“We Bear a Responsibility to be Vigilant”

starkey_carolby Carol A. Starkey

President’s Page

I have always seen the practice of law as one of the most significant means of participating in our unique American democracy. As lawyers, we are accustomed, by training and practice, to embracing an adversarial role while still advancing a principled position.

Still, many of us in the bar could not help but be deeply troubled by the implications of some of the rhetoric in this year’s election campaign upon our long-held principles of American jurisprudence, including respect for the rule of law, due process, equal rights, and access to justice. Like so many of you, I have been angered and saddened to hear comments, and learn of events, that disrespect individuals who identify as minorities, or come from diverse backgrounds, beliefs and cultures. Such conduct erodes our Constitutional democracy, resulting in divisiveness, fear, and anxiety, all of which are felt acutely not only by adults, but perhaps most disturbingly, by our children as well.

In this context, I wanted to reach out to my colleagues at the bar to let you know that I believe the work of the Boston Bar Association, and its mission, have rarely been more relevant.

The BBA has a strong record of rising above division, finding common ground, and inspiring diverse groups to overcome disagreement to advance access to justice and excellence in the practice of law. We are – and will continue to be – a solutions-oriented convener that welcomes all stakeholders to exchange ideas and build relationships. But we also bear a responsibility, to one another and in the service of our communities, to be ever watchful and vigilant in ensuring that individual and due process rights remain valued and protected as bedrock principles in the implementation of our laws.

I write to our members now, to assure you that the BBA stands ready, willing and able to answer any necessary call to action resulting from this climate of uncertainty and ever changing events.

Over the past week, we have heard many expressions of concern, – both from our members and from local organizations with whom we partner.  But we have also experienced a true sense of inspiration by the commendable desire of those same members and organizations to become actively engaged. We recognize that as lawyers, we are at our best when we are dealing with well-defined issues and actual cases and controversies. I want to state — unequivocally — that we remain committed to our work on the following fronts:

Immigration:

  • The BBA is committed to protection of due process rights for all, as enumerated in the United States Constitution, with its Bill of Rights, and our Massachusetts Constitution, with its Declaration of Rights. Yet it is not enough for us to remain watchful. We will be empowering others to do the same through “Know Your Rights” programs in our communities and schools.
  • We must remain cognizant of deportation as a potential collateral consequence of involvement with the justice system. Just this week, the SJC heard arguments on a case regarding the so-called Annie Dookhan defendants, in which the BBA filed an amicus brief asking the Court to vacate all remaining convictions without prejudice. The risk that any of these individuals might face deportation proceedings on the basis of a conviction supported by tainted drug-lab evidence adds greatly to our argument for a “global remedy.”

Harassment, discrimination, and hate crimes:

  • I share the concern of many of our members over the recent spike in acts of violence and intimidation against members of minority populations. Such actions must never be tolerated. We will continue to work with our partners at the six local affinity bar associations – and seek ways to engage with other, similar organizations – to defend individuals and groups that are under threat, and to educate people about their rights.

Access to justice:

  • Our advocacy on behalf of access to justice for all residents will not waver. Join me on January 26th at Walk to the Hill as we once again make the case to the Governor and the Legislature, for a substantial increase in funding for civil legal aid, building on the BBA’s Investing in Justice task-force report. Providing all with access to justice is more important than ever.
  • In addition, we are working with Attorney General Maura Healey and other legal services organizations to identify emerging legal needs in the community, particularly as they pertain to the increase in Hate Crimes and Immigration issues.

The BBA will continue to do everything we can to support the core values of meaningful access to justice and of diversity and inclusion that are at the heart of who we are as an organization of lawyers. Now is the time for all of us at the BBA to show Boston, the country, and the world that we can continue to advance respectful, innovative, and common-ground solutions to big challenges. But that must start at home with listening to one another and getting involved. I am proud and grateful to work with all of you, and I have no doubt that you will continue the great tradition in this Commonwealth during times of change or uncertainty, by rolling up your sleeves and asking the simple question, “How can I help?”

Carol A. Starkey is the president of the Boston Bar Association. She is a partner at Conn, Kavanaugh, Rosenthal, Peisch & Ford. 

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Predicting the Complex Future of Retroactivity in Massachusetts: Commonwealth v. Sylvain

by Professor Daniel Kanstroom

Case Focus

Kanstroom_Dan“[We] cannot escape the demands of judging or of making the difficult appraisals inherent in determining whether constitutional rights have been violated.”

Goldberg, J., Haynes v. Washington, 373 U.S. 503, 515 (1963)

In Commonwealth v. Sylvain,466 Mass. 422 (2013), the SJC held that the requirements placed on criminal defense lawyers to properly advise defendants about certain immigration consequences enunciated in Padilla v. Kentucky, 559 U.S. 356 (2010) are retroactive to 1997.  The SJC, relying both on the Sixth Amendment and on art. 12 of the Massachusetts Declaration of Rights, diverged from the U.S. Supreme Court on the retroactivity question.  This very important—but rather esoteric—immigration law case may have profound implications regarding the retroactivity of recent holdings in such areas as public trial rights during jury selection and juvenile sentencing.

The SJC achieved a just outcome while reminding the legal community why retroactivity is an extraordinarily difficult jurisprudential concept and why immigration law has long been known as a subject that could “cross the eyes of a Talmudic Scholar.” The daunting complexities presented by the case derived in part from certain anachronistic late nineteenth century legal doctrines establishing “plenary power” over noncitizens seeking to enter the United States as well as those facing deportation.  The Court has held that certain noncitizens seeking to enter the United States have no enforceable constitutional rights and that deportation exercised under that power was not criminal punishment.  Therefore, the specific constitutional norms attendant to the criminal justice system are largely inapplicable to deportees.  See Fong Yue Ting v. United States, 149 U.S. 698 (1893).

For more than a century, the constitutional implications of these doctrines and their progeny frequently (but not always) defeated claims of ineffective assistance of counsel by deportees who were badly advised (or not advised at all) by their criminal lawyers.  Noncitizens have the right to appointed counsel in the criminal justice system, but they do not have such a right in deportation proceedings.  Deportation has often been deemed a civil “collateral” consequence of criminal conviction.  Among other implications of this categorization, criminal defense lawyers have sometimes been found to have no professional duty to advise defendants about such consequences.

In 2010, however, the Supreme Court decided Padilla v. Kentucky, 559 U.S. 356 (2010), a case in which the question of ineffective assistance was squarely presented. Mr. Padilla, a long-term lawful permanent resident of the United States, had apparently been advised to plead guilty to a drug-related charge in criminal court, which—unbeknownst to him—virtually guaranteed his deportation and lifetime banishment from the United States and his family.  The Court upheld his claim that his criminal defense counsel was ineffective due to this incorrect advice concerning the risk of deportation. This was in many respects a path-breaking, virtually unprecedented constitutional decision, with powerful Fifth and Sixth Amendment implications. See generally, Daniel Kanstroom, The Right To Deportation Counsel in Padilla v. Kentucky: The Challenging Construction of the Fifth-And-A-Half Amendment, 58 UCLA L. REV. 1461 (2011); see also, Daniel Kanstroom Padilla v. Kentucky and the Evolving Right to Deportation Counsel: Watershed or Work-in-Progress? 45 NEW ENGLAND L. REV. 305 (2011).

The Court, most significantly, recognized that deportation as a consequence of a criminal conviction now has such a close connection to the criminal process that it is uniquely difficult to classify it as either a “direct or a collateral consequence.”  Padilla at  364.  The two systems, in short, have become inextricably linked. Further, the Court recognized that “the landscape of federal immigration law has changed dramatically.” In the past there were only a “narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation.” But now, the regime contains a much-expanded class of deportable offenses and it has limited the authority of judges “to alleviate the harsh consequences of deportation.” Id. at 357.  As a result of these changes, the “drastic measure” of deportation or removal, . . . is now virtually inevitable for a vast number of noncitizens convicted of crimes.  Deportation has become “an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” Id. at  362 (emphasis added).  From this logic, one can easily see why substantial due process protections, and also some of the more specific protections normally tied to the criminal justice system, are warranted. See generally Daniel Kanstroom, Deportation, Social Control, and Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, 113 HARVARD LAW REVIEW 1890-1935 (June, 2000).

The question quickly arose whether the Padilla model would be retroactive.  Unfortunately, Padilla itself did not address this question.  In Commonwealth v. Clarke, 460 Mass. 30 (2011), the SJC held that Padilla was retroactive, at least as to convictions that became final after April 1, 1997 (the effective date of relevant changes to deportation law).  The SJC followed a long-standing framework derived from Teague v. Lane, 489 U.S. 288 (1989). See also, Commonwealth v. Bray, 407 Mass. 296, 300-301 (1990) (adopting Teague model).  The essential question from Teague and progeny was whether the Supreme Court in Padilla had announced a “new” rule.  A “new” rule, very simply put, “breaks new ground or imposes a new obligation” on the government.  If so, the Padilla norms would not be retroactive. In Clarke, the SJC concluded that Padilla was not a new rule because it was merely an application of well-recognized Sixth Amendment ineffective assistance of counsel standards. See Strickland v. Washington, 466 U.S. 668 (1984); Clarke at 34-46.

So far, so good; and so far, at least moderately clear.  However, things soon got murkier.  In Chaidez v. U.S., 133 S. Ct. 1103 (2013), the Supreme Court held that Padilla had in fact announced a “new” rule and therefore its holding should not be applied retroactively by federal courts.  Chaidez, however, did not necessarily bind state courts.  Indeed, the Supreme Court had recognized the propriety of such divergence in Danforth v. Minnesota, 552 U.S. 264 (2008) in which the Court held that Teague does not constrain the authority of state courts to give broader effect to “new” rules of criminal procedure.

In Sylvain, the SJC continued to view retroactivity differently from the Supreme Court.  The SJC concluded that Padilla did not announce a “new” rule for the “simple reason that it applied a general standard—designed to change according to the evolution of existing professional norms—to a specific factual situation.”  Sylvain at 435 (citing Clarke, supra at 36, 38-39, 43; Chaidez, supra at 1114-1116 (Sotomayor, J., dissenting).  Importantly, the SJC based its ruling both on the Sixth Amendment and on art. 12 of the Massachusetts Declaration of Rights.  As one excellent Practice Advisory notes, art. 12 may prove to be a broader source of rights for noncitizens than the Sixth Amendment.  See CPCS, Immigration Impact Unit, Practice Advisory on the Retroactivity of Padilla in Massachusetts: Commonwealth v. Sylvain, 466 Mass. 422 (2013), October 2013.

The SJC also correctly noted that professional standards in Massachusetts have long required criminal defense lawyers to advise noncitizen clients about immigration consequences.  Practitioners thus now face a certain dissonance in that criminal defendants prosecuted in federal courts who face or have faced deportation may only cite Padilla prospectively, while state court defendants in Massachusetts may use the Padilla ruling to seek to vacate convictions dating back to 1997.  The practical difficulties involved in bringing such claims on behalf of deportees are still significant, however. See, e.g., Perez Santana v. Holder, No. 12-2270 (1st Cir. Sept. 27, 2013) (invalidating regulation barring such claims), and Bolieiro v. Holder, No. 12-1807 (1st Cir. Sept. 27, 2013) (same).

Sylvain may also portend greater assertiveness by the SJC in certain other arenas where retroactive application of constitutional holdings is at issue.  The SJC has now made clear that it considers a “new” rule to be such only if the result is contrary to precedent.  Sylvain, at 434.  This is rather narrower than the approach taken by the Supreme Court, which has used the formulation of that which was not “apparent to all reasonable jurists.”  The SJC formulation could thus expand state court remedies for other violations of constitutional rights.  Indeed, the Court highlighted that retroactivity in Sylvain was required by “tenets of fundamental fairness.”  Sylvain at 437, citing Commonwealth v. Amirault, 424 Mass. 618, 639 (1997).  It therefore seems quite possible that Sylvain could influence such pending questions as the retroactivity of rulings about mandatory life without parole sentences for juveniles—See Diatchenko v. D.A. for the Suffolk District, SJC-11453—and public trial rights during jury selection. See Commonwealth v. Alebord, SJC-11354.  Retroactivity analysis will thus have to consider, in addition to precedent, such factors as the evolution of practice, reliance, and deeper normative questions of justice and fairness.

Daniel Kanstroom is a Professor of Law and Director of the International Human Rights Program at Boston College Law School. He is also the Founder of the Post-Deportation Human Rights Project.