by Simone R. Liebman
In October, the Supreme Court of the United States heard argument in three cases that involve an unconventional division between the U.S. Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC), the federal agency authorized to interpret and enforce Title VII of the Civil Rights Act of 1964 (Title VII). These cases concern whether Title VII’s prohibition against bias “because of . . . sex” encompasses employment discrimination based on sexual orientation and transgender status. At the federal circuit court level, the EEOC argued that discriminating against an employee because of sexual orientation and gender identity amounts to sex discrimination under Title VII. When the cases were appealed to the Supreme Court, however, the DOJ took the extraordinary step of filing briefs on behalf of the EEOC, rather than permitting the agency to do so. Moreover, the DOJ urged the Court to review Title VII restrictively, contrary to the EEOC’s established position, and argued that the law does not explicitly prohibit sexual orientation or gender identity discrimination. The split in the federal government was further underscored when former federal officials, including the EEOC’s former chairs, commissioners, and general counsels, filed briefs arguing that sexual orientation and gender identity are intrinsically functions of sex and predicated on sex stereotypes.
The DOJ’s effort to override the authority and precedent of the EEOC is unique and historically noteworthy. And it provides a sharp contrast with the robust protections ensuring equal opportunities in employment available to Massachusetts employees through chapter 151B of the Massachusetts General Laws as enforced by the Massachusetts Commission Against Discrimination (MCAD). In enacting G.L. c. 151B in 1946, the Legislature granted the MCAD broad remedial powers and significant enforcement authority. The MCAD is a law enforcement agency with police powers designed to vindicate public rights. This legislative mandate has shaped judicial precedent, often putting Massachusetts at the vanguard in providing protection for employees. The statutory scheme includes a case process that is accessible to victims of discrimination regardless of socio-economic class and results in remedies designed to compensate past wrongs and deter future illegal workplace conduct. Due to the independent, prosecutorial nature of the agency, courts have found that victims of discrimination at the MCAD may proceed in situations where private litigants would otherwise have been barred. The current battle in the Supreme Court over who interprets Title VII, and whether the law should be broadly or restrictively construed, demonstrates the importance of the MCAD’s ability to act in its own name as a public law enforcement agency to protect civil rights in Massachusetts.
G.L. c. 151B grants the MCAD law enforcement authority.
Chapter 151B has always prohibited religious, race, national origin and ancestry discrimination. The Legislature acknowledged that discriminatory conduct is no less than a “harmful influence to our democratic institutions” and stated that “no well-informed, right thinking person can be oblivious or indifferent to this evil.” The elimination of discrimination, the Legislature declared, was a “corner-stone” upon which “world peace must be based.” With extraordinary legislative foresight, the statute authorized the MCAD at its inception to act as a civil prosecutor with significant enforcement authority. The legislation granted the MCAD the ability to conduct investigations; subpoena individuals; and issue complaints in its own name, even where no complaint has been filed by an aggrieved person. To ensure that the MCAD has the opportunity to identify trends and, if appropriate, take action, MCAD’s enforcement proceedings “shall, while pending, be exclusive,” taking precedence over any other type of recourse available. The statute imposed criminal sanctions, including imprisonment, where an employer willfully resists, prevents, impedes, or interferes with the MCAD in the performance of its statutory duties.
G.L. c. 151B Mandates Liberal Construction.
Of considerable importance, the legislation explicitly requires that G.L. c. 151B “be construed liberally for the accomplishment of the purposes” of the statute. This directive has resulted in significant protections for Massachusetts employees. In 2013, the Supreme Judicial Court held that G.L. c. 151B prohibits discriminating against an employee based on the employee’s association with an individual who is disabled, despite the absence of an explicit statutory prohibition against associational disability discrimination. In 2017, the SJC was the first state appellate court to conclude that under specific circumstances, an employer may be required to reasonably accommodate an employee with a debilitating medical condition that is treated through the use of medical marijuana. This year, the SJC concluded that an employer could be found to have engaged in illegal discrimination even when the discriminatory act in question was a lateral transfer, without any effect on the employee’s base salary, work responsibilities, or title. Each of these cases relied, in large part, on the long-standing mandate that G.L. c. 151B must be interpreted liberally to achieve its remedial purposes. In contrast, Title VII has no such mandate.
The MCAD’s case processing furthers the remedial goals of the statute.
There is no fee for filing a charge of discrimination with the MCAD and no requirement to obtain legal assistance in filing. If the investigating commissioner concludes that the case has “probable cause” to proceed, and the charging party does not hire private counsel, the matter is assigned to a Commission attorney to prosecute the matter in the public interest. Almost half of the cases found by the MCAD to have probable cause are assigned to a Commission attorney, who generally prosecutes the matter through public hearing at no cost to the complainant. After probable cause has been found, the Commission schedules a mandatory conciliation conference, again at no cost to the parties, in which an MCAD conciliator “will attempt to achieve a just resolution of the complaint and to obtain assurances that the Respondent will satisfactorily remedy any violations . . . and take such action as will assure the elimination of the discriminatory practices, or the prevention of their occurrence in the future.” Many cases are resolved at the conciliation conference, and include public interest relief such as training or policy change.
The case is certified to public hearing if the investigating commissioner determines that the public interest so requires, and a complaint is issued in the name of the Commission. It will then be heard by an MCAD hearing officer or a commissioner with expertise in G.L. c. 151B. If the employer is found to have violated the statute, the MCAD issues remedies designed to deter future illegal conduct, including a cease and desist order, a wide array of injunctive and affirmative relief such as training, reinstatement, policy change, and civil penalties, in addition to attorneys’ fees and compensatory damages to make the complainant whole. See Stonehill College v. Massachusetts Comm’n Against Discrimination, 441 Mass. 549, 563 (2004).
The MCAD may proceed where private litigants may not.
The MCAD’s “police powers” allow it to proceed with civil prosecutions in situations where a private litigant seeking redress in court could not. For example, where an employer files for bankruptcy during a civil proceeding, the automatic stay preventing the continuation of any civil proceeding generally applies. Cases pursued through the administrative process at the MCAD, however, fall within the exception to the automatic stay that allows governmental units to exercise police or regulatory power. Recognizing the “strongly felt” public policy against discrimination and the enforcement powers granted to the MCAD, the court in In re Mohawk Greenfield Motel Corp., 239 B.R. 1 (Bankr. D. Mass. 1999), held that the MCAD possessed police or regulatory power that qualified for the exception. The court further acknowledged that while back pay awards have a financial benefit to an employee who proves liability and is awarded victim-specific relief, the imposition of this remedy ensures future compliance and serves a public purpose: ensuring that the employer at issue “as well as others who might contemplate similar odious behavior, would be dissuaded from its future practice.” Id. at 9. Crucial to this decision exempting MCAD proceedings from the automatic stay was the recognition that it is fundamental to the MCAD’s authority to act in the public good to identify and remediate discriminatory conduct without excessive delay, and that “the benefit to the public arising from the continuing capability of MCAD to identify and sanction discriminatory behavior overshadows any associated pecuniary benefit to the victim of that discrimination.” Id. at 9.
Similarly, it was the public enforcement nature of the MCAD’s process that led the SJC in Joulé, Inc. v. Simmons, 459 Mass. 88 (2011), to permit the continued prosecution of an MCAD claim even where a binding pre-employment arbitration agreement required the victim of discrimination to arbitrate the claim rather than file a private right of action. Acknowledging that it is the MCAD and not the complainant that prosecutes the discrimination claim, the SJC concluded that mandatory arbitration clauses, otherwise applicable to private claims of workplace discrimination, do not and cannot bar administrative enforcement proceedings under G. L. c. 151B, § 5. Id. at 95-96. Given that over half of American private-sector nonunion employees are subject to mandatory arbitration procedures, the ability to proceed with a claim at the MCAD despite a binding arbitration agreement is of notable significance to employees in the Commonwealth. In Whelchel v. Regus Management Group, LLC, 914 F. Supp. 2d 83 (D. Mass. 2012), the substantial state interest in preserving the MCAD’s oversight role over discrimination claims led the court to refuse to allow an employer to remove an MCAD matter to federal court. These practical advantages to proceeding at the MCAD all flow from the Legislature’s recognition over seventy years ago that the main object of an MCAD proceeding is to “vindicate the public’s interest in reducing discrimination in the workplace by deterring and punishing, instances of discrimination by employers against employees.” Stonehill College, 441 Mass. at 563.
When the Legislature enacted G.L. c. 151B in 1946, no one could have foreseen the current divisiveness in the federal government, nor were there any federal civil rights protections or an EEOC in place to enforce them. That was not to come into play until 1964. But the Massachusetts Legislature created safeguards resilient enough to withstand the winds of change.
Rather than merely creating a forum through which private litigants resolve disputes, the Legislature recognized the need for an independent, public agency to promote and protect the fundamental right of Massachusetts citizens to obtain equal opportunities in the workplace.
Simone R. Liebman is Commission Counsel at the MCAD where she where she represents the agency in Massachusetts trial and appellate courts, files amicus briefs in select cases, assists with the drafting of policy and guidance, prosecutes cases through public hearing, and conducts affirmative litigation. This article represents the opinions and legal conclusions of its author and not necessarily those of the MCAD. Opinions of the MCAD are formal documents rendered pursuant to specific statutory authority.
 Altitude Express, Inc. v. Zarda, No. 17-1623 and Bostock v. Clayton County, Georgia, No. 17-1618 involve the question of whether sex discrimination under Title VII includes bias based on sexual orientation. R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, No. 18-107, addresses the question of whether it is a violation of Title VII to discriminate against an employee based on the employee’s transgender status or under a theory of sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
 http://www.abajournal.com/news/article/eeoc-doesnt-sign-us-brief-telling-supreme-court-that-transgender-discrimination-is-legal; https://www.reuters.com/article/us-otc-doj/once-again-trump-doj-busts-convention-splits-government-in-high-profile-employment-case-idUSKBN1AC32U.
 See G. L. c. 151B, inserted by St. 1946, c. 368, § 4. Since its enactment, G.L. c. 151B has been expanded to include other protected categories. Currently, G.L. c. 151B prohibits discrimination based on race, color, religious creed, national origin, disability, sex, gender identity, sexual orientation, genetic information, pregnancy (including a pregnancy-related condition), veteran status, age, and active military service. G.L. c. 151B, § 4. The MCAD also has jurisdiction over a host of other types of discriminatory conduct including retaliation, failure to accommodate disabilities, housing discrimination, certain inquiries regarding criminal records, parental leave, public accommodation discrimination, mortgage lending and credit discrimination, and certain types of education discrimination.
 REPORT OF THE SPECIAL COMMISSION RELATIVE TO THE MATTER OF DISCRIMINATION AGAINST PERSONS IN EMPLOYMENT BECAUSE OF THEIR RACE, COLOR, RELIGION, OR NATIONALITY, H.R. Rep. No. No. 337, 154th Leg., 1st Sess. at 2 (Mass. 1945).
 REPORT OF THE GOVERNOR’S COMMITTEE TO RECOMMEND FAIR EMPLOYMENT PRACTICE LEGISLATION, H.R. REP. No. 400, 154th Leg., 2nd Sess., at 7 (Mass. 1946).
 G. L. c. 151B, §§ 1(7) & 5, inserted by St. 1946, c. 368, § 4.
 G. L. c. 151B, § 9, inserted by St. 1946, c. 368, § 4.
 G. L. c. 151B, § 8, inserted by St. 1946, c. 368, § 4.
 G. L. c. 151B, § 9.
 Flagg v. AliMed, Inc., 466 Mass. 23 (2013) (“reading the statutory language broadly in light of its remedial purpose, and in order best to effectuate the Legislature’s intent, we think that the concept of associational discrimination also furthers the more general purposes of c. 151B as a wide-ranging law, ‘seek[ing] … removal of artificial, arbitrary, and unnecessary barriers to full participation in the workplace’ that are based on discrimination”).
 Barbuto v. Advantage Sales and Marketing, LLC, 477 Mass. 456 (2017) (employee use of medical marijuana is not facially unreasonable as a reasonable accommodation).
 Yee v. Massachusetts State Police, 481 Mass. 290 (2019) (where there are material differences between two positions in the opportunity to earn compensation, or in the terms, conditions, or privileges of employment, the failure to grant a lateral transfer to the preferred position may constitute an adverse employment action under G.L. c. 151B).
 2018 MCAD Annual Report, p. 11 (Commission counsel were assigned 46% of these cases in 2018).
 804 C.M.R. § 1.18(1)(a).
 804 C.M.R. § 1.20(3).
 See A. Colvin, Economic Policy Institute (EPI), “The Growing Use of Mandatory Arbitration” 1-2, 4 (Sept. 27, 2017).
In Diatchenko v. District Attorney for the Suffolk District & Others, 466 Mass. 655 (2013), the Supreme Judicial Court invalidated the statutory provisions mandating life without the possibility of parole for juveniles convicted of first degree murder. The Diatchenko Court adopted the U.S. Supreme Court’s decision in Miller v. Alabama, 132 S.Ct. 2455, 2460 (2012), which required consideration of a juvenile’s “lessened culpability” and “greater capacity for change.” As a result of Diatchenko, sixty-one Massachusetts inmates became eligible for parole and entitled to parole hearings where they will be afforded “a meaningful opportunity to obtain release,” Diatchenko, 466 Mass. at 674, before the completion of their criminal sentence. This article provides guidance to practitioners appearing before the Parole Board for these and other life sentence hearings.
However laudable Diatchenko’s reform, it has collided with a countervailing pressure to tighten the standards for granting parole following the high-profile murder of a police officer committed by a parolee in 2010, and the subsequent public outcry which led to the resignation of five Parole Board members who had voted for his release. According to several studies, including by the Boston Bar Association and the Parole Board, once the data are corrected for high-profile offenses, recidivism rates are actually higher for persons who are released after serving a complete sentence than for those who are paroled. Proponents of parole attribute this difference to the supervision, programs, and assistance parolees receive after release to facilitate reintegration into society.
Reconciliation of the two viewpoints lies in the application of one of the primary goals of sentencing: rehabilitation. Commonwealth v. Goodwin, 414 Mass. 88 (1993). Parole offers a “carrot and stick” approach to achieving rehabilitation. The carrot, because parole can be granted at least in part based on an offender’s showing of rehabilitation, and the stick, because the Parole Board can place conditions on receiving parole, or rescind or revoke parole, based on failure to engage in programs, counseling, substance abuse treatment and a wide variety of other conditions. M.G.L. c. 127, § 5; 120 C.M.R. § 300.07. Importantly, offenders are not required to participate in treatment or educational opportunities offered during their incarceration, yet offenders often undertake such steps voluntarily with the goal of demonstrating rehabilitation and receiving parole. Similarly, conditions of parole and the creation of a release plan cannot be mandated except for those offenders subject to parole. Parole can thus be accurately described as both evidence of rehabilitation and a means of effecting the sentencing goal of rehabilitation. By extension, the best advice to attorneys representing either parolees or the Commonwealth in life sentence parole hearings is to focus on presenting a cohesive narrative that focuses on rehabilitation. The facts of the offense and an individual’s criminal history have already been established, but an attorney can situate those facts within a narrative arc of the offender’s development and future goals.
The Board must consider two factors in each parole decision: (1) the reasonable probability that the individual would not violate the law if released, and (2) the compatibility of release on parole with the welfare of society. Parole may not be granted “merely as a reward for good institutional conduct.” M.G.L. c. 127, § 130; 120 C.M.R. § 300.04. The Parole Board may consider a variety of evidence in its decision, including: prior criminal record; pending cases; the nature and circumstances of the offense; recommendations from parole staff; statements from victims or their family members; physical or psychological examinations; information the inmate provides, including letters of support and a parole release plan; information the District Attorney’s Office provides; and institutional behavior. 120 C.M.R. § 300.05
A typical hearing begins with an opening statement by the offender or his counsel, followed by questioning of the offender by each Board member. The offender may present testimony from supporters, including family members, employers, or experts (such as mental health experts), each of whom may be questioned by the Board. After the offender’s presentation, those opposing parole, including the victim or family members of the victim, may speak or present counter evidence. The offender’s counsel may present closing arguments, and the Commonwealth may also present a closing argument or position statement.
The Board’s published Guidelines for Life Sentence Decisions should serve as the framework for constructing argument and applying the evidence listed above. The Guidelines specify three questions to be addressed by the Board at each hearing:
1) Has the inmate’s period of incarceration been of sufficient length to adequately protect the public, punish him for his conduct, deter others, and allow for rehabilitation?
2) Is the inmate rehabilitated?
3) Are there reasons to conclude that the inmate will live outside prison as a sober, law-abiding, employed, productive person who is making positive contributions to his family and his community?
The key issues underlying each question are fully outlined in the Guidelines and fall into three main areas of inquiry: the offender’s past, his institutional behavior, and his action plan upon release.
In addition to understanding the facts and circumstances of the crime, the Board will ask if the individual has taken responsibility for and appreciates his role in the crime, including the impact it had on any victims. Has the offender’s story has changed over time and is the offender only acknowledging his behavior for the purpose of gaining parole? In that regard, assess if post-trial litigation can fit into a narrative of eschewing responsibility, or instead protecting a valuable substantive or procedural right. What is the criminal history beyond the offense of incarceration and does it reveal a pattern of violent behavior or crimes committed against particularly vulnerable victims (such as children or the elderly)? Has the offender had past defaults, bail revocations, or other factors which may indicate difficulty complying with conditions of parole?
An offender’s personal circumstances are also important, but can be a double-edged sword: they can serve as mitigating or aggravating factors depending on how they have been addressed. Does the offender recognize the role those circumstances may have played in the offense or how they may impact his life upon parole? Has he specifically tailored his rehabilitative efforts to areas of substance abuse, childhood trauma, or other relevant factors? Similarly, if the offender has struggled with mental health issues, have those issues led to previous commitments, and have they been adequately treated?
The Board considers two main areas of institutional behavior: first, the offender’s disciplinary record; and, second, how he has used his time in educational or other institutional activities. What is the total number of infractions received and what is the trend? Did infractions involve violence or contraband? Was the individual the instigator? What was the reason for any transfers within the Department of Correction? Did the offender use his time to enroll, regularly attend, and complete programs, or has he attended only sporadically or claimed he was unable to attend? How has he shown personal reflection and dedication to self-improvement? Has he achieved educational or vocational goals? Has he taken leadership positions or consistently worked during his incarceration? Has he been committed to any religion, vocation, organization, or family during his incarceration that will continue following his release? What efforts has he made to address the Board’s concerns since any previous hearing and denial?
Finally, the Board considers the offender’s plan for life after release: does the offender have an adequate support network, including a place to live and work, treatment for ongoing issues, and persons who are committed to his success? Be ready to show that these issues have been well thought out and not hastily thrown together. Has the defendant been pre-approved for housing or programs? Does he have an employer willing to offer a job? Are there family members or religious supporters aware of the transitional difficulties he will face and willing and able to shoulder the potential emotional and financial impact? Any testimony should focus on these issues and evidence of rehabilitation. Avoid discussion about personal hardship due to incarceration or any perceived harm to the offender because of the conviction.
There are steps counsel may take to try to assuage any Board concerns arising during the hearing. With permission, supplement the record following the hearing. This can be particularly useful to address questions regarding the parole release plan and provide conditional acceptance to programs, housing, or employment opportunities. The Board may be inclined to grant parole with pre-conditions and transition periods rather than deny parole with recommended steps an inmate take before his next review hearing. After listening carefully to the Board’s questions and testimony provided, use closing argument to address any trouble areas or discrepancies between what emerged at the hearing with the written materials provided to the Board.
Hearings mandated by Diatchenko began in May 2014 and have so far resulted in the parole of the first three juvenile offenders considered. Notwithstanding these recent decisions, the seriousness of life sentence offenses and the Board’s stated goal of achieving fairness and consistency across similarly situated offenders suggests that parole will not be granted often on a first review, even where an offender has taken responsibility for his actions and demonstrated significant rehabilitation. The three juvenile offenders had served twenty, eighteen, and twenty-two years, respectively, where they are now eligible for parole after serving fifteen years. The Board also required each of the paroled juvenile offenders to complete additional programs prior to release after one year in a lower security facility.
Overall, Parole Board statistics show that parole was granted to 21% of offenders serving life sentences (including for crimes other than first degree murder) who were over 18 years old on the date of offense, compared with 53% of those who were under 18 years old on the date of the offense. This suggests that the Board is seriously weighing the role of youth in both the commission of the offense and rehabilitation, as required by the Supreme Judicial Court.
Crystal L. Lyons is an Assistant District Attorney in the Appeals & Training Bureau of the Middlesex District Attorney’s Office, and a member of the BBJ Board of Editors. She clerked for the Ninth Circuit Court of Appeals and graduated Order of the Coif from UCLA School of Law. The views expressed in this article are those of the author solely and do not reflect in any way the views or policies of the Middlesex District Attorney’s Office. The author is indebted to Stephen Hoctor for creating an earlier version of an article on this subject.
by Professor Daniel Kanstroom
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.