The Chief’s Challenge

by Martin Murphy

President’s Page

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

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

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

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

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

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

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

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

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

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

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

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

Superior Court Judge Ralph Gants

by Chief Justice Judith Fabricant

Voice of the Judiciary

Ralph Gants took the oath as a judge of the Superior Court on November 12, 1997.  At age 43, he had outstanding educational achievements and an extensive background in high-level federal law enforcement and large firm practice, but relatively little experience in the more rough-and-tumble environment of state court. His new colleagues were ready to welcome him as we do everyone who joins us. At the same time, some may have wondered what mindset he would bring, and how he would make the transition. Chief Justice Robert Mulligan conducted Ralph’s induction ceremony on November 13, 1997, in the high-rise building on Thorndike Street in Cambridge later known as the Edward J. Sullivan Courthouse.  The Chief recited the standard induction speech, pledging to our new colleague “our collective and individual fellowship, assistance and cooperation,” and reciting that “each of your colleagues stands ready to assist you in any way you may need, and we know that we can depend on your help when we need it.” 

I never had occasion to talk with Ralph about that ceremony, but I know that he heard those words and took them seriously – or that his natural inclinations led him to do exactly what those words call for. When I was ill for several months, he called regularly, and sent me his favorite novels, which provided comfort through both the mental diversion of reading and the expression of his caring. When the media criticized any judge’s decision, Ralph was among the first to call.  Long before we had our current structured orientation program, Ralph would offer new judges support and consultation, including the fruits of his remarkably well-indexed resource library. Ralph would consult colleagues as well, always doing his own research first, so that his questions reflected full awareness of established law and focused on what remained open to interpretation or discretion. 

From the beginning, Ralph recognized the value of showing up, in times of celebration and fellowship, as well as times of loss. He came to retirement receptions, birthday parties, wakes, and funerals, not just for judges, but also for assistant clerks, court officers, court reporters, and others who were part of our day-to-day work family. He played softball; recited baseball statistics; told funny stories at his own expense; sang silly songs; asked about family members; and, more generally, was good company.  

He did all of that while handling the most challenging cases in every field, civil and criminal, jury and non-jury, all smoothly and skillfully. His opinions were thorough, scholarly, wise, and witty, sprinkled with references to sports, classic movies, and Broadway musicals. He wrote a lot, but his writing never carried a whiff of showing off. He wrote to grapple with complex issues, to explain his reasoning, and to assure the parties that he had heard and considered their positions. When writing would not serve those purposes, he would instead announce decisions orally from the bench, with remarkable clarity and organization, in the manner pioneered by Martha Sosman.

Ralph’s collegiality, along with his humility and good humor, quickly earned him good will, while his towering intellect and conscientious devotion to the law earned him universal respect. He needed both, because from very early in his tenure, Ralph demonstrated his independence, his systemic thinking, and his willingness to express his views to those in positions of power without concern for consequences.

Ralph had no fear of public criticism, or of reversal.  When he found that police errors required dismissal of a charge, or that a police witness’s misrepresentation required suppression of evidence, he said so unequivocally, and sent a copy of his findings to the police commissioner. When presented with expert testimony about a sex offender, he found and read the scientific literature himself, surely cognizant that reversal might follow, as it eventually did.  He enjoined thousands of mortgage foreclosures founded on predatory loans, knowing there was little precedent for his ruling, but believing it was right. As Ralph himself acknowledged at his swearing-in to the SJC in 2009, these decisions put his nomination at some risk. He accepted that risk. 

Ralph also had no fear of court hierarchy. When he arrived at his first assignment in Middlesex County in 1997, he brought his own laptop computer, just as the court was beginning to issue standard equipment, with standard policies for its use.  Barely two years into his judicial service, he sent a letter to the then Chief Justice proposing a process of setting goals and objectives for such matters as case management, long-range planning, and legislation. In 2002, when court leaders announced measures to manage a budget crisis, Ralph wrote a series of eloquent, respectful, and persuasive letters explaining why those measures were misguided.  In about 2005, when he sat for the first time in the Suffolk First Criminal session, he proposed to the Regional Administrative Justice a comprehensive revamping of case-flow processes. 

From my current perspective as Chief, I can easily see how Ralph’s constant suggestions for improvement might have ruffled feathers, especially early in his tenure. But that was not the reaction he elicited. To the contrary, colleagues and court leaders loved and valued him, even though the court did not always adopt his ideas. I attribute that to his humility. Ralph never thought he was smarter or more capable or more committed than anyone else, although many of us thought he was. He respected all of us, and sought to enable all of us together to serve the public as well as we possibly could. 

After Ralph left the Superior Court in early 2009, he came back regularly to speak at our educational conferences and at what we call “New Judge School.” He seemed to feel that he was coming home, and we felt that we were welcoming a returning family member. One tip he gave, which I try to pass on, was this:  If the law seems to be telling you to do something absurd, don’t do it. Think longer. Consult others. Find a solution that makes sense. 

Ralph showed us a way to think about the law so that it makes sense, and it serves. His memory is a blessing to all of us and to the public.  

Chief Justice Judith Fabricant joined the Superior Court in 1996, and was appointed as Chief Justice on December 1, 2014. Prior to her judicial service, Chief Justice Fabricant served as an Assistant Attorney General for Massachusetts, including four years as Chief of the Government Bureau. She also served as an Assistant District Attorney for Essex County, Massachusetts, and for Wake County, North Carolina. She worked for the Boston firm Hill & Barlow, after serving as a law clerk to the Hon. Levin H. Campbell of the United States Court of Appeals for the First Circuit. She is a graduate of Yale College and Yale Law School.