Criminal Justice Reform: What Happened?

The Massachusetts House of Representatives has passed its own criminal justice reform bill. What happens now? In short, negotiations. The Senate and House versions have some substantive differences that need to be negotiated and agreed upon in a conference committee. That process will likely run into next year. We can expect some very positive developments at the end of the process: expanded expungement for some criminal records, repeal of mandatory minimum sentences for some drug crimes, and the reform of the use of solitary confinement or segregation. These are all data-driven "smart on crime" reforms that are likely to benefit society as a whole, not just offenders. 

Massachusetts Criminal Justice Reform: What’s in the Bill?

The Massachusetts Senate passed a major criminal justice reform bill on October 27, 2017 and the legislation is now before our House of Representatives. Broadly speaking, the Senate bill represents a victory for the “smart on crime” approach that has swept state legislatures in recent years, even in the most conservative states. The fact is that you cannot arrest or prosecute your way out of social problems. The “tough on crime” approach has failed, proving instead to be disproportionate, destroying poor communities and communities of color, and seriously burdening taxpayers with the high fiscal and social cost of unnecessary incarceration.

Title IX Sexual Assault Investigation Policy Changes

Recent Department of Education policy changes under Title IX require that students accused of sexual misconduct be informed of the allegations in writing. They also allow for a higher standard of proof such as clear and convincing evidence, do not require that investigations be completed in 60 days, and allow for mediation. While all of these changes might seem obvious and non-controversial to those familiar with basic notions of due process in the American criminal justice system, they are important steps forward in the evolution of disciplinary procedures designed to adjudicate sexual assault allegations fairly and reliably on college campuses.

Commonwealth v. Timothy Brown: Felony Murder Limited

On September 20, 2017, the Supreme Judicial Court, in a four-judge concurring opinion in Commonwealth v. Timothy Brown, abolished the current Massachusetts doctrine of felony murder and replaced it with a new doctrine that requires the prosecution to prove actual malice. As Attorney Nathanson commented in the Boston Globe (here or here), felony murder law was "the ultimate technicality" because murder requires proof of malice, but felony murder replaced that with simply the intent to commit a felony. That rule did violence to some of our most basic principles of criminal justice: (a) that the government must prove all the elements of the crime, including intent, (b) that the defendant is presumed innocent, rather than essentially presuming his guilt of murder from his commission of some other offense, and (c) most importantly punishment - here, life imprisonment without parole - must fit the defendant's culpability or blameworthiness, rather than punishing him for unintended consequences from accidents or out-of-control compatriots.

SJC Should Outlaw Traffic Stops That Are Pretexts

Attorney Malm convinced the Supreme Judicial Court to take one of his cases in which he raised the important issue of whether or how police authority should be limited when a traffic stop for an observed civil traffic infraction is clearly a pretext to engage in an investigation of other activity. The Court has asked for amicus briefs on the issue. We hope to have supporting briefs from important civil rights and professional groups. Pretextual traffic stops enable racial profiling, and undermine public respect for the rule of law. The briefs and the Court's amicus invitation can be found here.

Trial, Juvenile, and SORB Representation

Wood & Nathanson represents individuals in many areas related to criminal charges. Recently Wood & Nathanson attorneys became members of the Committee for Public Counsel Services panels for trial representation, juvenile delinquency appeals, and sex offender registry board representation. Attorney Shih will represent adult criminal defendants in Suffolk County trial courts, Attorney Ward will represent people before the SORB, and Attorney Jellison will represent juveniles in appeals from delinquency trials.

Abolish Felony Murder

On April 18, 2017, Attorney Wood and a team from Foley Hoag, LLP filed an amicus brief in the Supreme Judicial Court arguing for the abolition of the felony murder rule. The rule, which holds defendants strictly liable for any death that occurs as a result of a felony they commit, divorces moral culpability from criminal liability. The result in Massachusetts can be life without parole for unintended or accidental killings. The rule is disproportionate, unfair, and should be abandoned. Read the brief here.

Innocence Network Conference

On March 23-26, Attorney Wood accompanied his client Nat Cosenza to the 2017 National Innocence Network Conference in San Diego. The conference gave exonerees a chance to connect to one another for support and to share their experiences so that attorneys and others in the innocence community could better understand how wrongful convictions occur, how to prevent them, and the challenges that exonerees face even after regaining their freedom. An article about Nat's experience at the conference can be found here.

Resources for Research

Below you will find links to some great (and free) resources for creative and effective legal writing.

First, always use your public library! Most provide free access to excellent online academic databases including Academic OneFile.

Scientific and medical information can be found at:  Pubmed  (https://www.ncbi.nlm.nih.gov/pubmed/advanced) and Pubmed Central (full text) (https://www.ncbi.nlm.nih.gov/pmc/).

Sign up for notifications regarding the latest law-related neuroscience publications here: http://www.lawneuro.org/listserv.php.

Keep abreast of current and developing issues at the Supreme Court using Cert Pool (http://certpool.com) and Seton Hall's law review focusing on splits of opinion among the federal courts of appeal (http://scholarship.shu.edu/circuit_review/).

Great resources for full text historical legal writings and original documents include The Internet Archive (https://archive.org/details/texts), Project Gutenberg (https://www.gutenberg.org) and Yale University's Avalon Project (http://avalon.law.yale.edu/default.asp). Others include:

And great general purpose research tools include:

Public Trial Amicus Brief

On March 6, 2017, Attorney Wood and a team of attorneys from Ropes & Gray filed a brief in the Supreme Court on behalf of the Massachusetts Association of Criminal Defense Lawyers in Weaver v. Massachusetts, No. 16-240. They argue that the Court should not shy away from vindicating the treasured right to a public trial. The government's argument that vindicating the right to a public trial would "open up the floodgates" is both factually incorrect and diverts attention from the real issue: whether our Constitution entitles everyone to a public trial. Read the brief here.

Eyewitness Evidence, Innocence, and a New Life

On February 15, 2017, Attorney Wood and his client Nat Cosenza presented a joint lecture for the Committee for Public Counsel Services on the challenges of presenting a new trial motion based on expert eyewitness identification testimony rejected at trial and on direct appeal but later accepted as accurate information that jurors should have. Nat spoke about the factors that lead to a successful transition from a lengthy period of incarceration to a life of liberty.

Amicus Brief: Particularity Required in Cell Phone Search Warrants

Attorney Wood and a team from Goodwin Procter drafted an amicus brief in Commonwealth v. Keown on behalf of the Massachusetts Association of Criminal Defense Lawyers advancing the cutting edge argument that, when seeking a warrant to search a cell phone, law enforcement must comply with the Fourth Amendment's requirement to "particularly describ[e] the place to be searched, and the persons or things to be seized." Police should not have carte blanche to sift through people's digital lives. They must limit their searches to inquiries reasonably designed to discover specific evidence of a particular crime. Joining the brief were the ACLU, Electronic Frontier Foundation, the Center for Democracy and Technology, and the Committee for Public Counsel Services. Read the brief on our website here or on the Supreme Judicial Court's website here.