Archive for February 2013
By Cookie Avrin and Estelle Regolsky
Having become friends years earlier when both were practicing immigration law and living in Roslindale, Estelle Regolsky and Cookie Avrin decided to establish their own firm, Avrin & Regolsky, in December 1990 in Jamaica Plain. Prior to their partnership Estelle was with Fron, Ross and Berkower (now known as Ross, Silverman LLP) and Cookie was in a solo practice after working for a few years in Harvey Kaplan’s office. As with many small practices Cookie and Estelle especially value the fact that each can practice law her own way and run their business however they choose. Although their practices are quite different, Cookie and Estelle have enjoyed the mutual support and the opportunity of always having someone to talk to about a difficult case, a problematic client, or a thorny legal issue. Although not active participants, Estelle and Cookie are long-time supporters of the Guild and the phenomenal work the organization does.
Estelle concentrates in the practice of immigration law. She represents individuals seeking temporary or permanent status through employment, family relationship, political asylum or other means and businesses seeking visas for potential employees as well as permanent residents seeking citizenship. Clients are represented before U.S. Citizenship and Immigration Services at local District Offices and at the various regional Service Centers. Clients are also represented in removal or deportation proceedings before the Executive Office for Immigration Review and before the Board of Immigration Appeals for appeals.
Cookie concentrates in residential real estate law. She represents buyers and sellers in all aspects of their purchases and sales including negotiating purchase and sale agreements, representation at closing, assisting sellers in resolving title issues and preparing co-ownership agreements. She represents lenders and performs real estate closings. Cookie also handles condominium conversions and represents condominium associations for review and revisions of condominium documents. Additionally, she offers simple planning for small estates preparing wills, revocable trusts, health care proxies and powers of attorney.
When residential real estate cases first made their way to her, Cookie was surprised at how much she liked that area of practice. Its intensity, brevity and inevitable dynamics were a good fit for her. Plus her client base has always been heavily left-leaning which has given her many opportunities to stay current in “what is happening out there”. She is happy to count many Guild members as real estate clients.
Estelle has been a member of the American Immigration Lawyers Association (AILA) since 1985. She served on the Executive Board of the New England Chapter of AILA for six years and was Chapter Chair in 2002-2003. She served as AILA N.E. liaison to Immigration & Customs Enforcement (ICE) from 2003 to 2007. Estelle is a regular volunteer attorney for immigration clinics at the Irish International Immigrant Center in Boston. She has been a frequent panelist at continuing education seminars involving immigration and naturalization for MCLE and other organizations. For many years she has been an AILA mentor to fellow attorneys in the family immigration area. She speaks French and Spanish. Estelle is a 1983 graduate of Northeastern University School of Law. She lives in Roslindale.
Cookie is a member of the Massachusetts Bar Association, the Real Estate Bar Association for Massachusetts and is a title agent for national title insurance companies. She is a 1982 graduate of Northeastern University School of Law. She lives in Brookline.
Cookie Avrin and Estelle Regolsky are law partners with Avrin & Regolsky in Jamaica Plain since 1990. They practice immigration and real estate laws.
By Bonnie Tenneriello
I have been working with Prisoners Legal Services for almost 10 years. Prisons are an isolated, sometimes horrifying, and unpredictable world. My clients have received me in the long-term segregation unit, with their legs shackled to the floor and their hands cuffed to waist-chains, after having spent months and years in solitary confinement. Many of these guys have told me about the panic and anxiety that comes from spending years in a box, but they usually pull themselves together to see me.
I’ve visited with women in prison and heard about the indignities of strip searches and male officers checking in shower rooms. I’ve toured many prisons, getting beyond the visiting room to see the yard, “chow hall,” cell blocks, and the “mental health watch” cells where people are often kept with only a “security smock” and no property until they’re willing to say they won’t hurt themselves. I recently met a 17 year old boy in an adult jail so overcrowded that people sleep on plastic “boats” on the floor. (His crime: drinking, taking his mom’s car, and getting pulled over at 2 am.) My clients have told me some of the informal rules that govern prison life, how you make home-brew, etcetera. And they’ve shared a laugh sometimes, even in solitary.
It is not surprising that prisoners are, on the whole, appreciative and courteous clients. They live in a system that humiliates them in ways large and small, from strip searches to hostile corrections officers (though not all are). So a little respect goes a long way. And after all, our legal help is free. What has surprised me is, first, how good some of them can be as partners in litigation. Having a sharp mind doesn’t disqualify one from prison, and those with long sentences have often had time to get to know case law in certain areas very well. Many people with mental illness and cognitive limitations are swept into prisons, and learning about the particular suffering of these folks has been revealing; while some are seriously disabled, on the whole these clients are also good partners in advocacy.
The other thing that has surprised me is my clients’ gratitude for very small acts of assistance, and their understanding when PLS cannot help them with a problem that, to the prisoner, is quite serious. I am surprised how, after I apologize for being unable to represent a prisoner at a disciplinary hearing or help him get lost property returned, he will tell me he understands and thank me for the pro-se materials we send out.
PLS has a limited staff and cannot address all of the problems faced by prisoners, so we choose litigation priorities, including prison conditions, staff assaults, denial of medical and mental health care and improper segregation. Right now I’m working to address horrifying overcrowding on one jail, to stop lengthy and indefinite solitary confinement, and to get the Department of Telecommuni-cations and Cable to regulate rapacious telephone rates that stop prisoners from talking with their loved ones, who often live far away. We also try to achieve change through legislation – we’re working with State Rep. Liz Malia and State Senator Jamie Eldridge on legislation to limit solitary confinement – and through public advocacy, teaming with other groups and individuals who share our goals.
Nowadays female and male lawyers all struggle with work-life balance, and it matters greatly that my workplace is both supportive and family-friendly. People have chosen to work here because of their commitment to serving prisoners. They last here because we support each other. Whether it’s giving a hand with work on a deadline, venting frustration over a client’s difficulties, or sharing an irreverent sense of humor, the staff really works together. Our director is a woman who encourages us by example to show compassion to each and every client — but also to balance our lives with family, friends and outside fun. We’ve got a litigation director – a man – who works hard to guide the lawyers and make us look good. Secretaries, paralegals and lawyers are all invested equally in the work. Leadership qualities that we think of as traditionally female — nurturing staff, encouraging collaboration, and sharing credit – are not just shown by women, and I’ve learned from my experience at PLS how effective such leadership can be.
Bonnie Tenneriello has been a staff attorney at Prisoners Legal Services for over 10 years. In 2000, she was elected to the NLG Board of Directors and served until last year.
By Jerry Lembcke
I’m remembering the 1980s when work-place limitations on allowable weights for women to lift were being challenged. Men were allowed to lift heavier weights making it legal for employers to prefer men over women in hirings for certain jobs. Citing the discrimination in those practices, some feminists favored raising the weight limits for women; some labor activists, meanwhile, said the standard for women was actually safer for everyone so equality should be achieved by making it the standard for all, men and women.
Mindful of that history, the recent debate over allowing women in combat has caught my ear. In late January the Pentagon announced that it would lift the ban on women serving in combat units. The outgoing Secretary of Defense, Leon Panetta will formally receive the proposal in May and move it on to Congress which has the authority to finalize the change within 30 days. Implementation of the changes is expected to take up to three years.
Unlike the disagreements over workplace safety issues 30 or so years ago, the opening of combat roles to women is being widely applauded. Polls show men and women equally supportive of the change by as high as 76%. Particularly interesting to me is the absence of an anti-war voice comparable to that of labor on the workplace issue: where is the American pacifist voice contending that the standard for women should be the standard for all – no one should be in combat?
The no-combat position would be politically impractical, of course, unwise even in the current geopolitical environment. But a strategical use of the issue, just as some union members used concerns about weight limits in the 1980s, could leverage more serious thinking about the militarization of our culture and economy, the consequences of which we see manifested in the national gun fetish and the federal budget crisis.
It would be easy enough, for example, to argue that all soldiers under the age of 21 should, like women, be exempt from combat. Whereas the combat exception for women is based on physical qualifications, evidence that the still-developing minds and emotions of young adults, men and women, make them especially vulnerable to the stresses and traumas of war provides a basis upon which to keep them away from combat. Such a policy would not only not deprive young recruits of the income, job-training opportunities, and post-service benefits like education—that, for some advocates, justify military service—it would likely channel them into military occupational specialties that transfer more readily to future civilian employment.
The age limitations on combat experience would protect teenagers from military recruiters who prey particularly on young men’s machismo and fantasies of war-front valor. Those youthful expectations of prideful martial accomplishment are fed by film and veteran folklore, but they are seldom met with satisfaction by real-world military experience—a fact that is a likely contributor to the despondency of returnees from the new wars that is sometimes lumped in with other ailments for PTSD diagnoses. The average age of American war-dead in Iraq and Afghanistan is about 26, far higher than the mythical image of “our kids” dying in war, but it is still sickening that anyone under the legal age for drinking in most states is lost in battle. The demand for a wider combat-exemption policy, leveraged by the non-combat standing of women, should be a priority for progressive reform movements.
Setting an age standard for combat eligibility may be disputatious but a standard of parental-status should be a no-brainer. Mothers and fathers with dependent-aged children should, of course, be welcomed into the military for whatever occupational, career, and economic benefits they may anticipate. But the interests of their children, and ultimately the society, should be protected by legislation keeping parents out of harm’s way.
Legislation to that effect could easily be extended to cover all family members with dependents, be they young, old, or disabled. Exemptions like that for the “sole surviving son” that enabled farm families to keep a young breadwinner at home during World War I might provide a model for new legislation.
The lack of imagination coming from the liberal anti-war community on this issue is concerning. The clamor for equal opportunity to kill and be killed or even to be in closer proximity to battleground mayhem—in the name of women’s rights or gender equality—misappropriates those progressive traditions, redirecting their promise to elevate humankind onto another path, one leveling us all at a lower level. But there is still time to rethink where the demand for women in combat takes us. Let’s talk about this.
Jerry Lembcke is Associate Professor of Sociology at College of the Holy Cross in Worcester, MA. He is a Vietnam Veteran.
By Susan Akram
I have been practicing public interest immigration law for 30 years, and teaching in the fields of immigration and refugee law at Boston University Law School for 20. Over the course of my career, there have been many changes in policy and practice in the field, affecting the way we practice and advocate for our clients. At the beginning of my career, in the mid-1980’s, the Refugee Act was newly-passed, and few lawyers had developed an expertise in it. I was recruited from a private law firm to take on an asylum case pro bono by the San Francisco Bar Association, and my first case was a Guatemalan teenage boy, one of about 600,000 Central American refugees who had fled the brutal civil wars in El Salvador and Guatemala to the U.S. Ironically, in light of the passage of the Refugee Act, the grant rates for Central American refugees was between .5 and 3% The learning curve for that first case was steep, but I realized while working on it that I had found my calling, and shortly afterwards left private practice to do public interest refugee law. I never looked back.
When I moved to Boston, I joined Iris Gomez and Nancy Kelly in the immigration unit at Greater Boston Legal Services. About a year later, one of the largest immigration workplaces raids in New England took place at Suffolk Downs racetrack, and the community scrambled to provide representation for the almost 100 individuals arrested in the raid. The effort to recruit pro bono counsel helped establish the PAIR Project, and I became its first director. After a year away working in Saudi Arabia as interim director of the joint voluntary agency in charge of resettling thousands of Iraqi refugees from the first Gulf War, I returned to begin teaching at Boston University law school and to start up immigration clinical work at the school.
Through the immigration clinical work, I joined a nationwide network of lawyers to challenge ideological exclusion and the use of secret evidence to detain and deport Arab and Muslim non-citizens. The first ‘test’ case was the LA-Eight, which began in 1986 and finally concluded successfully for the respondents 20 years later. Each of the dozen Arab/Muslim secret evidence cases was a mini-litigation history in itself, involving immigrants from Iraq, Palestine, Jordan and Egypt.
Along came 9-11, and we were faced with a new era of mass immigration roundups, FBI surveillance, wiretapping, administrative detentions, NSEERS, ‘Special Interest’ designees, and no-fly lists. Although I participated in the effort to publicize, challenge and organize to defend against these policies, our efforts were very limited in the face of the massive roundups taking place across the country. Guantanamo was our next challenge, and I worked with many of the Guantanamo defense lawyers on strategies to seek resettlement for those detainees who could be released. The Guantanamo litigation continues.
Meanwhile, our students doing immigration representation in the clinic at BU have handled well over a hundred cases over the years, involving every issue from trafficking cases, to severely traumatized and abused individuals, to children through special immigrant juvenile or asylum claims, to habeas claims for release from detention. We have challenged denial of access to counsel, wrongful denials/delays of work authorization, exceptional circumstances to the one-year bar, lack of full and fair interpretation, and sought suppression of documents violating due process. We have sought recusals of an immigration judge who has shown extreme bias and prejudice against our clients; represented incompetent clients (winning a case without respondent’s testimony under Matter of M-A-M); litigated issues of statelessness; and the application of international law standards in asylum cases.
More recently, I have incorporated international refugee advocacy into our asylum and refugee work, and our students now juggle individual cases with larger projects involving human rights and refugee advocacy. Our projects have taken us to Cambodia and Haiti to work on child exploitation and trafficking; to Geneva for UN advocacy on behalf of Western Saharans, Palestinians, and, most recently, Tibetans. Over the years, experience has taught that domestic immigration and asylum law and policy is integrally connected with international migration and refugee law. Although as a community of advocates we are learning these valuable lessons, we are a long way from accomplishing the goals of fair humanitarian policies for forced migrants in this country.
NLG Member Susan Akram is clinical professor at Boston University School of Law, where she supervises in the Asylum and Human Rights clinical program, teaches refugee law, international human rights law and immigration law.
By Beverly Chorbajian
It can be a liability to have too much compassion in this business. I made a decision a few years ago, that if I couldn’t save the world, maybe I could save one person.
We stopped at a red light and a crowd of city high school kids in graduation gowns rushed across in front of us. The auditorium was emptying out, gushing new, laughing graduates and their parents, friends and relatives out onto the sidewalk. It hit me like a brick between the eyes : my client, the young man in the front seat next to me, was not “allowed” to graduate from high school. He had not lived at home with a family since he was ten years old. At age ten, exhibiting signs of mental illness, and the first of dozens of suicide attempts, he was sent to go live in a “therapeutic” setting; a boarding school for children who have “special needs”. And although he went to school all year, with no summers off, the funding bureaucracy prevented him from being granted a diploma. He was simply cut loose at age 17 to fend for himself.
He started in Fitchburg, a dumpy city full of empty mills that missed the gentrification bus. As we drove by the library there one day, he showed me “right there behind the library” was where an older man first introduced him to heroin. He would always point out to me places he had shot up or nearly over-dosed, or where friends of his had died, and places he can sleep when he is homeless and places he can get free food. His world contained landmarks of mundane places marked by trauma.
He ended up in jail at age 19 for setting a fire in a vacant building to keep warm. Indicted for arson, assigned a court-appointed attorney, he was encouraged to plead guilty rather than defend. I thought I would have done things differently for him. At twenty years old, he ended up losing his temper with a guard. The government indicted him again and at twenty-one years old, he pled guilty and served seven years in Walpole, a maximum security prison. His mother had long abandoned him and moved to parts unknown. His father, too, was in prison. He had no visitors for those seven years.
With no treatment for his mental health issues, he was “disciplined” by isolation for his behavior in prison. He was one of the inmates who tried to “eat his television” I had heard about. He would smash up the pieces and eat them to get sent to the infirmary or for a trip to the hospital. After seven years he was released to the streets which meant living in a tenement with no hot water in the winter and ice in the bathtub. Incredibly, he was expected to follow the rules of probation.
When I met him, I was assigned by the court to represent him on a violation of probation after he and his then-girlfriend attempted a joint suicide by overdose. I learned about the “twenty yard stare”. I was struck to the core by a person the same age as my own children who could not smile or exhibit any emotion. The first thing I did was hire a psychologist to evaluate him and write a report for the judge. He was released from jail, but now the hard part was finding him a place to live and to keep him alive.
I decided to be a person who would care about his well-being. I brought him a coat, then gloves. Gradually, he would drop by my office and I would give him coffee and we would talk. I then decided to bring him home to meet my family. We shared dinners together and worked in the yard. I could see him getting “better” in the sense that he could now laugh and smile.
We applied for disability. I waited in long lines with him to get a caseworker for emergency assistance. I harassed the social service agencies for housing when they claimed he didn’t qualify because of his arson conviction. I took him to get a driver’s license. I praised him when he passed. I took him to vote. I helped him buy an old pickup truck which he ended up living in when he got kicked out of his group home for mouthing off at one of the staff. When I bugged the homeless shelter people to find him housing they told me they had a worker who would drive around at night verifying that he was sleeping in his truck. This went on for weeks. We finally let him sleep on our couch on the coldest nights.
Eventually he met a woman and they have been together for a year and a half and he has a daughter who is four months old. They are living in an apartment on welfare. He still collects disability. He sends me pictures of the baby on the phone and we keep in touch. He tells me the state might try to take the baby. It’s a constant drama. But so far, he hasn’t been arrested. And he hasn’t talked about killing himself for almost four years.
So, maybe everything will be okay.
Beverly Chorbajian is a criminal defense attorney in the Worcester area. She has been a member if the NLG for almost 10 years and is not serving on the NLG Board and Mass Defense Committtee.
By Lauren Marcous
When I graduated law school in the spring of 2012, I was faced with the daunting task of finding space in the legal profession where I could be both a single-mother and a new lawyer. After considering the many challenging positions that would inevitably force me to shirk either my career or family responsibilities, I realized the most sensible way to forge ahead was to start my own practice. I began to develop a business plan that was based on the simple premise that I would provide legal services at no or low cost to people who are historically unrepresented while simultaneously earning enough income to meet my family’s basic needs. To meet this goal, I took a careful inventory of the substantive areas of law that I was most familiar with and then narrowed that list down to the areas that would allow me to establish flat, sliding-scale rates and/or utilize fee-shifting statutes. Through this exercise I arrived at a short list of potential practice areas, which included consumer protection law, landlord/tenant law, special education law, and disability law.
Within just weeks of being sworn in, I opened the doors of my solo practice. My first several cases were of the landlord/tenant variety and were referred to me from the Massachusetts Justice Project. There were three sets of tenants, all of whom were living in a bank owned building with horrendous conditions and were now suddenly facing eviction because the bank claimed there was a binding purchase and sale agreement on the property. Though these were not particularly complex cases, they raised particularly complex issues for me as a new attorney. Among many other things, I had endless burning questions about engaging in best procedural strategies, dealing with opposing counsel, complying with ethical obligations, and understanding judicial applications of law. I immediately realized that without the ongoing commitment and support from my predecessors, my dream of being a successful solo practitioner was going to fall quite short.
With this in mind, I set out to develop a wide support network of like-minded lawyers who could mentor and guide me through what was clearly going to be an arduously steep learning curve. As an active Guild member in law school, I was fortunate enough to have worked with many different attorneys from across the state in my chosen fields, including several long-time Guild members. With this foundation, I have been able to build an arsenal of experienced attorneys who are ready, willing, and available to field my call when I need advice on an unusually complex case or an unprecedented legal issue. I know I can count on folks like Jeff Feuer, Lee Goldstein, and Bill Newman, to take time out of their busy schedules to talk me through whatever issues I’m having and arrive at a plan on how to best move forward.
Though flying solo straight out of law school as a single-mother certainly has its drawbacks, it pales in comparison to the possible alternatives, which include the likes of 60+ hour work weeks in someone else’s office doing legal work that I may or may not morally support. It is only with the professional support and mentorship of Guild attorneys, as well as attorneys who are friends of the Guild that I have been one of the lucky ones who can give the solo practice of law a valiant effort in these dire economic times.
Lauren Marcous graduted in May 2012 from Western New England School of Law in Springfield. She has been in the NLG since her first year in law school.
It is hard to believe that she is gone. Emily Novick passed away on November 18, 2012, of malignant cancer first diagnosed in August 2012. She began her career as part of a building take-over supporting women’s issues. Her career as a lawyer began soon thereafter. Her greatest joy was representing small unions such as the House Officers at Boston Hospitals and injured workers in workers compensation cases. Recently she became a judge for the Industrial Accident Board (IAB). She was devoted to fairness and justice for workers, and was marked by loyalty and compassion for her staff, her colleagues, her friends and family. At a time when struggle to change society involved organizing in the streets, in the unions, in relationships and in the profession, Emily was both an honor to know and a pleasure to know, a combination which is more rare that we would have hoped. To many of us she was also a mentor.
In the late 70s, the labor movement, the legal profession , , the worker’s c omp bar and almost all the judges were about 96% male. Emily entered, and became a leader in all those worlds.
Emily’s great gifts were connection and affection. She brought people together. With her graceful, boundless energy, she was drawn to anything to change working conditions and to improve the lives of others, with the small Dorchester office of Doyle, Playter, Novick and Reitmayer, representing protestors in occupations and sit-ins and working with the National Lawyers Guild Street Law Clinics, the Mass. Coalition for Occupational Safety and Health, the Women’s Institute for Leadership and Development – to name just a few organizations to which she was dedicated and committed.
She was a founding partner of Kehoe, Doyle, Playter and Novick, a firm that fought for justice and equality for 20 years. Emily gravitated to worker’s comp, representing people suffering injury or death by industrial accident, and to labor law in hospital settings, where she helped residents organize into unions, and then encouraged the doctors to help improve conditions for orderlies, techs and nurses. Usually, she brought in more money than any of us. The pay scale depended on one’s length of time as a lawyer.
At Kehoe Doyle, Emily was able to be political and also to generate sustenance, balancing that difficult task of generating revenue through the fallow periods until we would get a victory in employment discrimination, med mal or toxic tort cases. Drawing from the strength of her mother, an advocate in the schools for underperformers, and her father, a textile manager, she knew that hard times could knock on any door, and that we had to be flexible, and resourceful and innovative in managing our careers. In 1998, when Kehoe Doyle broke up, Emily balanced family needs of her husband and sons with a practice representing doctors, doing arbitrations and labor briefs. Her ready smile and supportive hug was the thing missed by the rest of us the most.
Governor Deval Patrick appointed Emily to the IAB, after Republican judges had passed on her. She continued to write decisions into November, not wanting the parties before the Board to have to retry cases. In her tenure on the bench, she was never reversed. She was fair, and listened to all sides, and protected the rights of deserving workers to benefits, and made the hard calls when the evidence warranted it.
Even as she got weaker, Emily was always thinking of others. One day in September, after particularly helpful service on her first appointment at Dana Farber, Emily asked me to find the boss of several parking valets to thank them. She was in a wheel chair later that day. It didn’t surprise me one bit to discover that her actions had led to the parking valets getting a bonus.
We, in the MassDissent community, having lost Emily Novick know how quickly someone can be gone without warning. Secretary of Labor Joanne Goldstein, a friend of Emily’s told a story how decades ago, she was lamenting that her son was stranded in Spain with no family for a holiday. Emily called her sister in law in Paris, discovered the train and plane schedules and secured him a Parisian home for the holidays. She told Joanne, all you have to do is write the check.
For all the workers for whom Emily advocated, or wrote a decision, identifying the path and the route for compensation, for all the residents who have become better doctors and all the countless other plaintiffs whose cases were supported by the force of her advocacy. Thank you Emily, for making people write checks to right the wrongs, or fill the gaps. You have left a huge one behind.
These words are obviously inadequate to express the feelings of those who knew you. We will never forget you.
– Liz Rodgers –
long time law partner and friend
with a little help from – Rob Doyle –
another long time law partner and friend
by Josh Raisler Cohn
In the last several years, there has been renewed interest in evaluating the costs of pretrial detention. The results are consistent: pretrial detention disproportionately impacts poor people and people of color; the people who are held in captivity pretrial are overwhelmingly not a risk to society; the costs of such detention are expansive; and people held pretrial have worse case outcomes. Here is a renewed reminder that getting clients out of captivity pretrial can make the biggest difference in their cases.
About one third of all detainees around the world are being held in captivity pretrial. Globally, about 3 million people are in pretrial detention at any time, and over the course of a year, 10 million people are held pretrial.
The UN Working Group on Arbitrary Detention has noted that empirical research shows those in pretrial detention have a lower likelihood of obtaining an acquittal than those who remain at liberty before their trial; this “deepens further the disadvantages that the poor and marginalized face in the enjoyment of the right to a fair trial on an equal footing.” A recent report by the Open Society Institute cites that in South Africa, people held in custody were six times more likely to be sentenced to jail than those who had been released pretrial.
Closer to home, of those detained in jails in the United States, three-quarters face nonviolent charges, for drug, property, or petty offenses, according to Shima Baradaran, who chairs the American Bar Association’s Pretrial Release Task Force. She and Rutgers Business School economist Frank McIntyre reviewed 15 years of felony data from the largest counties in the US. They found that only one to two percent of felons are rearrested for a violent crime before trial.
They concluded that there would be no increase in crime if courts released 25 percent more people without one bit of additional supervision, noting that an even larger number could be released under expanded pretrial program. But a lack of risk to society is not the only reason to push for increased pretrial release.
The conditions people are subjected to in pretrial detention are often significantly worse that post-trial captivity. Pretrial conditions are not designed to be long term (though of course they often are), so states and counties often refuse to provide educational, recreational and vocational opportunities. The ever increasing numbers of pretrial detainees have also led to overcrowding, which increases the risks of violence, contracting diseases, and worse access to food and the outdoors, all in addition to the worse case outcomes.
The negative effects of detention also contribute to the socioeconomic impact of pretrial detention, albeit in ways that are difficult to measure. What are the costs to society when the innocent languish behind bars? How do we measure the lost potential when captivity destroys a victim’s body and spirit, leaving them unable to work after release? What price does a community pay when one of its members returns from pretrial detention carrying tuberculosis? While it is difficult to put a price tag on these negative outcomes, it is clear who pays: the poor and marginalized.
The connection between race and pretrial detention has been a long-standing topic for people involved in the criminal legal system. Studies have clearly shown that pretrial detention procedures disadvantage people of color, and that Blacks and Latinos are more likely to be detained at the pretrial stage. Unfettered prosecutorial discretion is often left out of the critique of powerful tools that are leveraged against defendants with the effect of racial discrimination. The decision of what charges to issue and what bail to ask for (if any) are decisions solely in the hands of the prosecution, and their intentional and unintentional race biases and stereotypes can be implemented without review. A renewed commitment to the presumption of release, encoded in the Massachusetts General Laws, would be one way to start to undermine that unfettered prosecutorial discretion.
Rates of pretrial release have dramatically decreased at the same time that rates of overall imprisonment have skyrockted. In 1990 cash bails were set in 53 percent of felony cases. By 2006 that figure had swollen to 70 percent. In addition to an increase in the number of people charged, that increase also reflects that the proportion of defendants held in captivity pretrial rose over that time, often because the cash cost of release was too high. Since the recidivism rates for people on pretrial release are low, particularly for serious crimes, the courts must be pushed to consider other options besides captivity.
The Christian Science Monitor recently addressed this issue, noting that “the state of Kentucky established statewide pretrial services in 1976 and is one of only four states without commercial bail. Today, Kentucky counties release an average of 76 percent of defendants on nonfinancial bonds, a rate that has risen recently because of a 2011 state law that requires judges to consider pretrial services’ risk assessment when making release decisions.” This procedural shift recognizes the reality that is is cheaper for states to not have defendants—who in reality pose little risk to society—behind bars.
The NLG is a unique group, with members working as lawyers representing people, members who are legal workers building support committees for activists on trial, and members who are prisoners litigating pro-se. In these roles, we need to keep fighting, both on an individual level to keep defendants out of captivity and collectively to push back against the state and court practices that have forgotten about or are working to undo the presumption of pretrial release.
By Howard Brown
Criminal attorney’s have a difficult job. Statuses change, rules change, and case-law changes . This requires a continual study of the law. Another change may come when new notions arrive. Take for example the widespread changes because of the use of DNA evidence. Innocent prisoners, people convicted for crimes they were later proven not to have committed, went home. Here is something else that could free a prisoner, or bring changes in laws. I believe circa fall/winter 2008 I listened to the 6 a.m. Sunday morning talk show on then oldies 103FM hosted by June Knight. Her guest was a Doctor who wrote a controversial book about Bipolar. He talked about a mother coming to him about her teenage son suddenly having violent behavior. The teen was labeled Bipolar. The Doctor examined the teen. He found a cyst on the teen’s brain. Once operated on to remove the cyst the violence went away. The Doctor is finding case after case of Bipolar patients with cysts on the brain. Once removed, the violence goes away. There are many prisoners who suffer from a diagnosis of bipolar. Does criminal justice require a check for a cyst? Is a defendant responsible for violent behavior if they have a cyst causing the violence? With today’s electronic information I am sure a clever attorney can track down the doctor and book.
A fundamental right for meaningful access to the courts us the ability of a defendant to communicate with an attorney. To help in that matter, I would like to see every defendant have a copy of the “Georgetown Law Journal Annual Review of Criminal Procedure”. It reports on Supreme Court and the 15 Federal Appellate Courts case-law. It s $25.00 for prisoners. Georgetown Law 600 New Jersey Avenue NW Washington, DC 20001-2075, firstname.lastname@example.org The defendant would have a good law book to study in his cell. Federal case law is vital if a 28 USC 2254 writ of Habeas Corpus is sought. Prisons have been changing from law books to Inmate Law Computers, but the books will help hose not keen on computers. As sweeping law changes come every year, it is critical that lawyers and prisoners both stay up to date, and keep studying the changing and developing law.
They come by my office every day: clients requesting a letter of reference and support to take to a judge or a probation officer or some form of a court-ordered program. I am a social worker at a community resources center in downtown Boston. We help those struggling with addiction, those in recovery, the homeless and precariously housed, the mentally ill and the traumatized. If you also work in the Boston area then it’s probably true that many of the people I work with are the same people that you work with from time to time.
I always write these letters my clients request and encourage people to come ask me for them anytime. I write about a person’s reliability, commitment to learning in recovery, a client’s problem-solving and stress management skills, and their role in the community. To the extent I can, I try to convey that the person I am writing a letter for has challenges that he or she is working to address through hard work. I also write letters of support to housing authorities, potential employers and DCF. We all know that once out of jail or the courts no one gets to just leave their criminal record behind.
I think, given our work, we can all see the patterns and the cycles of circumstance that send our clients in and out of the criminal system. It is usually something small that starts it… a fight with a girlfriend or a family member, losing housing or getting robbed at a shelter. Sometimes it’s running out of places to stay or an old buddy from the neighborhood getting back in touch with someone.
Somehow a lot of the people we work with end up back in trouble. But quite often they also put a lot of effort into keeping up the good work of making amends with themselves and others before that happens. These are the meetings, support groups, programs, therapy sessions, community organizing campaigns and other engagement that happens in the in-between. As a community-based social worker I get to see a lot of these types of things and support people in their hard work righting upended lives
A lot of the time these letters are solicited by clients without the prompting of their lawyers. This is really a shame, and I am often left wondering if the lawyers see the value in their clients collecting such things. As a social worker concerned with the injustice of the criminal punishment system I would like to think the work I do and the support work I offer can be a part of criminal defense work.
Additionally, let us all be real: our clients have complex trauma histories that have forced them to develop adaptations and coping mechanisms that may get them in trouble with the law. Social workers see this too and can speak to the power of history in a person’s life. I see this power in a broader understanding of each others’ work and how communication can improve outcomes for clients and build networks of support. So if your client has some social workers in her or his life, please be in touch.
Community Social Worker