News + Insights from the Legal Team at Zalkind Duncan & Bernstein

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Over the last several years, the Massachusetts criminal justice system has been rocked by misconduct in state-run drug labs. First, and so far most significant, Annie Dookhan, a chemist at the Hinton State Lab in Jamaica Plain, tainted over 42,000 state convictions by employing several different scientific shortcuts to boost her efficiency and productivity. Rather than meticulously testing each sample to determine whether or not it contained cocaine, heroin, or other suspected drugs, her practices over several years included “dry-labbing,” or combining samples from different cases and testing them all at once, then recording the results under each case; fabricating records that she tested and calibrated lab equipment as required by protocol, in order to save time; and contaminating samples that tested negative with drugs so that they would test positive. The Supreme Judicial Court has addressed cases involving Dookhan several times already. As if this were not disturbing enough, a second chemist at a different state lab, Sonja Farak, undermined the integrity of thousands of drug cases in Western Massachusetts over 8 years by using methamphetamine, cocaine, and a variety of other drugs while at work; stealing and consuming both standard comparison drug samples and drugs that were seized by police; and using lab equipment to manufacture crack cocaine. Between Dookhan and Farak, prosecutors have (presumably unknowingly) used fabricated or unreliable evidence to convict or induce guilty pleas from thousands of people in Massachusetts. CONTINUE READING ›

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Like that of many states, Massachusetts law provides for enhanced criminal penalties for specified drug offenses committed in close proximity to parks or schools. Defendants who commit such offenses in so-called “school zones,” which the statute defines as any location within 300 feet of a school of any kind, including any public or private accredited preschool or Head Start facility, or a “park zone,” defined as any location within 100 feet of a public park or playground, at any time of day except between the hours of midnight and 5 a.m., are subject to a mandatory two year sentence, on top of any punishment imposed for the underlying crime. The statute is explicitly clear that “lack of knowledge of school boundaries” is not a defense; a person who is found to have committed a drug offense within the stated distance from a school is subject to the enhanced penalty regardless of whether they knew of the school’s location or even of whether the school was easily recognizable as such (an issue with some preschools and Head Start facilities, which are often located inside larger buildings primarily devoted to other purposes.) As draconian as this law remains, it is actually an improvement on the version of the law in place until 2012, under which “school zones” included any location within 1,000 feet of a school, regardless of the time of day.

In its decision in Commonwealth v. Peterson, issued on January 3, 2017, the Supreme Judicial Court (“SJC”) set a limit on the statute’s application for the first time. In Peterson, the defendant was a passenger in a car with three other people. When the car stopped at a traffic light at an intersection near a public park, the police officers in the car behind it determined that its inspection sticker had expired. They pulled the car over shortly afterward, at a location that was no longer within one hundred feet of the park. The ultimate results of the stop were the discovery of drugs and a semi-automatic weapon, and the arrest of the defendant, who was charged with a number of crimes including a violation of the school zone statute.

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In my last blog post, I discussed some of the steps Massachusetts has taken in recent years to reform the state’s criminal justice system and the problems that remain in that system.  In this post, I will discuss some reforms that Massachusetts should enact in the next legislative session.

For starters, Massachusetts must abolish mandatory minimum sentencing for drug offenses once and for all.  Despite the liberal political leanings of many in state government, the state’s District Attorneys somehow remain staunchly opposed to any such reform.  According to the title of a 2015 letter in the Boston Globe signed by nine of the Commonwealth’s DAs: “Opponents of mandatory minimum sentencing fail to account for reality.”  That’s a bold choice of headline, particularly once you consider that those reality-ignoring opponents include Supreme Judicial Court Chief Justice Ralph Gants, who systematically tore apart the arguments in favor of mandatory minimums in a 2015 speech at UMass-Boston, as well as Catholic leaders from across the Commonwealth. CONTINUE READING ›

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At the federal level, efforts at criminal justice reform have been trapped in a legislative logjam.  Despite considerable bipartisan consensus on the subject – including the backing of the notorious Koch brothers, who fund Republican candidates across the country – no significant legislation has passed through the United States Congress.  That, despite the fact that the United States currently houses 2.2 million people in our prisons and jails.  That translates to an incarceration rate of 693 per 100,000 people – a rate far in excess of Iran, Zimbabwe, and Singapore.  A recent report by the Brennan Center for Justice concluded that 576,000 people who are currently incarcerated could be freed with little-to-no impact on public safety, at a savings of $20 billion annually.  According to the report, 364,000 prisoners could be subject to alternatives to incarceration – treatment, community service, or probation – while another 212,000 have already served lengthy prison terms and could be directly released into the community.

At the federal level, the only steps to remedy the effects of our draconian system have come from the executive branch.  Attorneys General Holder and Lynch have told their line prosecutors to pursue fewer mandatory minimum sentences, and Holder urged the U.S. Sentencing Commission to apply a recent reduction in drug sentences retroactively to reduce the sentences of thousands of those currently incarcerated.  In addition, President Obama has commuted the sentences of 1,176 prisoners and issued 148 pardons – far more than any other president in history.  But even those historic numbers are a mere drop in the proverbial bucket.  With a federal prison population of 190,058 inmates, Obama’s clemency numbers constitute about 0.6% of that group.  Those numbers will likely increase a bit before January 20th, but executive clemency is a poor substitute for true legislative reform. CONTINUE READING ›

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Earlier this month, my colleague blogged about concerns that a weaker federal Department of Education (DOE) in the Trump Administration would mean less protection against discrimination and harassment for minority students. Under Obama the DOE took strong, sometimes controversial, positions in the name of anti-discrimination, for example, issuing numerous guidance documents instructing schools on how to address sexual harassment and sexual assault, and interpreting Title IX to protect transgender students. In the views of its critics, DOE often went too far in issuing these rules, both because it circumvented the normal rule-making procedures for administrative agencies, and because in many instances its guidance letters seemed to directly conflict with the free speech and due process rights of students.

It seems safe to assume that sexual harassment prevention is not high on Trump’s priority list. During the presidential campaign videos surfaced of him discussing sexually assaulting women and more than a dozen women came forward to accuse him of having done just that, and his sons — who played key roles in his campaign — have both indicated that women who do not like being sexually harassed either should not work, or should find a different job. Given that fact, and his stated antipathy to the DOE, it seems quite likely that his administration will do an about-face on both the scope of the DOE’s work, and its positions on key title IX issues. But will the administration’s positions change anything on campus?

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In late November, a federal district court in Texas enjoined the Department of Labor from implementing and enforcing a new rule that would have made it more difficult for employers to claim that workers do not qualify for overtime pay.  But the Texas court may not have had the power to apply its order nationwide, and Massachusetts employees may still be able to collect overtime under the new rule.

Under the Federal Labor Standards Act, every employee must be paid a minimum hourly wage.  Employees are also entitled to overtime pay at one and a half times that rate for all hours worked above forty per week.  However, the statute exempts certain types of jobs from the requirement to pay overtime.  One of those exemptions is for any work done in a “bona fide executive, administrative, or professional capacity,” and is sometimes referred to as the “white collar exemption.” The statute grants the Department of Labor the authority to issue rules defining what exactly qualifies as a “white collar” job. Since 1940, the Department has defined the exemption, in part, by setting a minimum salary cap under which all workers must be paid overtime – in other words, anyone paid less than that set figure cannot qualify as an exempt “executive, administrative, or professional” employee.  In 2014, after extensive notice and comment from outside stakeholders, the Department of Labor raised the salary cap from $23,660 to $47,476.  The rule was set to go into effect on December 1, and experts estimated that more than 4 million additional workers would now qualify for overtime pay. CONTINUE READING ›

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Early one morning in 2013, Verissimo Tavares fled the Boston Police on his motor scooter, and in the process tossed away what turned out to be a gun.  He was charged and convicted in federal court of the crime of being a felon in possession of a firearm, and was sentenced to seven years, which was a “departure” from the recommended sentence of 10-12 ½ years that the federal sentencing guidelines prescribed.

Had Mr. Tavares been a newcomer to the criminal justice system, the guidelines would have produced a recommended sentencing range of between 3 and 4 years.  His history, and in particular his previous convictions of “crimes of violence” doubled his sentence and could, without the departure, have tripled it.  In particular, Mr. Tavares had previous convictions for resisting arrest and for assault and battery with a dangerous weapon, and both of those convictions were considered “crimes of violence” by the sentencing judge, with the result that his sentencing range skyrocketed.

Not surprisingly, Mr. Tavares appealed, and the First Circuit took up, for the umpteenth time, the question of what constitutes a “crime of violence” with a substantial impact on how much time a convicted defendant will have to serve. CONTINUE READING ›

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Since the election, there has been a spike in racist harassment and hate crimes across the county directed at minorities and immigrants.  As reflected in data collected by the Southern Poverty Law Center (SPLC), nearly 900 hate incidents were reported in the ten days following November 8.  The incidents have ranged from graffiti of swastikas and nooses, rampant use of racial slurs, verbal denigration of minorities and immigrants, and physical harassment, including assaults or attempted assaults.  These incidents have been most prevalent at K-12 schools and college campuses and reflect a disturbing deterioration of the educational environment in our schools.  These are only the reported incidents to SPLC, a small non-profit located in Alabama; it is most certainly only a fraction of all incidents since the election.  While there are sometimes competing concerns between the free speech rights of students and the protection of minority students, the incidents that have been reported thus far include racist threats of violence that goes beyond free speech rights.  There is a real concern that the failure to adequately respond and remedy this behavior during students’ formative years in middle and high school will normalize it and cause further spillover onto college campuses.

Minority and immigrant students who are at colleges and universities across the country may be understandably anxious about whether they will have protection against such harassment under the new presidential administration.  If campaign rhetoric is to be believed, the Trump Administration intends to gut the Department of Education (DOE).  In addition to its responsibilities administering federal funding and enforcing federal education laws, the DOE is the agency charged with enforcing civil rights laws that apply to K-12 schools and colleges, which includes Title VI, the law that protects students at federally-funded schools from discrimination on the basis of race or national origin.

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We have previously covered on the blog the implications of Massachusetts initiatives regarding marijuana and the interaction between Federal and state drug laws. In 2008, voters decriminalized the possession of an ounce of marijuana under state law. In 2013, voters set up a system for the medical use of marijuana in Massachusetts. Possession, distribution, or use of marijuana in any form remains illegal under Federal law, and the Federal Drug Enforcement Administration recently reaffirmed the placement of marijuana on Schedule I, meaning that it has “no currently accepted medical use,” a “high potential for abuse,” and a “lack of accepted safety for [its] use.” However, in 2014 Congress enacted into law an Obama administration policy permitting states to implement medical marijuana laws, giving a subtle positive signal at least for medicinal use of marijuana.

This week, Massachusetts voters again gave the green light to marijuana reform in the form of Question 4. Question 4 is long and complex, but we can summarize some of its most important provisions. Under Question 4, starting on December 15, 2016, it will no longer be illegal under Massachusetts state law for anyone 21 years old or older to possess an ounce or less of marijuana, or up to 5 grams of marijuana concentrate. Within one’s own home, an adult over 21 is permitted to possess up to 10 ounces of marijuana, grow up to 6 marijuana plants (up to a total of 12 plants at a time for two or more people), and possess any marijuana grown on the premises. Individuals committing these acts are protected against any criminal or civil penalties under state law; by contrast under current state law possession of marijuana without appropriate medical documentation is at least a civil infraction with a $100 fine, and cultivation or possession of more than an ounce is criminal.

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In June, Supreme Court Justice Sonia Sotomayor attracted attention for her dissent in Utah v. Strieff.  In that case – which held that a court need not suppress the fruits of a suspicionless stop if the individual has a pre-existing warrant for their arrest – Sotomayor wrote that the Court’s opinion would encourage more baseless stops and thus “risk treating members of our communities as second-class citizens.”  Setting aside legalese, Sotomayor cited the authors W.E.B. Du Bois, James Baldwin, and Ta-Nehisi Coates, and discussed the humiliation that people of color experience due to their disproportionate targeting by the criminal justice system.  She ended her opinion with the following passage:

We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner’s Canary 274-283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but. CONTINUE READING ›

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