Truth and Justice with Capital Letters

by Hon. Margaret H. Marshall and Marina Pullerits

Voice of the Judiciary

Human reason is beautiful and invincible.
No bars, no barbed wire, no pulping of books,
No sentence of banishment can prevail against it.
It establishes the universal ideas in language,
And guides our hand so we write Truth and Justice
With capital letters, lie and oppression with small.
It puts what should be above things as they are,
Is an enemy of despair and a friend of hope. . . .

Czeslaw Milosz, Incantation. Translated by Cseslaw Milosz and Robert Pinsky.

January 9, 2020: The question comes near the end of oral argument. “What is the obligation of the Court,” asks the Chief Justice, when defense counsel reports allegations of racism in jury deliberations that may have changed some votes to guilty? The Chief Justice repeats the question: “What’s a judge’s obligation” in such circumstances? The answer comes on September 24, 2020, ten days after his death. It is the obligation of a judge to address promptly any allegation that racial or ethnic bias may have infected the jury deliberations, the Chief Justice wrote. Commonwealth v. McCalop, 485 Mass. 790, 791 (2020). “A guilty verdict arising from racial or ethnic bias not only poses a substantial risk of a miscarriage of justice,” he continued, “but also, ‘if left unaddressed, would risk systemic injury to the administration of justice.’” Id. (quoting Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 868 (2017)).

Ralph D. Gants served as Chief Justice of the Supreme Judicial Court from 2014 to 2020. McCalop, and several more of his final opinions, are exemplars of the tenets he held for guiding the Massachusetts judiciary. Each opinion is beautifully written, carefully reasoned. Each holds in equipoise the resolution of the case at hand, and the articulation of broader principles, signposts to ensure future decisions will be fair, just, and sensible. Each is a painful reminder of how much we have lost by his untimely death. Chief Justice Gants wrote to establish universal ideas in language; human reason guided his hand to write Truth and Justice with capital letters.

In two of Chief Justice Gants’ last opinions, the Court recommended changes to the Model Jury Instructions on Homicide.[1] In Commonwealth v. Castillo, 485 Mass. 852 (2020), released on October 6, the Court set aside a conviction of murder in the first degree and reduced the degree of guilt to murder in the second degree because, the Chief Justice wrote, the Model Jury Instructions on the meaning of “extreme atrocity and cruelty” did not adequately distinguish between murder in the first and second degree. Id. at 854. “The defendant’s conduct—firing a single shot into the victim’s back—was stupid, senseless, and cowardly,” he wrote. Id. at 867. “Indeed, where it tragically caused the death of a young man, it was atrocious and cruel. . . . But extreme cruelty means that the defendant caused the person’s death by a method that surpassed the cruelty inherent in any taking of human life . . . . Nothing about the facts of this case suggests that the defendant’s conduct met that standard.” Id. at 867–68 (emphasis in original) (quotation and citation omitted). The Court included a new provisionally revised model jury instruction to better distinguish conduct that warrants a conviction of murder in the first degree from conduct that should result in a conviction of murder in the second degree. Id at 865–66, 869.

In Commonwealth v. Dunphe, 485 Mass. 871 (2020), released on October 7, Chief Justice Gants again authored an opinion vacating a conviction of murder in the first degree because of inadequate jury instructions, this time regarding the defendant’s criminal responsibility for the killing. The defendant, suffering from hallucinations and a false belief that the victim was his abusive father, had killed a fellow patient in a psychiatric ward. Id. at 872. The trial judge instructed the jury in a way “that closely tracked” the Model Jury Instructions. Id. Nevertheless, the Chief Justice wrote, there was a “significant risk” that the jury could misunderstand those instructions. Id. at 889. “What our case law declares, but our model jury instructions do not, is that if a defendant has a mental disease or defect, its origins are irrelevant: it does not matter whether the disease or defect arose from genetics, from a childhood disease or accident, from lead poisoning, from the use of prescription medication, or from the chronic use of alcohol or illegal drugs. . . . A drug-induced mental disease or defect still constitutes a mental disease or defect for purposes of a criminal responsibility defense.” Id. at 880–81 (citation omitted). “Intoxication from alcohol or the high from drugs is not a mental disease or defect where the loss of capacity ends when the effects of the alcohol or drug wear off; a mental disease or defect is something more enduring, reflecting something about the person’s brain chemistry that, although perhaps not permanent, is more than the transient effect of the person’s substance use,” he wrote. Id. at 880. The Court again included provisionally revised model jury instructions “to address what we conclude is a potential and problematic risk of confusion.” Id. at 873, 884–89.

As a final example, a district court judge’s ruling that a defendant violated a condition of probation by reporting on a sex offender registration form that his work address was his home—without also reporting as a work address a home in Lynn where he was doing repair work—came under scrutiny in Commonwealth v. Harding, 485 Mass. 843 (2020), released on October 5. The Court reversed in an opinion authored by the Chief Justice, where his search for what he would term “sensible” outcomes is clear: “The interpretation [of ‘work address’] that the Commonwealth asks us to adopt would suggest that a registrant who is self-employed might not be self-employed at all, because each client for whom the registrant provided services for the requisite time period would be deemed the employer, whose address the registrant would be required to record. No reasonable registrant filling out this form would understand the form to ask for this information. Nor would the Commonwealth’s interpretation make practical sense.” Id. at 847. “[I]f the defendant, or other self-employed registrants like him, were required to provide a client’s address as a ‘work address,’” he continued, “many clients who might otherwise hire him might refrain from doing so because they might not want their home address listed on SORB’s website as the sex offender’s place of employment. As a result, the otherwise self-employed sex offender might soon be functionally unemployed.” Id. at 849.

Ralph Gants ended his tenure as Chief Justice as he began it. In remarks delivered when he took the oath of office on July 28, 2014 he said: “I firmly believe that our judicial system will be in a better place in the next three, five, ten years. My confidence does not rest in my belief in me, because I know that I can accomplish none of this alone. My confidence rests in my belief in we, in what I call our justice team. . . . If we are willing to search for new ways to solve old problems, if we are willing to put our egos aside and remember that it is not about us, if we are willing to work our tails off, if we are willing to work together, I know that we can build a justice system that will not only dispense fair, sensible, and efficient justice, that will not only help to address the formidable problems faced by so many of the residents of this Commonwealth, but that will be a model for the nation and for the world.”

Ralph Gants searched for new ways to solve old problems. He worked his tail off. He put aside his ego and worked with others to build a model judicial system. In oft-cited remarks, Oliver Wendell Holmes, Jr., then an Associate Justice on the Supreme Judicial Court, said: “The law is the calling of thinkers. But to those who believe with me that not the least godlike of man’s activities is the large survey of causes, that to know is not less than to feel, I say—and I say no longer with any doubt—that a man may live greatly in the law as well as elsewhere; that there as well as elsewhere his thought may find its unity in an infinite perspective; that there as well as elsewhere he may wreak himself upon life, may drink the bitter cup of heroism, may wear his heart out after the unattainable. . . .” Chief Justice Ralph D. Gants wore his heart out seeking to address the formidable problems faced by so many. He wreaked himself upon life. Why? He was simply being Ralph.

[1] The Justices first approved and recommended the use of Model Jury Instructions on Homicide in 1999. The Court issued revised Model Jury Instructions in 2013. In April 2018, the Supreme Judicial Court again released revised Model Jury Instructions on Homicide.

Margaret H. Marshall is Senior Counsel at Choate Hall & Stewart LLP. She served as Associate Justice (1996–1999) and as Chief Justice (1999–2010) of the Supreme Judicial Court.

Marina Pullerits is an Associate at Choate Hall & Stewart LLP. She served as a law clerk (2018–2019) to Chief Justice Ralph D. Gants.


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.