’s voice. Diaz testified that he did not recognize the voice of the man he heard speaking with Eddy before he was shot, but he was positive it was not Omar’s voice. When he learned Omar had been arrested for Eddy’s murder, Diaz was “shocked.” 

Diaz testified that he moved out of his Springfield apartment shortly after the shooting and settled in Worcester. He met with the trial prosecutor over a year before Omar’s trial, in response to a summons the prosecution sent to his Worcester address. After meeting with Diaz and going over his statement with him, the prosecutor told Diaz he likely would not have to appear as a witness. Although the Commonwealth was under court order to provide defense counsel with the current addresses of those on its witness list, the prosecution listed Diaz as living at his old Springfield address. The prosecutor never provided defense counsel with Diaz’s Worcester address. This nondisclosure explained why Omar’s trial attorney failed to deliver on his promise to the jury: he could not locate Diaz, because he was looking for him in the wrong place.

In vacating Omar’s convictions, Judge Ferrara found that the “most compelling evidence presented” was the “highly credible” testimony of Wilbert Diaz. Contrary to the original trial judge’s assessment that “the absence of Diaz’s testimony did no ‘real harm to the overall defense’ and ‘no real potential tactical disadvantage . . . could have arisen from the failure’ to call Diaz,” 67 Mass. App. Ct at 361, Judge Ferrara found that Diaz’s testimony was “exculpatory and important,” casting real doubt on the justice of Omar’s convictions. On April 23, 2019, Omar, then 39 years old, was released into the arms of his family members, after having served nearly two decades in prison for a crime he did not commit.

The Human Toll of Wrongful Convictions

Rarely is there a single cause of a wrongful conviction. More often, the misconduct or errors of multiple actors interact and cascade into an erroneous result. In Omar’s case, Judge Ferrara found that prosecutorial misconduct and ineffective assistance of defense counsel prevented the jury from hearing Diaz’s exculpatory testimony. He also found that the police had engaged in interrogation techniques known to produce false confessions. Omar’s case is not exceptional: according to the National Registry of Exonerations (NRE), 85% of those wrongfully convicted of murder and exonerated in Massachusetts since 1989 were victims of official misconduct by prosecutors or police. 33% received an inadequate defense. Five Massachusetts exonerees had signed incriminating statements or were alleged by police to have confessed to crimes they did not commit. Some of BCIP’s research and policy work addresses the known causes of wrongful convictions in an effort to prevent them before they occur. Here, however, my focus is on what happened to Omar after his wrongful conviction: we now know that as a result of the denial of Omar’s 2004 motion for investigative funds to find Diaz, Omar spent an extra 15 years in prison for a crime he did not commit.

Omar has the support of a loving family and a social work team headed by Claire Donohue, BC Law’s Director of Interdisciplinary Practice; yet the tragedy of his decades of wrongful imprisonment can never be made right. Imagine if you were wrongfully imprisoned from age 19 to age 39. What would you have suffered? What important relationships and life experiences would you have missed? Now multiply that suffering and loss by 75 — the number of Massachusetts prisoners exonerated since 1989. Collectively, they served over 950 years in prison — an average of almost 13 years each — for crimes they did not commit. While more research is necessary to understand all of the reasons it takes our legal system so long to remedy a wrongful conviction, it is clear that inadequate funding for postconviction indigent defense plays a significant role.

Judicial Discretion Regarding Postconviction Indigent Defense Funding

Mass. R. Crim. P. 30(c)(5) authorizes courts to “exercise discretion” to appoint counsel and “to allow the defendant costs associated with the preparation and presentation of a motion” for postconviction relief. So what went wrong in Omar’s case?  

In affirming the trial judge’s denial of investigative funds to Omar, the Appeals Court cited the Reporter’s Notes to Rule 30(c)(5). The Notes advise judges to “take into account the likelihood that the expenditures will result in the defendant’s being able to present a meritorious ground for a new trial.” Omar’s case illustrates the problem with that predictive enterprise. His motion was denied because he could not prove in advance the very thing he sought funds to investigate: whether Diaz’s testimony could help prove his innocence. Conditioning defense funding on already showing “a meritorious ground for a new trial” creates an untenable “Catch-22” for indigent people, who need public funding for investigation and assistance from experts to discover the facts and science corroborating their innocence claims. In cases like Omar’s, where funds are sought to discover exculpatory information that is not already in the trial record, the suggestion in the Reporter’s Notes that judges should “take into account their familiarity with the original record . . . in declining to appoint counsel” seems more likely to invite confirmation bias than to promote justice.

In Omar’s case, the courts may have also relied to Omar’s detriment on the comments in the Reporter’s Notes that, “unlike a request for costs prior to trial, in the context of a new trial motion there is no reason to deny the Commonwealth an opportunity to participate in a hearing on this type of request to avoid [] prejudice” to the defense, and that “the Commonwealth’s participation in this process will result in a better informed decision.” While opposing Omar’s postconviction motion for funds to locate Diaz, the prosecution never informed the trial judge or the Appeals Court that it knew Diaz’s location, let alone that it had known Diaz’s location before trial and had violated the discovery order to produce it to defense counsel. The prosecution actively impeded Omar’s efforts to secure funds to locate Diaz, while continuing to conceal its own ongoing misconduct. Tragically, the Commonwealth’s participation in Omar’s postconviction funds litigation led to a less informed decision, prolonging the incarceration of an innocent man.

As the source of its guidance on Rule 30(c)(5) motions for funds, the Reporter cites Commonwealth v. Conceicao, 388 Mass. 255 (1983), holding that indigent prisoners have no right to counsel in postconviction proceedings, and dicta in a footnote in Commonwealth v. Davis, 410 Mass. 680, 684 & n. 7 (1991), reasoning that if there is no right to postconviction counsel, then “surely” the Constitution does not require the Commonwealth “to fund postconviction investigations that may reveal exculpatory evidence.” Conceicao denied postconviction counsel to an indigent prisoner convicted solely on the basis of eyewitness identification testimony under circumstances that would not be allowed today. Today, we know that 75% of Massachusetts DNA exonerees were victims of eyewitness misidentification. Social science research about the fallibility of human perception and memory has changed the law, as well as police and trial practices, relating to eyewitness identification testimony. The SJC’s decisions granting postconviction relief under Rule 30(b) now recognize the importance of newly discovered evidence, including forensic and scientific advances, in determining whether “it appears that justice may not have been done.” Conceicao emphasized the “direct costs and serious collateral disadvantages” of appointing counsel in cases where the trial court sees no “need or the likelihood . . . for a constructive contribution by counsel,” without even mentioning that Conceicao had denied any involvement in the crime. Clearly, in 1983, the SJC did not anticipate the important role that factual investigation and scientific expertise would come to play in the Innocence Movement that was yet to come.

Toward Public Funding of Postconviction Innocence Defense

In the context of motions for DNA testing or other forensic or scientific testing of physical evidence, Rule 30(c)’s long delays and impediments led to the enactment of G. L. c. 278A, which authorizes courts to order postconviction forensic or scientific analysis testing for individuals who assert factual innocence of the crimes for which they were convicted. To obtain testing, a person must show, among other elements, that the requested analysis “has the potential to result in evidence that is material to” factual innocence. The SJC has construed G. L. c. 278A liberally in order to achieve its goal of providing increased, expeditious access to scientific or forensic testing that is potentially material to a claim of factual innocence. See, e.g., Commonwealth v. Wade, 467 Mass. 496, 509 (2014).

G. L. c. 278A provides an important investigative path to justice in cases where DNA or other scientific testing of physical evidence could be material to the question of factual innocence, but only 20% of Massachusetts exonerations have been achieved through DNA testing. In the other 80% of Massachusetts exonerations, the convictions were vacated on other grounds, including newly discovered evidence and expert testimony. Omar’s case illustrates why a similar recalibration of the cost-benefit analysis is required for Rule 30(c)(5) motions for postconviction indigent defense funds.

BCIP student Nat Carney, BC Law ’21, wrote an excellent paper last year in my Wrongful Convictions seminar calling for legislation similar to G. L. c. 278A for motions for postconviction defense funds. My former student Samuel Jockel published a paper urging the SJC to reverse Conceicao and recognize a Massachusetts constitutional right to postconviction counsel for prisoners asserting factual innocence. Fulfilling the Promise of Gideon in Massachusetts:  Providing a Post-Conviction Right to Counsel for Prisoners Asserting Innocence, 26 B.U. Pub. Int. L. J. 205 (2017). Their ideas are compelling. Another approach would be for the SJC Standing Advisory Committee on the Rules of Criminal Procedure to undertake a review of Rule 30(c)(5), and the corresponding Reporter’s Notes, in light of lessons learned from the Innocence Movement and Massachusetts exonerations. Whether by legislative or judicial action, Massachusetts must find a way to afford all indigent prisoners who maintain they were wrongfully convicted meaningful access to postconviction legal representation, including funding for investigation and expert consultation. This is a moral duty of the Commonwealth, not something that should depend on private charity or the pro bono efforts of students.

In the meantime, courts ruling on postconviction motions for defense funds should exercise their discretion to grant these motions more liberally, as they do now in the pretrial context and as the text of Rule 30(c)(5) permits them to do. They should allow such motions whenever the investigation or expert consultation has sufficient potential to produce information material to a claim of wrongful conviction such that a similarly situated person with financial resources would expend the funds to pursue it. In considering the cost of such motions, judges should also consider the human and systemic costs of denying indigent persons who maintain their factual innocence the funds necessary to investigate and prove their claims. No one should suffer as Omar did, serving time in prison for a crime they did not commit, merely because they lack the resources to defend themselves.

Sharon L. Beckman is Associate Clinical Professor of Law at Boston College Law School and the Director of the Boston College Innocence Program.  She serves on the SJC Standing Committee on Eyewitness Identification, the Massachusetts Conviction Integrity Working Group, and the CJA Panel of the U.S. Court of Appeals for the First Circuit.  She was a law clerk for (ret.) U.S. Supreme Court Justice Sandra Day O’Connor and for the Hon. Frank Coffin on the U.S. Court of Appeals for the First Circuit.


Clerks’ Remembrances

Appreciation of Chief Justice Gants

by Abrisham Eshghi 

Viewpoint

“Imagine a world.” Some of the Chief’s greatest questions began with these three words. Sometimes, they prefaced a thought-provoking hypothetical where the Chief would alter the facts. Other times, they required thinking through the broader implications of a potential ruling that initially seemed straightforward. But, most often, these words were an invitation to imagine a world that is better than ours, and to imagine what we need to do to get there.

I had the extraordinary privilege of clerking for Chief Justice Gants in the 2017-18 term. It was a year spent trying to reason like him, react like him, probe like him, and simply keep up with him.

He welcomed disagreement. A cherished mantra of his was “when you point out that my reasoning does not make sense, there are only two possible outcomes: Either you have allowed me to avoid making a mistake, or you have identified that there must a better way to articulate this.” In fact, he assigned his clerks homework on this topic, such as a chapter from Malcolm Gladwell’s Outliers discussing a theory of why Korean airlines experienced a disproportionately high rate of plane crashes. The theory begins with the fact that when signs of danger appear during a flight, the pilot who spots the signs must alert the other pilots. Yet in cultures that value deferential communication styles with authority figures, this may translate to a cockpit where instead of the lower-ranking pilot unequivocally communicating imminent danger to the higher-ranking pilot, the lower-ranking pilot instead meekly suggests that something may not be quite right. My takeaway – yell at the Chief so he does not crash the plane!

He welcomed compassion. He truly never lost sight of the people that were governed by the cases that came before the Court. While other judges might start and end a case with the routine application of a statute or precedent, in the Chief’s hands, the case blossomed into an opportunity to examine how citizens of the Commonwealth live and experience the world around them. Standards of how a “reasonable person” would act or think are baked into almost every area of the law, and “common sense” is routinely invoked by courts as grounds for choosing one argument over another. But the Chief cautioned his clerks against blindly accepting words like “reasonableness” and “common sense,” as they were often shorthand for the convenient status quo. “Reasonable for whom?” he would ask. “Common sense for whom?”

He welcomed accessibility. The Chief never wanted to “hide the ball” in his work and habitually requested that his clerks craft judicial opinions so that “even an intellectually curious fourteen-year-old” could understand what he was trying to say. If, in the course of drafting an opinion, we encountered a tortuous precedent, he would insist that we “say it better” without replicating the difficulties. He had a knack for homing in on the occasionally muddled or misguided ways in which parties to a case framed issues, and then crafting a cleaner explanation of what the case was really about. The ease with which he exercised this last skill was particularly admirable.

It pains me to think about how much more he had in him to give. My only comfort is in sifting through my myriad memories of the time I was lucky enough to share with him. I will miss his brilliant questions, and his even more brilliant solutions. I will miss his antiquated cultural references that went over my head. I will miss his Red Sox metaphors that also went over my head. I will miss him addressing the trio of himself, my co-clerk Maia, and me as “us gals.” I will miss the intense swell of pride I felt during his 2015 speech at the Islamic Society of Boston Cultural Center when he said “[y]ou do not stand alone.” I will miss him spontaneously making up new lyrics to the song “The Impossible Dream” from Man of La Mancha. I will miss our rejuvenating “mental health walks” as we meandered through Boston Common. I will miss watching him absentmindedly devour an entire baguette in one sitting. I will miss seeing the two sizeable portraits of Justice Louis Brandeis and Justice Thurgood Marshall looming over his desk and thinking to myself that, with room on the wall for a third, a portrait of the Chief would complete this triptych of legal giants. I will miss the sparkle in his eye when he knew there was challenging work to be done. I will miss his infectious fits of giggles. And I will sorely miss him next year at my wedding, where he had promised to officiate.

I recently found the copy of The History of the Law in Massachusetts that the Chief gifted me on the last day of my clerkship. His parting words to me, penned on the front cover in his quirky doctor’s scrawl, were “believe in yourself as I believe in you.” Prior to his death, these words brought me great comfort. But in death, his words take on a different form. I feel them almost vibrating off of the page. Demanding that I believe in myself. Demanding that the time is now to take action. Demanding that I pick up the baton and continue his work.

Chief Justice Gants was inimitable. But we must now try our hardest to step into his magnificent mind so that we may carry on his extraordinary legacy.

I hope you’re still getting in good trouble, Chief.

Abrisham Eshghi is an Assistant Attorney General in the Civil Rights Division of the Massachusetts Attorney General’s Office. She clerked for Chief Justice Gants during the 2017-18 term.

Appreciation of Chief Justice Gants

by Larisa Bowman and Mike Kaneb

Viewpoint

We had the enormous privilege and pleasure of serving as law clerks to Chief Justice Gants during his first full year on the Supreme Judicial Court (2009-2010).  He was an extraordinary teacher and mentor, and the year we spent in his chambers fundamentally shaped how we view the law and our role and responsibilities as lawyers. 

Law clerks, when they are able to be helpful at all, tend to treat every case as a purely legal problem that can be solved by identifying the perfect case citation, judicial doctrine, or other legal tool.  Chief Justice Gants took a broader view: all cases presented legal problems to solve, but most cases also required a judgment that weighed considerations of policy, administrability, and equity.  In deciding a case, the Chief was always grateful for a clerk’s cogent legal analysis and the best citations available, but it was usually clear that — having been pretty sure from the start what the law was likely to provide — he had been spending his own time thinking through what the real-world consequences of the Court’s decision would be for lawyers, judges, and most particularly, everyday people. 

He loved people — all sorts of people, including the two of us, a couple of strangers he found already hired and deposited with him even before he was confirmed.  His law clerks were special to him, and he taught us with humor and affection.  “You’re not a Jedi Knight yet, but you show great promise” is how he began his gentle review (and quiet wholesale restructuring) of the work we produced for him in the earliest months of the term, when we knew the least.  He liked to take us on working walks across the Common to talk through cases that would be helpful to him as he worked out the shape of his decisions in his mind.  This met his need for constant activity in days that were always too short for everything he wanted to get done: work, mentoring, and a little light exercise all combined in one outing.  He was a brisk walker, but halfway across the street, we sometimes found we had left him on the corner: he never jaywalked, not even on the margin. 

Every few weeks, the Chief would invite us to a sit-down lunch at his favorite Chinatown cafe.  For the first few lunches, we expected that he had set the occasion to impart some great piece of wisdom or to let us know of some important development on the Court, but actually he just wanted noodles, a friendly chat, and a short break from his work.  During our year at the Court and in all the years that followed, the Chief kept up with our personal and professional news and also with the accomplishments of our spouses and children.  We never could figure out how he had the time or head space to manage this.

The Chief’s deep interest in people was at the heart of his work as a judge, and he was dogmatic only in his drive to deliver more justice to more people, inject more fairness into society, and bring more good to the world.  The clearest expression of his judicial philosophy is the statement he made in a 25th anniversary Harvard class report, that deciding cases required him to balance the “sometimes conflicting obligations of following the law and ensuring fairness.”  Worrying about the fairness of a legal rule requires a judge actually to see and consider the rule’s consequences for the individuals affected by it.  The Chief put all of his intelligence and experience and wisdom into seeing those consequences clearly and weighing them fairly.  First as an associate justice of the Court, then as its leader, the Chief believed the Court’s mission was not to hand down the law to the people but rather to make the law serve the people. 

Early on, his decisions took on this mission in smaller cases like Papadoupolos, where he dispensed with the Commonwealth’s unique “natural accumulation” rule for liability claims involving snow and ice, a legal doctrine that gave no consideration for people injured in falls and that had long survived only on the basis of its repetition in the case law.  Later, when he had reached the height of his own Jedi powers, he and the Court executed on this mission in much bigger cases, like Adjartey, which delivered a clear-eyed and comprehensive view of the systemic inequality and inequity that can arise in housing court, where most tenants are without counsel.  The Chief’s opinion in Adjartey made the problems of people who must rely on the housing court seen and heard for the first time, and made the judicial system responsible for addressing those problems.  Eleven years into our careers as lawyers, this challenge — to discern not only what the law allows, but also what fairness demands — is the most valuable, continuing lesson we take from our year working with the Chief.

The Chief never achieved his first great ambition, to play shortstop for the Red Sox, but as a judge, he had made it to the major leagues.  That is what is so deeply tragic about losing him now.  Six years into his role as the chief justice and with four years left before hitting the Court’s mandatory retirement age, he was really just rounding second base.  He had established himself as one of the great jurists in the history of the Supreme Judicial Court, and he was focused on making permanent his mark on the justice system writ large.  A hugely important report he had commissioned on racial disparities in the Massachusetts criminal justice system was published five days before his death.  The morning he died, he was hammering out details of a statewide eviction diversion initiative, which aims to address the civil justice gap across the Commonwealth’s housing courts as they brace to manage the economic fallout from the COVID-19 pandemic.  His heart was in the work of reform.  As we grieve, it is in large part for the work he leaves undone. 

Also, we miss him.

Larisa Bowman is a Visiting Associate Professor at the University of Iowa College of Law.  She clerked for then-Associate Justice Ralph D. Gants during the 2009-2010 term.

Mike Kaneb is Deputy Chief Legal Counsel to Governor Charlie Baker.  He clerked for then-Associate Justice Ralph D. Gants during the 2009-2010 term.


Coming Together for Change; Coming Together To Remember

by Radha Natarajan

Viewpoint

The sudden loss of Chief Justice Ralph Gants shook this community, even in a year when we faced a deluge of losses. The number of people affected by the news and the outpouring of stories about his impact underscore the many dimensions of his work, commitments, and leadership. While there is so much I could say about Chief Justice Gants – including his kindness, accessibility, and humor – I want to focus here on his approach to correcting and preventing wrongful convictions. Specifically, Chief Justice Gants should be remembered not only for what causes he chose to champion but how he pursued change.

Eyewitness Misidentifications & Wrongful Convictions

Moved by stories of exonerations, such as that of Bobby Joe Leaster in Boston, Chief Justice Gants was troubled by the number of wrongful convictions caused by eyewitness misidentifications. Almost a decade ago (even before he was Chief Justice), he referenced the now-well-known statistic that over 70% of wrongful convictions overturned through DNA evidence involved at least one mistaken eyewitness identification.

Chief Justice Gants recognized that making progress toward reducing wrongful convictions caused by eyewitness misidentifications was more complicated than the Supreme Judicial Court simply setting down new rules. Real change would necessitate a diverse set of stakeholders, rigorous study, and ultimately consensus recommendations. He appreciated, probably because of his own humility, that even the seemingly awesome power of the Court was insufficient to initiate and sustain the kind of changes that were necessary to tackle such a complex issue. The creation of the Study Group on Eyewitness Identifications (Study Group) followed.

Through the Study Group, then-Justice Gants brought together people in traditionally adversarial roles to undertake research, come to a common understanding, and develop guidance for the Court. This two-year voluntary undertaking by judges, prosecutors, police officers, defense attorneys, and researchers led to a Report with consensus recommendations. The recommendations were comprehensive, addressing everything from techniques to interviewing witnesses without contaminating memory, to administering non-suggestive identification procedures, assessing an identification’s reliability, determining its admissibility, and considering what information jurors required for the adequate evaluation of identification evidence. Justice Gants then sought public comment on the Report, again ensuring that various perspectives were involved and heard. Like other reports or endeavors he directed, Justice Gants had no intention of leaving this Report on a shelf to collect dust. To the contrary, Chief Justice Gants took the Report’s findings and implications seriously: he diligently studied the research referenced, carefully considered its recommendations as well as the public comments, and then used the Report to guide the Court’s approach to addressing eyewitness identification cases in the future.

Chief Justice Gants was committed to following where the evidence took him, even if it meant that there needed to be a radical shift in the law. This commitment was especially important in this area because, as he often said, the law had previously been guided by misconceptions or “common sense” that was at odds with scientific study. As a result, Massachusetts became a national leader in its approach to eyewitness identification evidence. He spoke often at conferences about the changes heralded by the creation of the Study Group. He was proud that the process involved so many people, recommended such transformational changes, and had the potential to avert the injustice of wrongful convictions. He had hoped that the Study Group would not only impact real people, and prevent tragedies like what happened to Bobby Joe Leaster, but that the process could be replicated to tackle other seemingly intractable issues within the criminal legal system. In short, it represented the culmination of so many of his deeply held values.

Tried & True

The Study Group was not the only example of how Chief Justice Gants chose to tackle issues of injustice. He believed that bringing people together toward a common understanding, based on diligent research and data, was necessary for change. He understood that education was an essential, but not sufficient, part of the process. It is why he held a mandatory implicit bias training for the judiciary, why he commissioned Harvard’s Criminal Justice Policy Program to undertake an in-depth study on the stark racial disparities found in the Massachusetts criminal legal system, and why he tasked a Standing Committee to develop science-based jury instructions on implicit bias. In each instance, he brought people together to study carefully and thoughtfully the issues that required the most significant changes, and in each instance, it was meant to be only a starting point. He did not want to push people to accept change; he wanted to bring people along until there was momentum behind change.

Chief Justice Gants was committed not only to raising the awareness of, and bringing evidence and data to, the bench or bar generally; he was committed to learning himself. For example, in 2018, he accepted an invitation to attend a dinner of faculty who had recently presented at a New England Innocence Project Litigation conference. The faculty included judges, prosecutors, defense attorneys, scientists, and “innocence advocates.” Despite suffering from a recent concussion, Chief Justice Gants attended the gathering and gave a few remarks, mostly to emphasize his commitment to correcting and preventing wrongful convictions. He also expressed his gratitude to the faculty for creating such an incredible opportunity to hear from so many people who, despite playing adversarial roles in litigation, had come together for this purpose. The rest of the night he spent listening, one by one, to what everyone had to say and to our ideas for creating meaningful change. Subjects ranged from the more mundane evidentiary questions to the profound areas of judicial culture and finality. And last year, when the New England Innocence Project held an event at which exonerated men and family members told stories about the impact of their wrongful convictions, Chief Justice Gants came to listen then too. He never tired of learning.

What Now?

Chief Justice Gants believed that change was possible by bringing people together, having them learn together, and asking them to build toward consensus. In that way, he was a great leader because transformational change did not depend on him alone. It was his inspiration and vision, more than his position, that laid the foundation for these efforts, and there are others who share that same commitment. What Chief Justice Gants started does not need to end with his passing; that was the true genius of his process and the true measure of his humility. We must sustain and continue the things he started, and with him in mind, we must do them together.

Radha Natarajan is the Executive Director of the New England Innocence Project (NEIP), an organization whose mission includes correcting and preventing wrongful convictions and supporting exonerees upon release. Prior to joining NEIP in 2015, Radha spent twelve years as a public defender, most recently at the Roxbury Defenders. She teaches a seminar on Wrongful Convictions at Boston University School of Law.


Interview with Robert Vitale

by Stephen Riden

Viewpoint

As chair of the Boston Bar Journal, I had the opportunity to talk with Robert Vitale, Chief Court Officer of the Supreme Judicial Court, about his professional and personal relationship with Chief Justice Gants. What follows is an excerpt of our discussion, condensed and edited for clarity. 

Q: Over the years you must have met a lot of judges. What was your first impression of Justice Gants?

 A: Yes, I have. However, Chief Justice Gants stood out because I could tell he was a very kind and caring person. It was easy to see how passionate he was about his work and that he had a great sense of humor.

Q: How would you generally describe Justice Gants?

A: I would describe him as an all-around great guy and a good friend. He was very humble, compassionate, and intelligent. He cared about everybody. He had endless energy. Frankly, I don’t know how he kept up the schedule he did. I feel like he worked twenty hours a day seven days a week.

Q: Could you provide an example?

 A: In addition to his regular work schedule, he made it a point to go out and visit different courts around the state. The purpose for the visits was so that he could meet as many court employees as possible.

Typically, the visit would start with a small meet and greet with the court’s ”management team,” the judges, magistrates, registrars, chiefs and assistant chiefs of probation and security. He would discuss a variety of issues and answer any questions they had.

From there, assuming the court had a jury pool, he always wanted to address the jurors. He wanted to thank them for their service and let them know the importance of the work they were doing for the Commonwealth.

He would then take a tour of the court. This would include going to each department and stopping by everyone’s desk to say hello. He did not want to disturb anyone, but he wanted to meet as many employees as possible to say hello and thank them for the important work that they do every day.

In addition to meeting the staff, he always wanted to have an employee luncheon. This was his favorite part of the visit. The luncheon was only for “line” staff, not management. He said it was important for him to meet the employees who are in the trenches and on the front lines. He always told them that he valued their perspective and that they should not hold back on their opinions. He wanted to hear the good, the bad, and the ugly. He took notes and let the staff know that whatever was said at the luncheon was confidential and that he appreciated their honesty.

Q: He seems like the kind of guy who could talk to anyone, is that right?

A: Absolutely. I would say that, given the position he was in, I don’t think you ever felt like you were talking to the Chief Justice – he was just so easy to talk to. He had a great sense of humor, he was quick witted, and he never took himself too seriously.

Q: What can you share about how he treated lawyers who appeared before him?

A: He treated everybody with respect. If he disagreed with an attorney, he always did it respectfully and did not embarrass anyone. For him, it was always about being fair, respectful and trying to get the right result.

Q: I understand that he was always looking for opportunities to make improvements to the court system. Did you observe that in your interactions with him?

A: Absolutely. He was always open to hearing new ideas. If something wasn’t working, you were free to tell him it wasn’t working and why you thought it wasn’t. He did not have the “my way or the highway” mentality. He would always ask, “what can we do to fix it?”

Q: Do you have a sense of what else he wanted to accomplish?

A: One of the things that he was most passionate about was access to justice. He worked tirelessly to promote and expand access to the courts for everyone in the Commonwealth.

At the time of his death, he was working on several issues that were priorities for him. These included the Massachusetts Eviction Moratorium that was set to expire on October 18, racial injustice, and criminal justice reform.

Q: Is there anything else you would like to share?

A: Chief Justice Gants was an avid sports fan. He followed all the New England sports teams but he really loved the Boston Red Sox. On July 28, 2014, he was invited to throw out the ceremonial first pitch before the Red Sox played the Toronto Blue Jays.

He told me he had been practicing to make sure that he didn’t bounce the ball before the plate. He was both excited and nervous at the same time but it was such an honor to have been asked.

Lastly, I would say that we are all going to miss him, certainly those of us who worked closely with him every day. This is a huge loss for the court system in general. He wasn’t just my boss and colleague, he was also my friend.

Stephen Riden is a commercial litigator at Beck Reed Riden LLP, who represents corporate and individual clients in a wide array of disputes across the country. He is the chair of the Boston Bar Journal.


Access to Justice: Reflections on Chief Justice Gants

by Susan M. Finegan

Viewpoint

It was a privilege to partner so closely with Chief Justice Gants on access to justice initiatives over the past ten years, having served with him for ten years as a member of the Massachusetts Access to Justice Commission (commission), and then as his commission co-chair.  Throughout his time on the Supreme Judicial Court (SJC), he cared so deeply about access to justice, constantly thinking strategically about ways to make the civil justice system more accessible and fair.  Soon after his appointment as an associate justice of the SJC, Chief Justice Marshall approached him to become the co-chair of the commission.  This new role was his first engagement with civil legal aid and access to justice issues; true to form, he rolled up his sleeves to learn as much as possible, and energetically set to work.  Four years later, during the appointment process for the Chief Justice position, he filled at least two pages of his application describing the various commission projects on which he collaborated with so many during his first years on the commission.  In fact, in answering the judicial application question, “What are you most proud of?,”  he listed his work as co-chair of the commission first.  Certainly he did not lack for other professional achievements in his decades-long, storied career as a trial lawyer and trial and appellate judge, but his commission work clearly embodied the essence of what was truly important to him, as a judge and a person.  

His emphasis on collaboration and teamwork was one of the hallmarks of his commission work.  Throughout his tenure as co-chair, he encouraged people to work with him and engaged deeply with them – applying his laser focus and astonishing work ethic to every project.  He relished working with the impressive and committed people of the commission, many of whom he had not met before joining, and likely would never have met had he not been asked to take on the co-chair role.  He made the work enjoyable, too, by connecting with people on a human level, not just as Chief.  He mixed his dry sense of humor with a dizzying familiarity of outdated cultural references and an encyclopedic knowledge of sports.   

During his Chief Justice nomination period, he spoke several times about life lessons learned from his parents.  The first was from his father, a French and German wine salesman to restaurants and liquor stores in New York.  His father was always mindful of the concept of continued performance, saying often, “They don’t care what you did last year; they care what you are going to do this year.”  The Chief Justice took that advice to heart in all of the work that we did together.  He was an energetic man of action – on the commission, as Chief Justice, and nationally.

On the commission, for the better part of the last decade, he pushed us to be a “working” commission, transforming the organization into a more proactive organization.  Every summer, he loved holding commission retreats at his house to develop a strategic plan of action for the coming year.  He encouraged us in those meetings to think deeply with him about the important issues we faced, insisting that we left the retreat with three or four actionable goals that we could achieve by year’s end, and, inevitably, with an overflowing bag of leftover muffins and sandwiches. 

He would often say to me that the commission needed to do things, not just create reports to have them “collect dust on shelves.”  So, when we did produce reports, they had to have a purpose.  A prime example of this is a report we worked on together four years ago, the Justice For All Strategic Action Plan.  This project involved putting on paper a vision for the how the courts could transform how they handled those case types – family law, housing law, and consumer debt – where a majority of the litigants were unrepresented.  We were one of the first states to work on such a project, so there was no blueprint for how it was supposed to be framed.  We spent a year conducting outreach, convening committee meetings, and holding retreats.  Then the time came, around Thanksgiving, to start drafting.  When the consultant we had hired to produce the first draft left the project unexpectedly, the Chief Justice did not miss a beat: he just rolled up his sleeves with a small team of us and started drafting.  Then, as any experienced appellate judge would do, he started editing, and then continued editing, and editing some more.  I never admitted this to him, but I was quite satisfied with the report on the twentieth round of edits, but he insisted that we continue, through Christmas Eve, to round twenty-five.  The action-oriented plan we finalized has served as a blueprint for much of our commission’s work for the last four years, and will for the years to come.

He also used his role as co-chair of the commission to advocate for changes in the court system.  For example, several years ago, he asked commissioners to draft a report on a relatively new concept established by a few other states called “court service centers,” which could assist unrepresented litigants.  That report, authored by commissioner (and former BBA president) Tony Doniger, helped lay the groundwork for the court to fund two pilot court service centers the following year.   Likewise, the Chief leaned on the commission at the start of the COVID-19 pandemic, and the resulting court building closures, to provide constructive feedback on the court user experience during that time. 

He carried his passion for access to justice through to his work on the SJC.  He used his judicial role to ensure that the voiceless in the court system had a voice.  And he availed himself of every tool at his disposal, including: drafting opinions that impacted low income litigants; making rule changes that were equitable for all litigants, including the unrepresented; and expanding the court budget to increase the number of court service centers to assist more unrepresented litigants.  He used his many speaking opportunities, such as the annual State of the Judiciary, to advocate for the racial justice, civil rights, criminal justice reform, and access to justice, issues about which he cared deeply.  As he observed in his most recent State of the Judiciary address:

Until we create a world in which all who need counsel in civil cases have access to counsel, we must do all we can to make the court system more understandable and accessible for the many litigants who must represent themselves.

He was also a man of action on the national stage.  As a dynamic member and leader of the Conference of Chief Justices and of the Justice For All Initiative, he deftly pressed other state courts to make justice more accessible to all.  He created conference agendas and suggested keynote speakers to have other judges think about issues impacting those marginalized by the justice system.  He also drafted policy resolutions addressing access to justice, consumer debt, and racial justice.  Then, he used his political savvy to figure out the best way to ensure they were adopted, which often meant strategically asking someone else to take the lead in promoting the resolution.  In his application to be considered for Chief Justice, he said:  “I would like to believe that, if named as Chief Justice, I could play a national leadership role in advocating for access to justice, because I think Massachusetts is becoming a national leader in exploring innovative ways to provide access to all.”  He lived out that aspirational goal through his actions and words every day he served as Chief Justice.

Another life lesson he shared during his nomination process was from his mother, who judged everyone by how they treated others.  The highest praise she could give to a person of accomplishment was that he “was a regular guy.”  As in, “that Jonas Salk invented the polio vaccine, but he was just a regular guy.”  He took that advice to heart in the way that he focused on how a typical court user would experience walking through the courthouse doors.  In fact, he had a favorite hypothetical litigant, Mrs. Alvarado, a low income single mother of two who lived with her disabled mother.  He used this example to educate himself, and others, to better understand how she would experience the courts in her family’s high stakes eviction process.

Living his mother’s credo, as the Chief Justice, he could have stayed in his ornate office on the second floor of the Adams Courthouse, and bask in his many accomplishments, yet he chose to venture out, physically and emotionally, to focus on those in our community who did not have access to such privilege.  He felt a great responsibility as Chief Justice and as the leader of the court system to try to understand what it was like to come to court with no attorney, with no facility with language, with insecure immigration status, or with no access to technology.  He was especially concerned about the “court user experience” during his last seven months, during the pandemic, when access to court buildings was closed to most litigants and self-represented litigants had to figure out how to find and use remote court systems.  He valiantly worked with other court leaders to address the many challenges the court system faced.  He sought out feedback – the good and the bad – to make improvements where he could, noting that it was imperative for the court to know what was happening on the ground. 

He continued to think about those litigants in the final months, and moments, of his life, when he focused almost exclusively on the looming eviction crisis resulting from the pandemic and the ensuing economic recession.  He had previously described this eviction crisis as “the greatest access to justice challenge of our lifetime.”  On the morning of his death, the Chief Justice and I spoke for more than a half hour about his deep concerns on the eviction front, strategizing on solutions as we often would.  I take some solace in the fact that he spent the last hours of his incredible life using the gift of his intellect and the privilege of his power as Chief to help the many desperate people impacted by this pandemic.  

In one of his last speeches as Chief Justice, at the Access to Justice Fellows “graduation” event this past June, he quoted from the opening lines of Charles Dickens’ The Tale of Two Cities, which he said described the first months of the pandemic:

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair …

His examples of the “worst of times” in that speech were, of course, numerous – including the pandemic itself, widespread economic insecurity, and systemic racism.  He noted, however, that there was an undercurrent of the “best of times” in that the pandemic presented an opportunity for the court system – and, indeed, for all of us – to begin to “transform ourselves in ways that we never really have had to do before.”  It was a time, “in which not only do we need people’s commitment, but also we need people’s imagination, to find new ways to do things,” collectively and collaboratively.  The Chief further noted that, even though the times were challenging, “we will emerge from this stronger.”  I must admit that it will be much harder to emerge from this stronger without his indispensable leadership.  I also know that, more than anything else, he would insist that we all continue to do our part to provide greater access to justice for all because there is still so much unfinished work.

I’ll close this reflection with a nod to his mother: “that Ralph Gants was a brilliant jurist; a national voice for access to justice; an indispensable leader of the court system; a beloved figure to so many yet also a great friend to those close to him; but, most of all, a regular guy.”

Susan M. Finegan is a litigation partner and Chair of the Pro Bono Committee at Mintz.  As the firm’s pro bono partner, she serves as lead counsel on numerous high profile pro bono litigation matters and oversees the 300+ pro bono matters throughout the firm.  Sue is active on many boards and commissions, including as a member and current co-chair of the Massachusetts Access to Justice Commission.


Honoring Chief Justice Ralph Gants

by Hon. Jay Blitzman (Ret.)

Viewpoint

Celebrating the visionary legacy of Chief Justice Ralph Gants demands consideration of his commitment to access to justice and achieving racial and ethnic equity, particularly for marginalized communities. The Chief understood the need to address issues involving youth through a developmentally appropriate lens and the reality that many children and families are affected or involved in both child welfare and juvenile justice systems.   

In his keynote address at the Second Annual Massachusetts Criminal Justice Reform Coalition Summit on March 16, 2015, less than a year after becoming Chief, Justice Gants emphasized that sentences should be proportionate, no greater than necessary, and designed to help the offender “get past the past.”[1]  “In medicine, there is a principle that a doctor should inflict no more pain and furnish no more medication than is necessary to treat the patient, and we need to act on a comparable principle in sentencing.” In his annual State of the Judiciary address in October 2015, Chief Justice Gants amplified his previous observations by noting that, “in a criminal case, problem-solving means not only adjudicating the question of guilt or innocence regarding crimes already committed; it also means crafting a fair and proportionate sentence that is designed to reduce the likelihood of recidivism and to prevent future crimes.” Given what we have learned about the maturational arc of adolescence and emerging adults, late adolescents between the ages of 18-25, the Chief’s observations are particularly relevant. As the noted lawyer and civil rights advocate Bryan Stevenson has observed, each one of us is more than the worst thing we have done.  The Chief’s admonitions are so important that they are cited in the report of the Juvenile Court Dispositional and Sentencing Best Practices Committee which I was privileged to chair.   

The Chief’s understanding of adolescent development and the importance of a fair and proportional  approach which achieves rehabilitative goals while best protecting the public was a theme of his jurisprudence. In Commonwealth v. Hanson H., 464 Mass. 407 (2013), he wrote the majority opinion addressing the issue of whether a judge is required to order G.P.S. monitoring for a juvenile who have been adjudicated of a sex offense as defined by G.L. c. 6 § 178C. Then Associate Justice Gants observed that it was not apparent that the legislature intended to apply mandatory G.P.S. supervision and “eliminate the discretion granted to juvenile court judges to render individualized dispositions consistent with the best interest of the child.” “We also conclude,” he wrote, “that where the legislature has established the statutory principle that as far as practicable juveniles should be treated not as criminals, but as children in need of encouragement and guidance (G.L. c. 119 § 53), we will not interpret a statute affecting juveniles, to conflict with this principle in the absence of clear legislative intent.” In reaching this conclusion, Justice Gants emphasized that our juvenile system is primarily rehabilitative.  In recognizing the adverse effects of G.P.S. monitoring on normative socialization and school functioning, he stated that “We have recognized that G.P.S. monitoring is inherently stigmatizing.”

The Chief’s insight into the stigmatizing collateral consequences of a juvenile record was also evidenced in Commonwealth v. Humberto H., 466 Mass. 562, 572 (2013), which authorized the juvenile court to allow pre-arraignment motions to dismiss in the absence of a finding of probable cause. In allowing a motion to dismiss prior to arraignment in such circumstances, Justice Gants noted that after arraignment a juvenile’s name and charge become part of the permanent Court Action Information record (C.A.R.I.) and may not be expunged, Gavin G. v. Commonwealth, 459 Mass. 470  (2002). The Chief cited Magnus M., 461 Mass. 459, 461 (2012), which allowed juvenile court judges to continue cases without a finding after jury adjudications.  The juvenile system “is primarily rehabilitative” and  “[p]rotecting a child from the stigma of being perceived to be a criminal and from the collateral consequences of a delinquency charge is important, even more important where there is no probable cause.” Access to juvenile and criminal records has been increasingly recognized as a punitive badge which, absent a much more robust model of record expungement or sealing than currently exists, becomes an eternal punitive badge. See e.g., Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (The New Press 2012, 2016).

Chief Justice Gants again displayed fealty to the medical model of limiting the dose and letting an offender get past the past in Commonwealth v. Henry, 475 Mass. 117 (2016), a criminal case involving restitution.  In this case, the opinion crafted by the Chief held that, in determining  restitution, a judge must make a finding regarding a defendant’s ability to pay as well as an assessment of loss by the victim. Of particular note is that probation may not be extended for inability to pay as doing so “subjects the probationer to additional punishment solely because of his or her poverty …. [a] judge may not extend the length of probation where a probationer violated an order of restitution due solely to an inability to pay.” This holding is particularly consequential for juveniles who rely on parents, guardians, or interested adults to support them.

In re: Care & Protection of Walt, 478 Mass. 212 (2017), involved a case in which Chief Justice Gants concluded that prior to the Department of Children and Families (DCF) removing a child from a parent’s care, the department take reasonable efforts before having the ability to justify the removal. This case reflects the Chief’s jurisprudence seeking to minimize unnecessary state intervention, which is especially important during the Covid-19 crisis. Prior to Walt, the orthodoxy had focused on Art. 30 separation of power case law limiting challenges to DCF custody to abuse of discretion. However, the Chief’s analysis now requires more rigorous inquiry into what reasonable efforts have been made to keep children with caretakers prior to removal and permits juvenile court judges to exercise equitable authority to order DCF to take reasonable remedial efforts to diminish the adverse consequences of failure of the department to having made reasonable efforts prior to removal.

In Lazlo L. v. Commonwealth, 482 Mass. 325, 328-330 (2019), the Chief authorized the retroactive application of 2018 juvenile justice reforms allowing dismissal of first offense crimes for juveniles carrying sentences of six months or less. He emphasized that “the Legislature understood that children who enter the juvenile system have a higher risk of re-offending for the remainder of their lives and … their risk of recidivism is greater the earlier they enter the system.” “We see no reason to delay the application of an amendment aimed at combatting the negative effects of Juvenile Court involvement on children and their communities.”

The Chief’s abiding conviction in ensuring equity was again reflected in one of the last cases he worked on. In his concurring opinion in Commonwealth v. Long, S.J.C. 12868 (Sept. 17, 2020), he supported the decision to adopt a new rule in allegations of racially motivated motor vehicle stops, which would place an initial burden on defendants to argue that there was a reasonable inference that stops were motivated by race or another protected class; and that in lieu of relying on statistical analysis, as previously required by Commonwealth v. Lora, 451 Mass. 425 (2008), defendants could rely on the totality of the circumstances regarding the stop. In noting that the justices had different ideas about the appropriate constitutional analysis, the Chief wrote that “… the court is unanimous in concluding that a motor vehicle stop that arises from racial profiling is unconstitutional …. [I]n short it is the unanimous view of this court that prohibition against racial profiling must be given teeth and that judges should suppress evidence where a motor vehicle is motivated, even in part, by the race of the driver or passenger.” Practitioners are already considering the implications of the case and tailoring arguments regarding racial profiling in all contexts.

Chief Justice Ralph Gants is not gone. He lives in all of our hearts. As former Chief S.J.C. Justice Margaret Marshall said during an October 27, 2020 event honoring her former colleague, “Now is not the time to grieve. It is time to get to work.” I concur. Ralph Gants was inspired by Deuteronomy’s admonition: Justice, Justice Shall You Purse. We should all follow his example.

[1] Available at http://www.mass.gov/courts/docs/sjc/docs/speeches/sjc-chief-justice-gants-remarks-umass-boston-03165.pdf.

Jay Blitzman served as the First Justice of the Middlesex County Division of the Massachusetts Juvenile Court. Prior to his retirement he was the founder of the Roxbury Youth Advocacy Project, a multi-disciplinary public defender unit which became the template for the creation of the statewide Youth Advocacy Division. Jay was also a co-founder of Massachusetts Citizens for Juvenile Justice (CfJJ) and a co-founder of Our RJ, a court and school-based diversionary restorative justice program. Judge Blitzman currently serves on the advisory boards of CfJJ, UTEC (Lowell) and is a Massachusetts Access to Justice Fellow working with More Than Words (MTW).  Jay was also a co-founder of the Massachusetts Bar Association’s Juvenile and Child Welfare section council and in 2018 was the first recipient of the MBA Juvenile Justice and Child Welfare Award. Jay also served as a member of the Boston Bar Association’s Cradle to Prison Pipeline and is a former BBA Brooke public service award winner. He is member of the American Bar Association’s Commission at Risk and is the ABA advisor to the Uniform Law Commission’s committee on The Criminalization of School Discipline. He is also a member of the Massachusetts Supreme Judicial Court’s Standing Committee on Eyewitness Identification. Jay writes and presents regularly on systemic juvenile and criminal issues and holds teaching positions at Harvard Law School (trial advocacy), Northeastern University School of Law (juvenile law), and Boston College School of Law (Cradle to Prison Pipeline). Judge Blitzman is also a faculty member at the Center on Law Brain and Behavior (CLBB- Harvard Medical School, M.G.H.) Jay chairs the Juvenile Committee of the Criminal Justice Reform Committee at Northeastern. Judge Blitzman was the 2019 recipient of the ABA Livingston Hall Juvenile Justice Award. The Committee for Public Services (CPCS) annually presents the Jay D. Blitzman Youth Advocacy Award.


Beyond Shelter: Sustaining Public Housing Communities During and After a Pandemic

by Kate Bennett and Joel Wool

Viewpoint

For nearly a century, through economic boom and bust, social progress and upheaval, and across many administrations, the Boston Housing Authority (“BHA”) has steadfastly provided “deeply affordable housing” for the City’s low-income residents. Established in 1935, the BHA currently ensures housing affordability for 58,000 residents in and around Boston. As the country continues to reckon with the COVID-19 emergency, the BHA’s mission to connect vulnerable residents to opportunities through housing has never been more urgent. This article highlights some of BHA’s efforts to support our public housing communities through the pandemic and beyond.

The challenges faced by low-income households cannot be overstated. Even before COVID-19, BHA residents—many of whom are elderly, disabled, people of color, and children—faced disproportionate levels of unemployment, food insecurity, and health risks, all of which have been amplified during the pandemic by a digital divide that threatens to isolate them from essential services, critical resources, and necessary systems of support. While local, state, and national governments grapple with the racial and economic disparities laid bare by COVID-19, BHA and other affordable housing providers have been tasked to expand their role through more front-line advocacy and direct assistance to better shelter our vulnerable residents from the impact of the global pandemic.

COVID-19 EMERGENCY RESPONSE

In March 2020, BHA responded swiftly to the public health crisis to safeguard our residents, employees, and the general public from the twin public health and economic crises:

  • Because housing authorities lack the authority to cancel rent payments even during a national pandemic causing crisis rates of unemployment, to ensure that tenants can remain safely in place without fear of becoming homeless, on March12, 2020, the BHA announced its immediate suspension of all “non-essential” (i.e., not critical to public health and safety) evictions for the duration of the Massachusetts state of emergency, and later extended the agency’s moratorium to at least through the end of 2020. The BHA, in concert with Mayor Walsh and other city partners, also urged the Housing Court’s cooperation in suspending all pending and new non-essential eviction cases in light of the significant health and safety risks exposed to all during court proceedings.
  • Consistent with evolving guidance, BHA implemented preventative measures to encourage social distancing and frequent cleaning and decontamination, including temporary closure of certain indoor common spaces, limitations on visitors in elderly housing, and postponement of inspections to reduce exposure and transmission risks in our vulnerable housing communities.
  • Working with the U.S. Housing and Urban Development and the state Department of Housing and Community Development, BHA shifted mission-critical operations to remote and electronic platforms with streamlined and flexible documentation requirements and extended deadlines, including the processing of applications, admissions, issuance of vouchers, transfer requests, annual and interim examinations, and even housing quality inspections.
  • BHA adapted interactions with residents, encouraging open lines of communication via telephone, fax, and e-mail; establishing an on-line rent payment option; providing secure drop-boxes for submission of rent and documents for households without internet access; limiting in-person transactions to locations with appropriate ventilation and space for social distancing; and ensuring important notices and information are disseminated in a manner accessible to persons with communication-related barriers including disabilities, language needs, and technology challenges.

CARES ACT SUPPORTIVE INITIATIVES

In April 2020, BHA modified many of its policies and procedures under the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act to better address the escalating loss of income due to COVID-19. For example, the BHA encouraged prompt reports of job loss and requests for minimum rent hardship exemptions, allowed unlimited, retroactive interim rent reductions for loss of income, and continued to limit out-of-court rent repayment agreements to 40% of the household’s adjusted monthly income, inclusive of the tenant’s regular rent share.

In May 2020, with COVID-19 exacerbating health issues, driving up household expenses, and worsening transportation-related barriers to accessing food and other necessities, our residents clearly needed more help. Consequently, BHA prioritized the use of its CARES Act funds not only to maintain existing operations but also to implement new initiatives to support the health, safety, and quality of life of our residents, including:

  • a multi-million dollar food contract with local minority- and women- owned businesses to ensure the reliable and safe delivery of sufficient fresh foods to BHA families and seniors facing food insecurity and barriers to safe access to grocery stores.
  • economic incentives to encourage landlord participation in a new homeless voucher program for families with children in Boston Public Schools.
  • distribution of free laptops and tablets for residents and technology upgrades to improve connectivity to improve remote access to education, jobs, and other opportunities and resources, and to reduce social isolation.
  • reconfiguring community rooms and other common spaces for the continued safe use by residents and to facilitate safe interaction within the housing community.
  • direct efforts to reach and support residents, from staff distribution of food, masks, and cleaning supplies to safe and socially-distanced support of youth engagement programs, such as a multi-media project where young BHA residents filmed their experiences of the pandemic within their family and community.
  • support of resident empowerment, leadership and participation in BHA policy development and planning activities through regular, facilitated virtual meetings with tenant organizations, including providing technical training, free tablets, and interpretation services.

PRESERVING AND CREATING AFFORDABLE HOUSING

Pandemic notwithstanding, the BHA has forged ahead with its plans for the renovation of all of its affordable housing facilities and pursuit of opportunities to create additional affordable housing units in the City. For example:

  • Through the summer and fall of 2020, BHA has used virtual platforms to advance the permitting process for the redevelopment of its 1,100-unit Bunker Hill federal public housing site into a mixed-income community through a public-private partnership, leveraging rents from additional, new market-rent units to support the 1-for-1 replacement and conversion of the existing deteriorated public housing units. Similar initiatives are underway throughout Boston to rehabilitate and preserve the affordability of BHA’s aging public housing stock, including at Mildred Hailey in Jamaica Plain, and Mary Ellen McCormack in South Boston.
  • BHA also launched “Generations BHA,” a plan to renovate and modernize BHA’s entire 3,600-unit federal elderly/disabled portfolio, including accessibility improvements, energy efficiency measures, plumbing, electrical, and fire protection. All Generations BHA units will remain under sole public ownership but convert from a public housing to a Section 8 Project-Based Voucher (“PBV”) subsidy platform.
  • BHA and City of Boston recently announced the preservation of 48 “expiring-use” units at the Mercantile Wharf in the North End using Section 8 PBVs.
  • A new Boston-funded municipal voucher program is anticipated to stabilize the housing of additional low-income Bostonians through a mix of project- and tenant-based rental assistance.

FUTURE DIRECTION

Even before the pandemic, the BHA provided the City’s low-income residents with much more than shelter. Today, when COVID-19 exposed a dangerous widening of historic disparities in income and access to safe and stable housing, and unprecedented levels of social isolation among low-income and elderly residents, BHA is redoubling its efforts to provide our residents with vital connections to achieve economic self-sufficiency and housing mobility, and to build a more just and equitable 21st-century society in which all families are able to meet their basic needs.

Kate Bennett is the Administrator and CEO of the Boston Housing Authority.  She oversees public housing and housing choice voucher programs that provide affordable housing for more than 50,000 people in and around the City of Boston. 

Joel Wool is Special Advisor for Policy and Planning for the Boston Housing Authority. Joel has supported BHA in directing state and federal COVID relief funds to critical initiatives and social equity measures. He is project lead on the new municipally- funded voucher program.

 


Zoning Reforms Needed to Dismantle Discriminatory Land Use and Build More Affordable Housing

by Eric Shupin

Viewpoint

Discriminatory government policies in zoning and land use over the last 50 years have intentionally created racially segregated communities with concentrated areas of poverty. More than a half-century since passage of the Fair Housing Act of 1968, “even as metropolitan areas diversify, white Americans still live in mostly white neighborhoods.” In the Boston area, residential racial segregation exceeds the national average significantly, with Black and Hispanic households overwhelmingly residing in communities with the greatest educational challenges, limited resources, and the poorest educational, economic, and health outcomes. Alarming emerging data from the COVID-19 pandemic suggests that in urban cores, “[b]lack and brown people are dying at rates more than twice their share of the population”—likely because high density urban areas are comprised disproportionately of racial minorities with higher prevalence of preexisting poor health-related conditions. The racial gap in COVID-19 deaths exposes the urgent need for bold government intervention to undo the legacy of decades of exclusionary zoning that continues to perpetuate residential segregation in the Commonwealth.

AFFORDABLE HOUSING SHORTAGE AND SEGREGATION

An adequate, affordable housing supply throughout Massachusetts is critically necessary to disrupt existing patterns of residential segregation. As of 2018, 32% of Black and 16% of Latinix/Hispanic residents of Massachusetts lived in Boston. This is compared to the state’s overall population breakdown of 7% Black and 12% Latinx/Hispanic.

Not nearly enough housing has been produced outside of Boston over the past 30 years. Between the 1960s and the 1990s, annual housing production in Greater Boston actually dropped by 52 percent, and, multifamily housing production dropped by more than 80 percent. Consequently, rents and home prices in the region have been perennially among the highest in the nation, placing an increasing and unsustainable burden on renters, especially lower-income residents who are disproportionately people of color. In 2017, with only about three new housing units permitted for every thousand residents, Greater Boston continued to rank among the top-five in average housing costs and ranked 18th in housing production among the nation’s 25 largest metropolitan areas.

An adequate housing supply can help stabilize prices and enhance affordability, but production alone will not address the Commonwealth’s persistent patterns of racial residential segregation. Legislation and land use policies that explicitly address the need for affordable housing to be equitably distributed throughout Massachusetts are needed. Since its enactment in 1967, Chapter 40B has been the main statutory means to incentivize affordable housing production statewide. It empowers local Zoning Boards of Appeals in jurisdictions that have not met the 10% Subsidized Housing Inventory (SHI) “safe harbor” threshold to approve “comprehensive permits” for denser, larger, and higher development projects than would otherwise be permitted under local rules if they contain 20–25% affordable units. In the past 50 years, Chapter 40B has helped create over 60,000 homes, but, after all those years, currently only 67 of Massachusetts’ 351 municipalities are at or above the 10% SHI threshold.

Although Chapter 40B has helped, the Commonwealth still faces serious challenges to combatting patterns of residential segregation. Massachusetts needs additional zoning tools and reforms to overcome our legacy of restrictive zoning.

RESTRICTIVE ZONING AND FAIR HOUSING  

The Massachusetts’ Zoning Act, G.L. c. 40A (“Chapter 40A”), delegates to all municipalities (except Boston) the power to enact their own zoning codes to regulate the use of land, buildings, and structures for the purpose of protecting the “health, morals, safety and general welfare of the community.” While the Legislature retains the ultimate authority to set zoning policy for the Commonwealth, in practice, local zoning laws represent the piecemeal expression of their  development preferences and local control over such externalities as population growth, traffic congestion, noise, aesthetics, and property values. Without reform, most Massachusetts’ communities will continue to restrict the development of all but the most expensive—and exclusive—type of housing: single-family homes on large lots.

According to Massachusetts’ 2019 Analysis of Impediments to Fair Housing, density-restrictive zoning raises serious civil rights concerns because low-density developments tend to exclude Black and Hispanic residents disproportionately, whereas multifamily rental options promote the inclusion of traditionally excluded minority households.

ZONING REFORM TOOLS

Statutory zoning reform, coupled with judicial development of a more restrictive doctrine on abutter standing, can complement existing incentives, such as Chapter 40B and the Housing Choice Designation.

Enacting Housing Choice

We can start by amending Chapter 40A to make it easier for communities to pass local zoning changes that encourage more housing and “smart growth” development. Currently, any zoning change requires a two-thirds vote by all members of Town Meeting or city council. G.L. c. 40A, § 5. Without amendment, this often insurmountable threshold will ensure the status quo of our exclusionary land use practices.

H.4263, initially filed by Governor Baker, would enable municipalities to pass by a simple majority vote a narrow set of zoning changes related to multifamily housing, including mixed-use developments and accessory dwellings (or in-law apartments), and to approve special permits for certain affordable housing developments that are consistent with smart growth principles. Other zoning changes that might further restrict new and/or affordable housing, such as increasing dimensional requirements, would continue to require a super-majority vote. If sufficiently coupled with subsidies to build affordable housing, this measure would make a substantial impact by empowering the simple majority of the community to vote for such zoning amendments in favor of housing.

Curtailing Frivolous Abutter Challenges

Massachusetts’ jurisprudence on standing has accorded disproportionate power for abutters to challenge a project for the improper purpose of obstruction and delay. Abutter challenges—even without merit—can hold up affordable housing construction sufficiently to make the project financially unviable.

In Murchison v. Sherborn, a decision issued in less than 24 hours, the Supreme Judicial Court ruled that abutters must prove they would suffer some kind of demonstrable harm to have standing to bring a legal challenge to a project. While the claim that a proposed single-family home on a 3-acre neighboring lot would cause density-related harm may be an extreme case, the case exemplifies the frivolous type of challenges many affordable housing developers face. To promote the creation of more diverse housing types across Massachusetts, we must encourage a new jurisprudence or take legislative action on standing to deter frivolous abutter challenges of locally-supported affordable housing developments.

Inclusionary Zoning

Each municipality can also adopt its own inclusionary zoning policy to require a certain portion of a housing development to be set aside as affordable. For example, Boston’s policy currently requires 13% to be set aside as affordable; Cambridge requires 20% to be income-restricted. The challenge for such policies is that sufficient density is required to make a mixed-income development economically feasible: if the required set aside for affordable units is too high, inclusionary zoning can have the unintended consequence of discouraging new development that can foster diversity in communities that are traditionally opposed to increased density. It is also dependent on a community approving projects large enough to trigger the policy in the first place. Even with these limitations, such policies are an important tool to combat exclusionary zoning.

CONCLUSION

Zoning is a powerful legal and public policy choice: it determines what gets built and where and who gets to live in a community, as well as who is excluded. Zoning reform is long overdue in Massachusetts to remediate our history of residential segregation. H. 4263 is a first step for Massachusetts to start building desperately needed diverse housing opportunities.

 

Eric Shupin is the Director of Public Policy at Citizens’ Housing and Planning Association. Shupin is the public policy co-chair of the Boston Bar Association’s Real Estate Section. Shupin holds a J.D. from The George Washington University Law School. The opinions expressed in this article are his own.