Criminal Defense

Clemency in Massachusetts and its Potential for Revitalization

Published on: January 27, 2023 | by Lucie Gulino

Massachusetts has a fraught history with clemency and has strongly disfavored this post-conviction remedy for decades. Last year, however, there was a slight uptick in the number of clemency grants: Governor Charles Baker approved 3 commutations for Thomas Koonce, William Allen, and Ramadan Shabazz and 10 pardons.

Article 73 of the Amendments to the Constitution of the Commonwealth vests clemency power in the governor. There are two forms of clemency: commutation and pardon. A commutation is a reduction in sentence, which means the convicted individual faces a shorter period of incarceration than originally mandated. A pardon forgives the underlying offense, which means the individual’s conviction is erased. Although clemency power technically vests in the governor, there are multiple entities involved in the decision-making process. CONTINUE READING ›

In Commonwealth v. Karen K., the Supreme Judicial Court Approves the Patfrisk of a Black Teenager, But Offers Hints for Future Challenges

Published on: January 10, 2023 | by Tom Miller

The use of “patfrisk” or “stop-and-frisk” techniques by police is a serious—and, in some communities, alarmingly frequent—intrusion on personal liberty and dignity. In Commonwealth v. Karen K., the Massachusetts Supreme Judicial Court (SJC) considered the case of a sixteen-year-old African-American girl stopped and patfrisked by Boston police, who discovered a loaded firearm in the waistband of her pants. The case provided an opportunity for the Commonwealth’s highest court to revisit some of the same highly charged questions of constitutional law at play in their controversial and fractured 2021 decision in Commonwealth v. Sweeting-Bailey, which we previously discussed on this blog.

Back to School Basics: What To Do When the (Campus) Police Come Calling

Published on: August 31, 2022 | by David Duncan

Colleges and universities are starting their fall semesters, and orientation for incoming freshmen is well underway at many schools. One area that is not likely to be covered in orientation is students’ rights in encounters with police. While most students go through their entire college career without interacting with police, if you do, you should know what rights you have. This blog will discuss those rights in the context that is the most likely one where students might interact with police (sexual misconduct matters), but the rights you have apply to any interactions, on or off campus. You should know those rights. Just as important, you should know the limits of those rights. CONTINUE READING ›

Proposed legislation would increase opportunities for juvenile diversion

Published on: July 22, 2022 | by Jennifer M. Herrmann

The majority of adolescents in Massachusetts, at some point, engage in behaviors that could subject them to delinquency proceedings in Juvenile Court. Although most of those adolescents are unlikely to engage in that type of behavior more than once or twice, even those who are otherwise not at risk for reoffending are significantly more likely to reoffend once they are arrested, charged, and processed in juvenile court.

Concepcion v. United States Affirms District Court’s Broad Discretion in Deciding Criminal Sentences

Published on: June 30, 2022 | by David Duncan

In Concepcion v. United States, the U.S. Supreme Court continued its support for sentencing discretion for district court judges. In this case, the issue was how much discretion a sentencing judge has when resentencing a defendant pursuant to the First Step Act, a substantial criminal justice reform act that Congress passed in 2018. Among its provisions is one allowing for resentencing of persons convicted before 2010 for distribution of crack cocaine who had been ineligible for resentencing when Congress in 2010 revised downward the penalties for crack cocaine (in the so-called Fair Sentencing Act). The quantities that triggered mandatory minimum sentences were reduced substantially, and the guidelines were amended to reflect those reductions.

Mr. Concepcion had been given a 19-year sentence in 2009 for selling 13.8 grams of crack. Because he was a “career offender,” meaning that he had a number of prior convictions for “crimes of violence” or drug distribution, his guideline sentencing range was not affected by the quantity reductions, and so he was not eligible for resentencing when the crack sentencing changes took effect in 2010. CONTINUE READING ›

MA Appeals Court: Restraining Order Hearings Must Be Fair to Both Parties

Published on: April 4, 2022 | by Ruth O'Meara-Costello

Restraining orders are an essential tool that Massachusetts law makes available to help victims of abuse or harassment stay safe. Abuse prevention orders and harassment prevention orders (the two types of civil restraining orders available in Massachusetts) allow courts to impose restrictions on abuse and on contact. Some judges are very quick to grant requests for orders, sometimes after giving defendants scant opportunity to challenge a plaintiff’s claims. Seeking to prevent violence and other serious harm is a praiseworthy motive. But restraining orders carry significant consequences and their erroneous issuance can also cause real harm. Recently the Massachusetts Appeals Court, in Idris I. v. Hazel H., reversed and vacated a restraining order because the trial court failed to give the defendant a fair hearing before issuing the order. CONTINUE READING ›

Commonwealth v. Sweeting-Bailey, a Backwards Step for Racial Justice

Published on: January 10, 2022 | by Jenna A. Agatep

“This court is very concerned about the disparate impact automobile stops have on persons of color and the national statistics on the fatalities suffered by such communities at the hands of police officers,” wrote Justice Cypher in a fractured plurality opinion for the Supreme Judicial Court in Commonwealth v. Sweeting-Bailey last month. Despite this acknowledgment, the majority of the SJC justices agreed to grant police officers power to continue targeting communities of color and low-income neighborhoods as it confirms that police officers can consider subjective factors in deciding whether to search a passenger in a stopped car.

Sex, Violence, and Consent in Massachusetts

Published on: October 28, 2021 | by Ruth O'Meara-Costello

In many contexts, rules and codes of conduct have moved from evaluating the lawfulness or permissibility of sex based upon the presence or absence of force to instead evaluating whether the sex happened with or without consent. This is particularly true on college campuses, almost all of which have a definition of consent—usually affirmative or effective consent—that sex must meet in order to be allowed under campus policies. Many people—and particularly college-age students who have been trained on affirmative consent policies—think almost exclusively in terms of consent when considering whether sex is lawful or permissible. CONTINUE READING ›

The Fine Line Between “Plain View” and Privacy Invasion: Commonwealth v. Yusuf

Published on: September 20, 2021 | by Jenna A. Agatep

The use of body-worn cameras by the Boston Police Department has sparked controversy since its pilot program in 2016 and its official implementation in 2019. While the City and the Police Department have marked this move as an effort to be more transparent with the community, citizens claim that such a goal of transparency cannot be achieved within a broken system. Boston Police Department has equipped more than 1,000 officers over the city with body cameras, yet there have been minimal compliance checks and investigations into the misuse of these cameras and footage. Instead, there are a handful of loopholes that permit officers to use the footage at their discretion, putting civilians’ lives at risk for privacy invasion. To further complicate the limitations police officers have in using their body-worn camera footage, the official Body Worn Camera Policy of the Boston Police Department contains ambiguous and few rules regarding the improper use of footage. In Sec. 4.2 of Rule 405, the department enumerates five improper uses of body-worn camera footage; none of which emphasizes a civilian’s privacy nor prohibits the use of the footage for other cases than the one from which the footage originated.

Supreme Judicial Court Holds That the Parental-Child Privilege Does not Preclude Parents from Testifying as Defense Witnesses in Criminal Cases Brought Against Their Minor Children

Published on: July 22, 2021 | by David Russcol

As part of the criminal justice reform bill in 2018, the Massachusetts legislature passed a statute creating a limited parent-child privilege so that minor children who may be in legal trouble can seek advice from their parents without having to worry that their parents could be witnesses against them in a criminal case. Similar protections exist for spouses, who cannot be compelled to testify against one another. Although the statute does not protect adult children who speak with their parents, it fills an important gap for juveniles, particularly since they have a right to speak with an “interested adult” before being interrogated by police. CONTINUE READING ›