The ABCC’s Crackdown on “Pay to Play”: Is Sporadic Enforcement Better Than No Enforcement?

Lyons_Crystalby Eric Hawkins

Viewpoint

Last February, the Massachusetts Alcoholic Beverages Control Commission (ABCC) presented an Everett-based beer distributor, Craft Brewers Guild, with a draconian choice: either face a lethal 90-day suspension of licensed activities, or pay an unprecedented $2.6 million fine, equal to half of projected profits for the time of suspension.  This “choice” stemmed from admitted-to violations of laws forbidding bribery and price discrimination.  In its Chapter 30A suit appealing the fine, however, the Craft Brewers Guild principally claims that (like its competitors) it simply did what was necessary—that “pay to play” is the industry norm, practiced by all or most, necessary for survival.  And when viewed in context, this perhaps unusual defense forces the observer to take a second glance at how we regulate the industry and ask again: is this the best way?

First some background.  The volcanic growth in the number of U.S. breweries is no secret. In 1978, American beer drinkers were served by an estimated 89 breweries, a post-Prohibition nadir.  In line with the oft-dubbed “craft beer revolution,” last year saw an 18% increase over 2014’s record numbers, with the total number of breweries chiming in at 4225.  Regardless of whatever paradox lies with choice, the market has permanently and fundamentally changed.  And one consequence is simply space: no matter a bartender’s ingenuity, there are only so many actual tap lines in bars available to pour such unprecedented variety and creativity.  Resultant competition for those lines is predictably fierce and growing fiercer.

Despite this altered market, these competing actors play on an old stage: an entrenched tapestry of regulation governs the alcohol market.  In Massachusetts (like most states), the alcohol industry is artificially divided into three parts.  Generally, (i) licensed manufacturers of alcoholic beverages (like a brewery) sell their goods to (ii) licensed distributors (like Craft Brewers Guild), who in turn sell to (iii) licensed retailers, such as a bar or liquor store—which then may serve the consumer.  Vertical integration or substantial ownership between these three “tiers” is highly restricted; for the most part, they must operate independently.  Notwithstanding its many critics, this tripartite demarcation at least intends to prevent organized and monopolistic crime, increase orderliness in what was once a disorderly market, and artificially inflate prices to bolster temperance.

Further, the Commonwealth extensively regulates the means and methods of business across the borders it erected.  For example, if a brewer (one tier) wishes to stop selling beer to a particular distributor (another tier), it may not simply re-negotiate the contract.  It must show cause to the satisfaction of the ABCC before doing so.

At issue in the Craft Brewers Guild story, however, is the regulatory decision to restrain the methods these tiers may use to compete.

The statute and regulation at play are G.L. ch. 138, §25A and 204 CMR 2.08.  Section 25A forbids brewers and distributors from offering the same product to different purchasers on different terms.  What is offered to one—be it price, credit or favor—must be offered to all.  In turn, 2.08 forbids paying purchasers to carry a particular brand of alcohol.  (For good measure, the federal Alcohol and Tobacco Tax and Trade Bureau forbids the same).  Together, these rules intend to eliminate discrimination and prevent monopolization by a single major brand, in theory conserving fertile soil for up-starts and innovators while stifling disorderly conduct throughout the industry.

So on one hand, there’s unprecedented competition among a rapidly growing number of brands seeking increasingly scarce tap lines.  On the other, a regulatory framework—codified in a different era—that artificially partitions alcohol distribution among three distinct entities and then attempts to prevent those entities from purchasing an advantage from one another.  More players, scarcer resources, and tight restraints: this is context in which the ABCC’s fine of Craft Brewers Guild (and pending investigation into five bars) must be considered.

With that context in mind, this is what happened.  Craft Brewers Guild, as part of a “pay to play” scheme, kicked back varying levels of cash and other favors to bars for putting its beers on tap (and thereby taking another distributor’s beer off).  Although no brewers were cited in the decision, the ABCC speculated that Craft Brewers Guild would then accept (or demand) reimbursements from the benefited breweries.  The legal issue is therefore clear: not all bars received the same kickbacks, and some received none at all, violating Section 25A’s prohibition on price discrimination; and tap space was purchased at the expense of other beer, violating 2.08’s prohibition on bribery.  Media coverage reveals that the practice may be (perhaps necessarily) very common.  But it was Craft Brewers Guild that was hit with the fine.  And that sparks some thoughts.

First, there’sirony in a distributor of mostly craft beers running afoul a law meant in part to protect craft beers from larger market forces.  And the irony is compounded by the fact the entire ABCC investigation grew from a seed planted by a series of angry tweets from the owner of the now-closed craft brewery Pretty Things, whose beers were carried by Craft Brewers Guild (but who presumably was not benefitting from the practice).  At first blush his anger makes sense—the law should be followed, there’s a large variance in economic power even within the “craft” sector of the beer market, and consumer choice could still be largely inhibited by prices offered (or demanded) for tap lines that burden already-thin profit margins of emerging breweries.  Yet, the fact that a craft brewer triggered an investigation into its own craft distributor indicates that a law meant in part to protect small companies from allegedly law-breaking “big guys” may in actuality be causing unintended consequences.  One wonders whether emerging entities are most in need of market freedom to purchase space in a crowded field.  Further, roles have been reversed: entities that typically resist what they consider byzantine restrictions are now essentially calling for stricter government enforcement.  All of which is to say that it’s complicated: a simple pro/anti-regulation dichotomy is, as always, insufficient.

But fundamentally, when presented with a complicated background and a choice between a less-fettered market (with its risks) and rather ironic, sporadic and ineffectual enforcement of old laws with antiquated origins (by an agency that has regulated hesitantly in the past), one is hard-pressed to gleefully embrace the latter.  The Suffolk Superior Court’s Chapter 30A review of the ABCC decision will, therefore, make for interesting reading.  Arbitrary and capricious?  Perhaps.

Eric Hawkins is an associate who works on a diverse range of matters within WilmerHale’s Litigation/Controversy Department. Prior to joining WilmerHale, Mr. Hawkins worked in the Administrative Law division of the Massachusetts Attorney General’s Office, where he researched, drafted and argued motions on behalf of various Massachusetts agencies facing administrative appeals and constitutional challenges. Throughout law school, Mr. Hawkins worked part time as a Brewery Ambassador for the Samuel Adams brewery in Boston.


A Weak Expressio: In DaRosa v. City of New Bedford, The SJC Serves A Diluted Version Of An Established Statutory Interpretation Rule

clancy_davidbrumme_marleyby David S. Clancy and Marley Ann Brumme

Viewpoints

In DaRosa v. City of New Bedford, 471 Mass. 446 (2015), the Supreme Judicial Court made the Massachusetts Public Records Act (“PRA”) a less effective tool for citizens seeking government records, just as the Massachusetts government faces sharp criticism from media outlets and good-government groups for lack of transparency.  In doing so, the SJC weakened something else:  the established canon of statutory interpretation expressio unius est exclusio alterius (the expression of one thing is the exclusion of the other).  This canon urges courts not to add “implied” terms to statutes.  In its undiluted form, expressio unius is a strong constraint on judicial alteration of legislative enactments.  But DaRosa dilutes it in a way that will affect future interpretation of the PRA, and maybe other statutes as well.

At issue in DaRosa was the status of attorney work product under the PRA.  In an environmental dispute, the City of New Bedford was withholding such documents from third-party defendants.  Those defendants had strong arguments for disclosure.  The PRA states that all government records are public, unless they fall within one or more “strictly construed” exemptions from disclosure.  Att’y Gen. v. Ass’t Comm’r of the Real Prop. Dep’t of Boston, 380 Mass. 623, 625 (1980).  None of those exemptions explicitly protects documents that are attorney work product (or attorney-client privileged).  And in General Electric Co. v. Massachusetts Department of Environmental Protection, 429 Mass. 798 (1999) (“GE“), the SJC — applying expressio unius — declined to add an “implied” exemption for attorney work product:

There is no ambiguity in the statute’s explicit mandate that the public have access to all government documents and records except those that fall within the scope of an express statutory exception.  As we said in construing an analogous statute, the open meetings law as it applied to municipal governments, G.L. c. 39, § 23B, ‘exceptions are not to be implied.  Where there is an express exception, it comprises the only limitation on the operation of the statute and no other exceptions will be implied.’

Id. at 805-806.

Despite all of this, the City of New Bedford won in DaRosa.  The SJC did not go so far as to overrule GE and create an implied exemption for attorney work product — the Court entertained that possibility, but refrained.  The practical result was largely the same, however.  Reaching an issue that it did not address in GE, the SJC ruled that work product is almost always within an already-existing exemption anyway.  That exemption — exemption (d) — covers “inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency,” except “reasonably completed factual studies or reports on which the development of such policy positions has been or may be based.”  DaRosa, 471 Mass. at 450-451.  The Court held that attorney work product reflects “decisions regarding litigation strategy and case preparation” and thus amounts to development of policy.  Id. at 458.  (The Court acknowledged that a “reasonably completed factual study or report” would fall outside the scope of exemption (d), but hastened to add that the exemption applies to such work product if it is “interwoven” with “opinions” or “analysis.”  Id. at 459-460.)

To this point, DaRosa may seem to be merely a technical decision about the scope of one of the PRA’s long-existing exemptions, with the SJC’s conclusion at least plausibly supported by that exemption’s text.  But DaRosa is more than that because of the part of the decision where the SJC considered simply adding an implied PRA exemption for attorney work product.  As noted, the SJC refrained from doing so, but, in no uncertain terms, the SJC expressed a willingness to do so:

We no longer hold to the view declared in General Electric that there are no implied exemptions to the public records act, and that all records in the possession of a governmental entity must be disclosed under the act unless they fall within one of the exemptions identified [therein].

Id. at 453.  This is a remarkable statement.  It represents a sharp departure from GE and its forceful application of expressio unius.  Moderating that departure, the SJC held that the judiciary should create “implied exemptions” only when necessary to “preserve the fair administration of justice.”  Id. at 454.  But that malleable phrase is not a comforting restraint on a court which has so bluntly broken from GE.

While startling, DaRosa‘s “we no longer hold to” pronouncement did not come from thin air.  In two prior cases — Suffolk Construction Company v. Division of Capital Asset Management, 449 Mass. 444 (2007), and Commonwealth v. Fremont Investment & Loan, 459 Mass. 209 (2011) — the SJC had already departed from the rationale of GE.  But in both cases it had done so with greater delicacy.

Suffolk was effectively a companion case to GE.  Recall that in GE, the SJC was asked whether the PRA contains an implied exemption for attorney work product, and answered “no.”  Eight years later, Suffolk raised a kindred question:  whether the PRA contains an implied exemption for records that are attorney-client privileged.  The SJC now answered “yes” — but it managed to do so without overturning GE or announcing a general judicial power to add PRA exemptions.  How so?  The Court explained that the need for an implied exemption was uniquely compelling in the particular circumstances of that case.  The Court took pains to establish the importance and venerability of the attorney-client privilege, which it called “common law of fundamental and longstanding importance to the administration of justice.”  Suffolk, 449 Mass. at 458.  The Court presented attorney work product as a doctrine of lesser status, referring to it as a mere “tool of judicial administration.”  Id. at 456.  Further, the SJC persuaded itself that its decision was consistent with the Legislature’s intent in enacting the PRA, which, according to the SJC, could not have been to “mandate[] that public officials perform their duties without access to legal advice protected by the attorney-client privilege.”  Id. at 458-459.

In the 2011 Fremont decision, the SJC again read an implied exemption into the PRA — but again without announcing a general power to do so.  This time an individual requested documents from the Office of the Attorney General which it had obtained from the defendant in a civil lawsuit, and which were subject to a protective order issued in that lawsuit.  The SJC decided that the PRA contains an implied exemption for such documents.  To rule otherwise, held the SJC, would raise “serious constitutional questions about the validity of that law,” because protective orders are within inherent judicial powers guaranteed by Article 30 of the Massachusetts Declaration of Rights.  Fremont, 459 Mass. at 214.  In essence, the SJC narrowed the PRA in order to save it.  Fremont, then, involved another unique situation where the need for an implied exemption was unusually powerful.

Suffolk and Fremont read as the decisions of a court that would add a PRA exemption only in an extraordinary situation, and perhaps only in the two particular situations addressed in those cases.  DaRosa goes further.

This is not to say that DaRosa ends a golden age of judicial restraint in which expressio unius was rigidly applied.  As humorist James Thurber observed, “[t]here is no exception to the rule that every rule has an exception.”  Historically, courts did read additional terms into statutes.  But they did so circumspectly, usually where satisfied by the existing text that the addition was needed to effectuate the Legislature’s purpose in passing the statute:  “‘The maxim [expressio unius] will be disregarded . . . where its application would thwart the legislative intent made apparent by the entire act.'”  Halebian v. Berv, 457 Mass. 620, 628 (2010).  DaRosa does not suggest that same fastidiousness about separation of powers.  Adding “implied” exemptions for the “fair administration of justice” is, at least presumptively, to frustrate the PRA’s “fundamental purpose to ensure public access to government documents.”  GE, 429 Mass. at 801.

Whether DaRosa is ultimately good or bad for citizens seeking government records is unclear.  DaRosa‘s holding about the scope of exemption (d) impairs the PRA as a tool for accessing government records, and the Court’s statements about statutory interpretation threaten further diminishment.  That said, the decision arrives just as public dissatisfaction with the PRA — which the Boston Globe recently called “anemic” — has reached a boiling point.  In further weakening the PRA, the DaRosa decision could have the ironic effect of fueling the ongoing efforts to strengthen it.

DaRosa could also have a broader impact.  The decision addresses the PRA only.  However, attorneys will almost certainly use it to push for judicial revisions to other statutes, and practitioners could find judges more amenable to doing so.  If so, in the courthouses of Massachusetts, a strong expressio may start getting harder to find.

David Clancy and Marley Ann Brumme are litigators at the Boston office of Skadden, Arps.  Mr. Clancy represented GE in GE v. Massachusetts Department of Environmental Protection.  Skadden also represented Fremont in Commonwealth v. Fremont Investment & Loan.  The views expressed in this article are their own and do not necessarily represent the views of Skadden, Arps or its clients.


Race, Technology, and Policing

Segal_Matt Rose_Carolby Matthew R. Segal and Carol Rose

Viewpoint

Police departments in Massachusetts and around the nation face heightened scrutiny about racial bias in their stop-and-frisk and use-of-force procedures. Years of abusive practices, combined with videos of police killing unarmed Black men, have sparked protests and eroded trust between communities and the police. These protests, in turn, have inspired overdue conversations about race and policing.

Massachusetts lawyers and lawmakers must engage in this discourse. And technology, when supported by appropriate law reform, offers a way forward.

What the Law Says about Police-Civilian Encounters

In theory, the Constitution protects people from police actions undertaken for no good reason or, worse yet, for discriminatory reasons. Although a police officer may engage anyone in conversation, an officer may not “stop” someone without individualized and reasonable suspicion of the person’s involvement in a crime. Terry v. Ohio, 392 U.S. 1 (1968). Even then, the officer may not lay hands on the civilian—for example, by conducting a “frisk”—without reasonable suspicion that the person is armed and dangerous. Id.

Further, although the United States Supreme Court has authorized police actions that are merely pretextual, officers may not undertake actions based on race. Whren v. United States, 517 U.S. 806 (1996). For example, if a driver is speeding, an officer may stop his car even if the officer is really interested in looking for drugs. But a speeding car cannot justify a traffic stop if the officer is really conducting it because the driver is Black.

Former Attorney General Eric Holder reiterated these principles in December 2014 when he issued new guidance on racial profiling. Under this guidance, when federal officers conduct traffic stops and other civilian encounters, they “may not use race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity to any degree,” except as part of a “specific suspect description.”

What We Know about Massachusetts Policing 

Those lofty principles have not adequately protected people, particularly people of color, from illegitimate police actions. An independent report on Boston Police Department (BPD) police-civilian street encounters, conducted at the request of the BPD and the ACLU of Massachusetts, documents what people in communities of color have long observed: “racial discrimination in BPD [police-civilian encounter] practices.”

The report—the only public report on BPD street encounters—finds that BPD officers targeted people of color at far greater rates than white people. For example, reviewing 204,000 police-civilian encounters documented in “Field Interrogation and Observation” forms filled out by Boston police officers between 2007 and 2010, researchers found that Blacks were targeted 63% of the time even though they comprise just 24% of Boston’s population.

But there’s more. Even after controlling for local crime rates, Boston officers were more likely to initiate encounters in Black and Latino neighborhoods. For every 1% increase in Black residents relative to white residents, police conducted 2.2% more encounters—even when crime and gang activity stayed the same. And a 1% increase in Latino residents relative to white residents was associated with a whopping 4.1% increase in police encounters. Similarly, even after controlling for individual arrest records and gang membership, Boston officers were more likely to initiate and escalate—via a frisk or search—encounters with Black and Latino people. Yet for 75% of these encounters the police gave no real justification; they instead just wrote that their purpose was to “investigate [a] person.”

Of course, it’s not just Boston, and it’s not just street stops. A 2004 Northeastern University study, commissioned by the Massachusetts legislature, found that 249 out of 366 Massachusetts law enforcement agencies show substantial racial disparity in traffic stops. Everywhere you look, race matters.

Despite this evidence, and despite testimonials from people of color, many law enforcement and elected leaders in Massachusetts have responded by denying that race is a driving factor in police-civilian encounters—or by dismissing the data as “old.”

Those responses are not surprising. People often construe new information to reinforce their preexisting beliefs or justify their past actions. Such denials, however, reinforce the mistrust between the police and the communities that experience increased police scrutiny. How can those communities expect police departments to fix a problem whose existence they won’t even acknowledge?

What Comes Next

In May 2015, a presidential task force recommended that police departments use open data to increase transparency and build community trust, including adopting early warning systems to identify problems, increase internal accountability, and decrease inappropriate uses of force. Law enforcement leaders, likewise, have called for greater transparency. “We simply must find ways to see each other more clearly,” said FBI Director James B. Comey. “And part of that has to involve collecting and sharing better information about encounters between police and citizens, especially violent encounters.”

Specifically, Mr. Comey proposes requiring police departments to gather more and better data regarding “those we arrest, those we confront for breaking the law and jeopardizing public safety, and those who confront us.”

Bills pending before the Massachusetts legislature would do just that. One bill, An Act regarding judicial investigations of law enforcement officer-involved deaths (H.1428), would mandate independent investigations of deaths at the hands of police officers, and direct the Secretary of Public Safety to promulgate regulations for data collection about use-of-force incidents more generally. Three other bills would require police to collect, analyze, and make public data on race, ethnicity, and gender in traffic and pedestrian stops and arrests, as an antidote to racial profiling and disparities in law enforcement. Collecting and analyzing data—as a routine, consistent, accepted professional practice—can identify “problem areas” and serve as a foundation for fair policing practices. The premise behind all of these bills is that police departments cannot manage what they do not measure.

In addition to officers’ collection of data, civilians’ recording of incidents with cell-phone cameras also provides a measure of civil-rights protection during police encounters. But civilian recording is haphazard, at best, and sometimes dangerous for the civilian. A complementary system of police-worn body cameras, with appropriate privacy protections, would protect both law enforcement and the public. Although some opponents of body cameras have suggested that the Massachusetts law requires two-party consent, it does not. As long as a body camera is worn openly, it does not offend the state wiretap law. See Mass. G. L. c. 272, § 99.

In addition to data collection and body cameras, police departments should be required to implement implicit bias training for all officers. As FBI Director Comey pointed out: “Much research points to the widespread existence of unconscious bias. Many people in our white-majority culture have unconscious racial biases and react differently to a white face than a black face. In fact, we all, white and black, carry various biases around with us.”

Bias training for police officers, when combined with data collection, monitoring, and systems of accountability, is considered by many to be a prerequisite for lasting structural change needed to achieve a socially just society.

Finally, the new BPD report indicates that Terry and Whren have not offered complete protection from groundless or discriminatory police action. Massachusetts courts and policy makers should consider strengthening this protection through doctrines that account for new technology and deeper understandings about the role of race in policing. For example, Massachusetts courts have held that a defendant is entitled to an instruction telling the jury that it should be skeptical of a defendant’s alleged confession when the police fail to record a custodial interrogation. Commonwealth v. DiGiambattista, 442 Mass. 423 (2004). A similar jury instruction or evidentiary rule may be warranted when an officer has the capability to record, but nevertheless does not record, a Terry stop. Just recently, terrorism suspect Usaamah Rahim was reportedly under constant law enforcement surveillance, yet the only video of the Terry stop resulting in Rahim’s death comes courtesy of a grainy security camera owned by Burger King.

Similarly, in seeking to suppress evidence from a Terry stop, a Massachusetts defendant can rely on statistical evidence demonstrating disparate treatment of persons based on their race. Commonwealth v. Lora, 451 Mass. 425 (2008). Given that the only statistical study of BPD street encounters has revealed what independent researchers called “racially disparate treatment of minority persons,” lawyers and courts should consider whether evidence arising from these encounters should be admitted in court.

Technology can enhance liberty, and so can modern understandings of the role of race in policing. But only if the law keeps pace.

 

Matthew Segal is Legal Director of the ACLU of Massachusetts and a former assistant federal defender in Asheville, North Carolina.

Carol Rose is Executive Director of the ACLU of Massachusetts, a nonpartisan organization that uses litigation, legislation, communications and organizing to promote civil rights and civil liberties.


Promoting Diversity in the Criminal Justice System

Cassidy_Mikeby Professor R. Michael Cassidy

Viewpoint

The decisions of grand juries in Missouri and New York not to indict police officers responsible for shooting unarmed black men has sparked intense debate in this country about racial disparities in our criminal justice system.  Turning this public outcry into meaningful reform will not be easy.  But if public confidence in law enforcement is going to be strengthened, one important step is to make sure that the most powerful actors in our criminal justice system mirror the racial composition of the communities they represent.

We need more people of color serving as police officers, judges, jurors, public defenders, and perhaps most importantly prosecutors. Their talent, background, and perspective are essential to balanced and informed decision-making. Just as importantly, their presence in the courthouse will be critical to restoring a perception that our criminal laws will be fairly applied to all.  Until our prosecutors are as diverse as the public that they purport to protect, citizens will naturally question the fairness of charging and plea bargaining decisions that occur behind closed doors.

African Americans make up almost 13% of the population in this country, but only about 4.8 % of licensed attorneys. The National Black Prosecutor’s Association, a membership organization that bills itself as the premier professional network for black prosecutors across the country, counts only 800 members in their entire organization, even though there are over 25,000 lawyers working as state prosecutors in the United States.  Here in Massachusetts, my colleagues among the district attorneys estimate that in some counties as little as 2% of the courtroom legal staff identify as African American.

One factor contributing to this underrepresentation is salary.  Massachusetts prosecutors are among the lowest paid in the country—even below those in Arkansas and Mississippi, states with dramatically lower costs of living.  Entry level prosecutors in Massachusetts earn $37,500 per year.  The national median starting salary for prosecutors among the 50 states and the District of Columbia is $51,000.  In most courthouses across this Commonwealth, the prosecutor is the lowest paid state employee in the building—behind the custodians, the secretaries, and the assistant clerks. And the public defender does not fare much better.

This problem is not new.  The starting salaries for prosecutors in Massachusetts have not been raised since 2007.  In May of 2014, a blue ribbon commission formed by the Massachusetts Bar Association issued a report entitled Doing Right by Those who Labor for Justice exposing this gross inequity. The report concluded that “The present salaries paid to attorneys working in our criminal justice system are so inadequate that they cannot meet the financial obligations attendant to everyday, normal living. The unvarnished truth is the compensation is so poor that it drives these lawyers away from the criminal justice system or into the ranks of the working poor.” The Boston Globe highlighted prosecutors forced to live with their parents just to make ends meet. A Commission formed by Governor Patrick to study the problem issued a report in December, 2014 highlighting the urgency of this situation, and calling on the legislature to make specific reforms.

What does this have to do with diversity?  Many African American law students who are passionate about careers in criminal law simply cannot afford to work as prosecutors or public defenders due to the low salary.  On average, law students borrow $125,000 to attend a private law school and $75,000 to attend a public law school. This debt can lead to average monthly loan repayments of between $650 and $1600, depending on consolidation and the term of the loan.  With an entering salary of $37,500, young prosecutors in Massachusetts take home a monthly paycheck of approximately $2,200 after deductions– barely enough to pay for housing, transportation, food, clothing and utilities.  This salary structure makes recruitment and retention of minority attorneys particularly difficult, as recent surveys show minorities are more likely to graduate law school with debt.  Many African American students who have high loans simply cannot afford to undertake careers as prosecutors, and thus choose to work at law firms instead.  Low salary and high indebtedness may not be the only reason African American lawyers forsake careers in the criminal justice system, but they are certainly a contributing factor.  Governor Patrick echoed this concern in his letter to the legislature that accompanied the 2014 Special Commission Report, where he stated that the low salary structure “inhibits the recruiting and retention of public lawyers who mirror the communities they serve.”

Race is not the only demographic affected by low salaries in our state’s prosecutors’ offices.  The grossly inadequate salary for ADAs has led to a situation where the only people who can afford these jobs are those who have a cushion of support from other family members; e.g., a parent or spouse. Single men and women and persons from lower socioeconomic backgrounds are increasingly becoming underrepresented in many county DA offices, making these important public positions less and less reflective of the communities they serve.  Unless we are prepared to tolerate a situation where law school graduates with independent means and family support are the only ones capable of undertaking this crucial form of public service, we must improve the salary structure for prosecutors and public defenders.

It is well past time for the legislature to take action.  Parity with other states, parity with other government lawyers within Massachusetts, and fundamental fairness all dictate that salaries for our state prosecutors and public defenders should be raised in the 2016 budget.  Adding to the urgency of this situation is a legitimate concern for increased diversity among the ranks of our prosecutors, who are making life and death decisions that affect all of us.

 

R. Michael Cassidy is a Professor at Boston College Law School and Director of the Rappaport Center for Law and Public Policy.  He was appointed by Governor Patrick to serve on the Special Commission to Study the Compensation of District Attorneys and Staff Attorneys for CPCS.


Rethinking Mens Rea for Extreme Atrocity or Cruelty

Philipson_Alexby Alex G. Philipson

Viewpoint

Currently in Massachusetts, the only mens rea required for first-degree murder by extreme atrocity or cruelty is malice aforethought—the same mens rea required for second-degree murder. See Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983). The mental state may be identical, but the punishment is very different: for first-degree murder, it is life imprisonment without parole; for second-degree, it is life with the possibility of parole after fifteen years. What distinguishes proof of the greater offense is evidence of extraordinary brutality or suffering. Id. at 227–228. But the Commonwealth need not prove the defendant intended, or was even aware of, this heightened savagery. Id.

Is it time to reconsider this law? At least two Justices of the Supreme Judicial Court (and one former Justice) think so. See Commonwealth v. Berry, 466 Mass. 763, 774–778 (2014) (Gants, J., concurring, joined by C.J. Ireland [now retired] and Duffly, J.). See also Commonwealth v. Riley, 467 Mass. 799, 828–829 (2014) (Duffly, J., concurring). They say it is unfair to allow a jury to find that a defendant acted with extreme atrocity or cruelty without proof that he intended, or was indifferent to, the victim’s extraordinary pain. Riley, 467 Mass. at 828–829; Berry, 466 Mass. at 776–778. The point is well taken.

Consider a hypothetical case where a jury heard evidence that a defendant killed a victim by repeatedly striking him in the head with a tire iron. On the theory of extreme atrocity or cruelty, the jury would be instructed that they could find the defendant guilty if they found any one of seven factors—only one of which is subjective: the defendant’s indifference to, or taking pleasure in, the victim’s suffering. See Cunneen, 389 Mass. at 227. The other six factors are objective: the victim’s consciousness and degree of suffering; the extent of physical injuries; the number of blows; the manner and force of blows; the instrument used; and the disproportion between the means needed to cause death and those used. Id. So, the jury could sidestep the question of the defendant’s intent or awareness of the victim’s suffering by focusing solely on one or more of the objective factors—e.g., that the instrument used (a tire iron) can cause grotesque injuries. To be sure, there is one circumstance when a jury is required to consider the subjective factor: when there is evidence suggesting the defendant was mentally impaired. See Commonwealth v. Gould, 380 Mass. 672, 685–686 (1980). But even then, the Commonwealth is still not required to disprove the defendant’s impairment; evidence of impairment is simply a factor that the jury can weigh as they see fit.

In short, the trouble with Cunneen is that it separates the subjective factor from the objective ones. Luckily, these factors can be joined using principles from our existing law.

The case that established that malice is the only required mens rea for extreme atrocity or cruelty nonetheless acknowledged that another state of mind is also relevant. See Commonwealth v. Gilbert, 165 Mass. 45, 58–59 (1895). In one breath, the court declared that “[s]pecial knowledge of the character of the act,” i.e., that the killing “was attended with extreme atrocity or cruelty,” is not required. Id. at 58. But, in another breath, the court recognized that some knowledge of the crime’s brutality must exist: “The circumstances [of the killing] would give [the defendant] reason to believe that he was causing pain to his victim; the indifference to such pain, as well as actual knowledge thereof and taking pleasure in it, constitute cruelty, and extreme cruelty is only a higher degree of cruelty.” Id. at 59. The implication is that a defendant who knows his actions are cruel would also know they are extremely so. Yet, how can a jury make this conclusion unless they find that the defendant’s actions were extreme (e.g., that the defendant inflicted multiple blows with a dangerous weapon), and that the defendant had at least “actual knowledge” of the extraordinary pain the victim would suffer? Gilbert, 165 Mass. at 59. And shouldn’t the Commonwealth have to prove this mens rea, considering what is at stake: a sentence of life without parole? Put another way, when our most severe criminal punishment is on the line, is it fair to allow the jury to presume the defendant’s actual knowledge of, indifference to, or pleasure in the victim’s extreme suffering? These are the problems that Gilbert created and that Cunneen failed to solve.

So what is the answer? How about requiring the Commonwealth to prove both the first Cunneen factor and at least one of the others? That would bring together two essential components: an unusually brutal or painful manner of death (objective element), and the defendant’s indifference to or taking pleasure in the victim’s extraordinary suffering (subjective element). By analogy, our law already uses a similar hybrid of objective and subjective components for so-called “third-prong malice”: an intent to do an act which, in circumstances known to the defendant (subjective part), a reasonable person would have known created a plain and strong likelihood of death (objective part). See Commonwealth v. Stewart, 460 Mass. 817, 826 & n.9 (2011). A similar hybrid could perhaps work for extreme atrocity or cruelty too.

Some time ago, two members of the Supreme Judicial Court worried that requiring the Commonwealth to prove the defendant knew about or intended the victim’s extreme suffering would “blur the distinction” between two theories of first-degree murder: deliberate premeditation, and extreme atrocity or cruelty. See Gould, 380 Mass. at 693 (Quirico, J., concurring in part and dissenting in part, joined by Hennessey, C.J.). The Justices did not explain what they meant by “blur.” It seems they were concerned that because deliberate premeditation is the only theory of first-degree murder that, besides malice, has a second mens rea (i.e., forming a plan to kill after a period of reflection, Commonwealth v. Caine, 366 Mass. 366, 374 [1974]), adding a second mens rea to extreme atrocity or cruelty (indifference to or pleasure in the victim’s suffering) would—by giving that theory two mens reas—make that theory too similar to deliberate premeditation. The concern, however, is not compelling. The mental state for deliberate premeditation (forming a plan to kill after a period of reflection) is quite unlike indifference to or taking pleasure in a victim’s extraordinary suffering. Thus, the purported concern with “blurring” should not stand in the way of improving our law.

The same two Justices also warned that adding a second mens rea would “rewrite [the] legislative definition” of extreme atrocity or cruelty. See Gould, 380 Mass. at 691. Perhaps so, considering that G. L. c. 265, § 1 does not provide this second mens rea. But neither does the statute define what acts objectively bespeak extreme atrocity or cruelty; the common law does that. See Cunneen, 389 Mass. at 227. Also, the Legislature has not amended G. L. c. 265, § 1 since the Supreme Judicial Court, more than three decades ago, allowed juries to at least consider evidence of a defendant’s mental state (beyond malice) to determine whether the defendant acted with extreme atrocity or cruelty. See Gould, 380 Mass. at 684–686 & n.16. Accord Commonwealth v. Rutkowski, 459 Mass. 794, 798 (2011); Commonwealth v. Urrea, 443 Mass. 530, 535 (2005). See also Cunneen, 389 Mass. at 227–228. The Legislature’s silence on Cunneen and Gould suggests it is comfortable with sensible judicial modifications of the law.

It may be some time before the right occasion arises to revisit the mens rea element of murder by extreme atrocity or cruelty. When that time comes, the Supreme Judicial Court would do well to take the opportunity to make the law more logical and fair.

 

Alex G. Philipson is the founder of Philipson Legal, a boutique practice focusing on civil and criminal appeals.


When Is Hacking A Crime? Potential Revisions to the CFAA

Nutter Web Page Mockup.ppt Nutter Web Page Mockup.ppt Nutter Web Page Mockup.pptby Allison D. Burroughs, Benjamin L. Mack, and Heather B. Repicky

Viewpoint

In the wake of the much-publicized federal criminal prosecution and suicide of Aaron Swartz, the Computer Fraud and Abuse Act (“CFAA”) (codified at 18 USC §1030) has drawn deserved criticism from legal commentators and lawmakers.  Indeed, the CFAA is an outdated, patchwork statute, in need of revision.

Swartz, a computer programmer, entrepreneur, and activist, was accused of accessing restricted portions of MIT’s computer network in order to download millions of journal articles from a digital library.  He faced as much as 35 years in prison and a $1 million fine under the CFAA and related statutes.

Prominent critics, like Congresswoman Zoe Lofgren (D-CA), contend that the CFAA imposes substantial criminal liability and punishment for relatively innocuous conduct.  In 2011, in the wake of the Swartz case, Congresswoman Lofgren introduced “Aaron’s Law” to prevent arguably disproportionate penalties for certain CFAA violations.  However, the proposed statute would also seemingly insulate “authorized users” of computers from prosecution, regardless of the nature of their conduct or the harm it causes.  Congress should not seek to fix the CFAA by opening unnecessary gaps in the statute.  Instead, a more careful revision would ensure that violations of, for example, terms of service agreements would not trigger criminal liability for users, while also giving law enforcement means to punish malicious, damaging conduct by even “authorized” computer users.

The Computer Fraud and Abuse Act

The CFAA criminalizes many activities done after “knowingly access[ing] a computer without authorization or exceeding authorized access.”  Generally speaking, the seven provisions of the CFAA punish: (1) obtaining national security information; (2) obtaining information of a government agency or of a confidential nature (e.g., financial information); (3) trespassing in a government computer; (4) accessing a computer to commit a fraud; (5) damaging a computer (e.g., by worm, virus, or denial of service attack); (6) trafficking in computer passwords; and (7) threatening to damage a computer.

The CFAA punishes computer access “without authorization” or “exceeding authorized access.”  Penalties under the CFAA range from a misdemeanor (imprisonment for not more than one year) to 20 years incarceration, with the majority of offenses carrying a penalty of five years incarceration for a first offense and ten years for a second.  There is a jurisdictional requirement of $5,000 worth of damage which is, in effect, a technicality since that amount can be satisfied by investigative and administrative costs related to understanding and assessing an intrusion.

Aaron Swartz

Late in 2010, Swartz entered a restricted network wiring closet in the basement of an MIT building.  He then rigged a laptop and external hard drive to retrieve 4.8 million articles from JSTOR, a not-for-profit digital library that offered paid subscribers access to 2,000 academic journals.  Swartz was apprehended and arrested on January 6, 2011, as he sought to retrieve the laptop and hard drive, while obscuring his identity with a bicycle helmet.

The operative 13 count indictment was returned against Swartz on September 12, 2012 and included five counts charging violations of §1030(a)(4) (computer fraud, 5 year maximum penalty), five counts charging violations of §1030(a)(2) (unlawfully obtaining information from a protected computer, 5 year maximum penalty), one count charging a violation of §1030(a)(5) (recklessly damaging a protected computer, misdemeanor), and two wire fraud counts.

The original CFAA counts against Swartz were premised on Swartz accessing protected computers without authorization and in excess of authorized access.  In the superseding indictment, the United States alleged only that Swartz accessed protected computers without authorization.

Circuit Split

The Courts have long debated the meaning of both “without authorization” and “exceed[ing] authorized access” under the CFAA.  There have been inter and even intra circuit splits on this issue for some time.  The Fifth, Seventh and Eleventh Circuits all have held that the CFAA broadly covers violations of corporate computer use restrictions.  See U.S. v. Rodriguez, 628 F.3d 1258 (11th Cir. 2010); U.S. v. John, 597 F.3d 263 (5th Cir. 2010); and Int’l Airport Ctrs. LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006).

In contrast, more recently the Ninth and Fourth Circuits have narrowly interpreted “exceeds authorized access” as not to include mere violations of corporate computer restrictions.  In the leading case, United States v. Nosal, 676 F.3d 854 (9th Cir. 2012), the Ninth Circuit en banc dismissed the indictment of David Nosal, a former employee of a search firm, who convinced his former colleagues to download and provide him with confidential firm information.  The CFAA counts against Nosal were grounded in a theory that he aided and abetted his former colleagues to “exceed [their] authorized access” with intent to defraud.  In other words, he was alleged to have violated the CFAA by persuading his former co-workers to use a company computer in a way prohibited by company policy.  The court expressed great concern over the government’s attempt to “transform the CFAA from an anti-hacking statute into an expansive misappropriation statute.”  It ultimately held that there was no liability under the CFAA because it covers only the “unauthorized procurement or alteration of information, not its misuse or misappropriation.”  Thus, violating company policy regarding computer use is not an actionable offense, according to the Ninth Circuit, under the CFAA.  See also WEC Carolina Energy Solutions LLC v. Miller, 687 F.3d 199, 202, 207 (4th Cir. 2012) (affirming the dismissal of a complaint for failure to state a claim under the CFAA).

It is clear that the meanings of “without authorization” and “exceeding authorized access” are subject to varying interpretations.  The trend among courts, however, appears to be narrowing the scope of the CFAA rather than broadening it.

Aaron’s Law

The latest version of Aaron’s Law dates to June 20, 2013 and has been stalled in the House Subcommittee on Crime, Terrorism, Homeland Security, and Investigations since July 2013.

Aaron’s Law would make changes to both the CFAA and the wire fraud statute (18 U.S.C. §1343).  In substance, the proposal would eliminate the “exceeds authorized access” language.  It would further define “access without authorization” to include only obtaining “information on a protected computer,” that the “accesser lacks authorization to obtain,” by “knowingly circumventing one or more technological or physical measures that are designed to exclude or prevent unauthorized individuals from obtaining or altering that information.”

With the prohibition on “exceed[ing] authorized access” abolished, Aaron’s Law would decriminalize violations of an agreement, policy, duty, or contractual obligation regarding Internet or computer use, such as an acceptable use policy or a terms of service agreement.  No longer would use of a computer service by a 16-year-old arguably create criminal liability where the operative service agreement provides that the user must be over 18.  This change would bring the statute in line with the cases like Nosal that have construed the CFAA narrowly.

By limiting the applicability of the CFAA to outside computer hacking, Aaron’s Law would re-write the CFAA such that even malicious, destructive conduct by a person with legitimate access to information on a computer would not seem to be prohibited.  By eliminating “exceeding authorized access” as a basis for criminal liability, Aaron’s Law might be going too far in its efforts to limit criminal liability only to hackers.

Although Nosal and some other cases focus on whether violations of terms of service agreements should be a basis for criminal liability, “exceeding authorized access” covers a much broader swath of conduct, including users with authorized access who steal or destroy valuable information.  Under Aaron’s Law there would arguably be no liability for even the most serious misconduct undertaken by legitimate users like subscribers or employees.

The CFAA should, instead, differentiate authorized users who access immaterial, non-sensitive information from authorized users who exceed their access rights in a malicious and destructive way.  A more comprehensive amendment to the CFAA would (i) define what types of information are worthy of greater protection and (2) ensure that benign activities such as violations of terms of service agreements would not risk criminal liability.  The CFAA must still allow prosecution both of true hackers, regardless of content accessed, and authorized users who access or compromise a defined subset of sensitive or valuable information and thereby cause meaningful harm.

Finally, even had they been in place in 2010, the amendments proposed by Aaron’s Law may not have shielded Swartz from prosecution.  After all, the superseding indictment charged Swartz with “unauthorized access” of the MIT network and he allegedly circumvented both technological and physical measures to obtain JSTOR information.  Such conduct is very likely prohibited by the current version of CFAA and would have been explicitly prohibited by Aaron’s Law.

 

Allison D. Burroughs, a partner in the Litigation Department at Nutter McClennen & Fish LLP, focuses her practice on white collar criminal defense and government investigations, computer fraud and abuse and complex civil litigation.

Benjamin L. Mack, a partner in the Litigation Department at Nutter McClennen & Fish LLP, focuses his practice on securities litigation, government investigations, commercial business disputes, bankruptcy litigation and intellectual property litigation.

Heather B. Repicky, a partner in the Litigation Department at Nutter McClennen & Fish LLP, focuses her practice on civil litigation, with an emphasis on IP and complex commercial matters.


(Not) Wired: Electronic Coverage in the Federal Courts

Gertner_Nancyby Judge Nancy Gertner (Ret.)

Viewpoint

I supported electronic coverage of court proceedings throughout my career, both as a lawyer — when I tried high profile cases in state court with camera coverage — and during the seventeen years that I was a federal judge — when I did not because of the federal ban on cameras.  I understand the concerns of the opponents, but they pertain to how to implement electronic coverage, not whether.  In fact, there is something quaint about the way some still characterize the debate — “cameras in the courtroom.”  In the 80’s, cases referred to the disruptive “glare” of the television lights and bulky cameras.  Now a handheld video camera, one hidden in the courtroom wall (I had a security camera behind a hollowed out law book), or even a smart phone can do the trick.  In the 80’s, with CourtTV broadcasting “gavel to gavel” coverage of trials, the debate was about televising proceedings.  Today, we talk about streaming videos over the Internet, or posting them on electronic dockets or court websites, even as the federal court posts transcripts and pleadings.  More stunning, only a short time ago reporters covered court proceedings with paper and pen.  Today they blog or “tweet” minute-by-minute accounts as in the recent trial of James “Whitey” Bulger.  (Gone is the “Perry Mason” moment of my first murder case, when, after a dramatic development, members of the press rushed out to find the public telephones and phone in their stories.)

To say I chafed at the federal ban on cameras in an understatement.  I testified before Congress in favor of legislation giving judges discretion to allow electronic coverage, with representatives of the Judicial Conference of the United States on the other side.  In Sony BMG v. Joel Tenenbaum, believing that the District Court’s rules permitted it, I allowed “narrowcasting” a legal argument to a specific publicly available web site.  The case pitted the record companies against college students accused of illegally downloading copyrighted music from the Internet.  I said: “This case is about the so-called Internet Generation – the generation that has grown up with computer technology in general, and the Internet in particular….  It is reportedly a generation that does not read newspapers or watch the evening news, but gets its information largely, if not … exclusively, over the Internet.”  The First Circuit reversed, in part based on a rule buried in the archives of the First Circuit Judicial Council, which no party had noticed before.  In Limone v. United States, which involved accusations of FBI misconduct in connection with the imprisonment of four men, I announced my decision in open court.  Because of intense public interest, there was an overflow courtroom into which a record of the proceedings was streamed, just as in the Whitey Bulger case.  The difference between streaming the proceedings to another courtroom, rather than to the public more broadly, is to me a distinction without a difference. Indeed, the public’s right of access to trials should not depend upon whether the case is high profile or not, whether it is of interest only to the parties, or of interest to the press.

Public proceedings in the 21st century necessarily mean electronic coverage.  We understand generally that to make something public requires affirmative efforts — courtrooms big enough to meaningfully include as many people as possible, overflow rooms, even handicapped access.  And today, it requires provision for media to bring in smartphones and computers — to stream the video, to blog, to tweet.

The federal courts lag woefully behind the states.  Forty eight states (including Massachusetts) permit electronic coverage; study after study has reported favorable results.  It does not impede the fair administration of justice and does not impair the orderly conduct of proceedings.  This is so even though the state court’s docket — with murders and rapes — is far more vulnerable to distortion than the federal courts’.

As the states move into their fourth decade of electronic coverage, federal courts are stuck in yet another “experiment.”  The first was a three year trial experiment in cameras (from 1991 to 1994), at the end of which a judicial committee recommended its continuation, namely televised coverage of civil proceedings at the trial and appellate level.  The United States Judicial Conference rejected the recommendation, except with respect to appellate courts.  Apparently, appellate courts can be trusted to exercise their discretion to broadcast arguments (as the 2nd and 9th circuit do); district court judges cannot.  After Congress threatened legislation, the Judicial Conference in 2010 recommended yet another pilot — a gesture at once unnecessary and inadequate.  It is unnecessary because the data is in.  And it is inadequate because it covers only civil proceedings, and requires all parties to consent.  Small wonder that since 2010, few if any cases have been televised.

Massachusetts Rule 1:19 goes much further, allowing “electronic recording or transmitting of courtroom proceedings open to the public” by the news media.  The definition of “news media” has recently been expanded to include private individuals who “regularly gather, prepare, photograph, record, write, edit, report or public news or information about matters of public interest for dissemination to the public in any medium whether print or electronic.”  In short, blogs are allowed — so long as the blogger is registered with the court (a potential issue as distinctions between traditional media and the citizen media grow more obscure).

In a recent murder case, the Superior Court judge barred Twitter, allowing online blogging only.  Tweeting, he suggested, with only 140 characters, could not adequately report the trial, and would be cumulative to other modes of real time access.  The line the judge drew was troubling.  If the tweeting is not disruptive of the proceedings — and it is not, any more than any other social media — it is not clear that a court should try to determine which electronic communications are adequate to the task, which outlet really needs to do it.

Trial judges plainly need to be the gatekeepers with respect to what is covered and how.  We have to learn how to draw careful and reasoned lines, particularly as the technology evolves. (“No cameras,” no matter how the technology and the audience has changed, is not a thoughtful policy; it is the opposite.)  Social media creates extraordinary challenges for the conduct of jury trials — especially, to warn jurors about going online during the trial, when they are used to doing that from the moment they wake up.  But we are a long way from the OJ Simpson case of twenty years ago, when the conduct of a televised trial was widely disparaged.  The challenge now is to appropriately regulate the new technology — not to ignore it.

Judge Nancy Gertner was appointed to the bench in 1994 by President Clinton. She has written and spoken widely on various legal issues and has appeared as a keynote speaker, panelist or lecturer concerning civil rights, civil liberties, employment, criminal justice and procedural issues, throughout the U.S., Europe and Asia. In September of 2011, Judge Gertner retired from the federal bench and became part of the faculty of the Harvard Law School teaching a number of subjects including criminal law, criminal procedure, forensic science and sentencing, as well as continuing to teach and write about women’s issues around the world.