Category Archives: front YAD

Transitions in Youth Advocacy Division Appeals

The phrases most likely to come out of Barbara Kaban’s mouth: “I can do that.”  “I will do that.” And most likely: “I already did that.”

Barbara embodies all the characteristics of a great public defender: outstanding legal acumen, a never say die attitude, extraordinary energy, unending generosity, and a willingness to speak her mind.  Barbara came to the Committee for the Public Counsel Services in 2012, as the first Director of Juvenile Appeals for the Youth Advocacy Division.  At CPCS, Barbara teamed up with Ben Keehn and a host of other lawyers and social workers to seek justice and freedom for the dozens of adolescents who had been condemned to die in Massachusetts prisons.  Together they litigated the implementation of the 2012 Supreme Court decisions, Miller v. Alabama, which which prohibited imposition of mandatory sentences of life without parole for juveniles.  This resulted in the SJC decisions banning life without the possibility of parole in any juvenile case (retroactively) and creating a right to counsel and access to funds for experts in juvenile lifer parole hearings.  It also resulted (so far) in nearly a dozen positive parole votes and several former juveniles already back in the community as free men.  She has been instrumental in establishing a specialized appellate panel whose mission is to enforce and enhance the constitutional and statutory rights of Massachusetts’ juveniles.

Barbara is retiring from CPCS, but only to free her up to pursue even more litigation, writing, and teaching as a private practitioner.  She will continue to combine her expertise in education advocacy and adolescent brain development with a comprehensive understanding of the state criminal justice system to provide exceptional training and support to the cases before the state juvenile defense bar.  She has authored or co-authored countless amicus briefs and, as an expert at litigating major cases before the Supreme Judaical Court in Massachusetts, we are counting on her continuing this practice.  She will continue to be sought-after for advice regarding challenging cases and implementing innovative strategies to bend the law in the direction of justice.  Barbara is a born risk-taker and trailblazer.  We have no doubt that she will continue to push the law in a direction that most benefits juveniles and their unique legal and life needs.  She inspires (and entertains) her fellow attorneys with her quick wit and her penchant for pushing boundaries and will be deeply missed in the office.  She was never afraid to challenge conventions in her zealous advocacy for her clients.  Generations of youth in Massachusetts will reap the rewards of her efforts.  We believe we speak for all of us when we say Barbara will be sorely missed (and we certainly will keep her cell number on speed dial).

As difficult as it is to lose Barbara, we are very fortunate to be introducing the next Director of Juvenile Appeals: Ryan Schiff.  Ryan is a worth successor to Barbara.  I know this because Barbara said so.  And so did Beth.  During his tenure in the CPCS Special Litigation Unit from 2010-2015, Ryan litigated numerous successful, important appeals in the Supreme Judicial Court.  Within a month of joining the SLU, Ryan argued and won the case of Coffin v. Superintendent of the Mass. Treatment Center, in which he persuaded a majority of the SJC justices that an illegal sentence could not provide the custodial predicate for an SDP commitment.  The following year, Ryan prevailed in Doe v. Police Commissioner of Boston,  in which the SJC held unconstitutional a statutory provision of the Sex Offender Registry Law as applied to an elderly man in a rest home.  In 2013, Ryan won Comm. v Hanson H., in which the SJC held that juveniles adjudicated delinquent are not subject to mandatory GPS monitoring, and in 2014, Ryan won Moe v. Sex Offender Registry Board, a class action in which the SJC held that new registry dissemination laws for level 2 offenders could not be applied retroactively.  Prior to joining CPCS, Ryan was an Associate with Salsberg & Schneider providing representation at all stages of federal and state criminal and civil cases.  Ryan received his J.D. from Northeastern and also has an M.A. in English from UMass Boston.

As with Barbara a simple recitation of his credentials and some of his cases does not begin to do him justice.  Like Barbara, Ryan is a strategic legal thinker who excels at spotting issues and developing strategies for effecting systemic change through litigation.  He is also committed to devoting himself to providing leadership and support to all juvenile practitioners.  As he remarked in the hiring process, he is much more interested in working closely with the many strong juvenile defenders around the state to support their advocacy efforts than in playing a “Lone Ranger” role, riding to the rescue a few times a year.  Please join us in welcoming Ryan to YAD.

Ziyad Hopkins, Ian S. Axford Fellow in Public Policy recently returns from NZ

Ziyad Hopkins, a Youth Advocacy Division attorney and 2015 Ian S. Axford Fellow in Public Policy, recently returned from studying New Zealand’s juvenile justice system.  Widely hailed as a leading system, New Zealand imbues restorative justice principles into its response to youth in conflict with the law.  For the last twenty-five years, New Zealand has focused on diversion and de-carceration of young people.  At the center of its system, the family group conference is a process where young people, their families and supporters come together with representatives of the state and complaining witnesses to actively engage in creating a plan to address the circumstances of the young person.  The family group conference is often cited as the sustained and comprehensive restorative justice system.  His final report, describes a process that has much to emulate, as well as areas of opportunity to improve the administration of justice through increased access to counsel.  The New Zealand Ministry of Social Development, Youth Policy Team supported Ziyad and he worked with the Ministries of Social Development and Justice, both of which are engaged in a review of their youth justice sector.  The office of Principal Youth Court Judge Andrew J. Becroft was instrumental as well.  

President Obama Proclaims October 2015 National Juvenile Justice Awareness Month

President Obama proclaimed October 2015 to be National Youth Justice Awareness Month. He highlighted many of the issues central to YAD’s mission that our clients achieve “both legal and life success” including: addressing disproportionate minority contact; raising the age of criminal responsibility; and disbanding the School to Prison Pipeline the latter of which is the focus of our EdLaw Project. We are heartened that the White House recognizes the importance of this matter as every month is Youth Justice Month for the Youth Advocacy Division, our dedicated Massachusetts juvenile bar, and countless collateral supporters.

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All our Nation’s children deserve the chance to fulfill their greatest potential, and nothing should limit the scope of their futures. But all too often, our juvenile and criminal justice systems weigh our young people down so heavily that they cannot reach their piece of the American dream. When that happens, America is deprived of immeasurable possibility. This month, we rededicate ourselves to preventing youth from entering the juvenile and criminal justice systems and recommit to building a country where all our daughters and sons can grow, flourish, and take our Nation to new and greater heights.

Involvement in the justice system — even as a minor, and even if it does not result in a finding of guilt, delinquency, or conviction — can significantly impede a person’s ability to pursue a higher education, obtain a loan, find employment, or secure quality housing. Many who become involved in the juvenile justice system have experienced foster care or grown up in environments where violence and drugs were pervasive and opportunities were absent. Some studies have found that many youth in juvenile justice facilities have had a mental or substance use disorder in their young lives. These children are our Nation’s future — yet most of them were afforded no margin of error after making a mistake.

Each year, there are more than 1 million arrests of young people under the age of 18, and the vast majority of those arrests are for non-violent crimes. Estimates show that half of black males, 44 percent of Hispanic males, and nearly 40 percent of white males are arrested by age 23. Nearly 55,000 individuals under age 21 are being held in juvenile justice facilities across the United States — a disproportionate number of whom are young people of color, including tribal youth. The proportion of detained and incarcerated girls and young women, often victims of abuse, has also significantly increased over the past few decades.

In addition to those serving time in juvenile justice facilities, on any given day, more than 5,000 youth under age 18 are serving time in adult prisons or local jails. Nine States prosecute all 17-year-olds as adults regardless of the crime committed, including two States that do the same for 16-year-olds; and all States have transfer laws that allow or require criminal prosecution of certain youth. This continues despite studies showing that youth prosecuted in adult courts are more likely to commit future crimes than similarly situated youth who are prosecuted for the same offenses in the juvenile system.

To hold a young person in a State-operated facility can cost upwards of $100,000 per year per individual. That money could be better spent — with improved youth and public safety outcomes — by investing in our children in ways that help keep them out of the juvenile and criminal justice systems in the first place, or that prevent them from penetrating deeper into the system. As a Nation that draws on the talents and ambitions of all our people, we must remain focused on providing the institutional support necessary to stop our youth from being locked into a cycle from which they cannot recover or fully take their place as citizens.
My Administration is committed to working with States, as well as tribal and local jurisdictions, to implement reforms that reduce recidivism and improve youth outcomes. Last year, the Department of Justice launched the Smart on Juvenile Justice initiative to advance system-wide reforms that improve outcomes, eliminate disparities, and save money while holding youth appropriately accountable. These efforts include emphasizing prevention, promoting cost-effective and community-based alternatives to confinement, and sustaining programs that provide job training and substance use disorder treatment and counseling to youth in juvenile facilities. The Departments of Education and Justice are leading efforts to revamp school discipline policies and support underfunded schools so that our education system serves as a pathway to opportunity, rather than a pipeline to prison. Additionally, the Department of Health and Human Services and the Department of Justice are working to build better diversion policies to screen and treat youth for substance abuse, trauma, and unmet mental, emotional, and behavioral needs.

Last year, I launched My Brother’s Keeper — an initiative to address persistent opportunity gaps faced by boys and young men of color and ensure all young people can reach their inherent potential. As part of this initiative, we are focused on reducing rates of violence while improving outcomes for all our youth. I also launched the Generation Indigenous initiative, which seeks to improve the lives of Native youth through new investments and increased engagement so they can achieve their highest aspirations.

America is a Nation of second chances, and justice means giving every young person a fair shot — regardless of what they look like or what zip code they were born into. The system we created to safeguard this fundamental ideal must do exactly that. During National Youth Justice Awareness Month, let us recommit to ensuring our justice system acts not as a means for perpetuating a cycle of hopelessness, but as a framework for uplifting our young people with a sense of purpose so they can contribute to America’s success.

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim October 2015 as National Youth Justice Awareness Month. I call upon all Americans to observe this month by getting involved in community efforts to support our youth, and by participating in appropriate ceremonies, activities, and programs.

IN WITNESS WHEREOF, I have hereunto set my hand this thirtieth day of September, in the year of our Lord two thousand fifteen, and of the Independence of the United States of America the two hundred and fortieth.


Barack Obama

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SJC takes age into account and upholds judge’s dismissal of delinquency complaint.

In Commonwealth v. Ilya I., SJC -11637 (February 13, 2015), the SJC reversed the Appeals Court and upheld a juvenile court judge’s dismissal of a delinquency complaint for lack of probable cause. The juvenile was charged with possession of marijuana with intent to distribute after the police found thirteen individually wrapped bags of marijuana inside a clear plastic sandwich bag in the juvenile’s groin area during a pat frisk. Notably, the SJC took the juvenile’s age into account when considering the totality of the circumstances.

The Commonwealth relied on the following factors in their argument that the four corners of the application for complaint set forth probable cause for intent to distribute: (1) the quantity and packaging of the marijuana secreted in the juvenile’s groin area; (2) the juvenile’s association with a group of individuals engaged in conduct consistent with a drug transaction; (3) the juvenile’s nervous demeanor during the encounter with the police; (4) the odor of unburnt marijuana; (5) the traffic pattern of the vehicle in which the juvenile was a passenger; and (6) the lack of drug paraphernalia on the juvenile’s person. The SJC answered each one of these arguments. As to the juvenile’s demeanor, the Court said as follows: “The Commonwealth claims that the juvenile “looked nervously” at the police officer as the juvenile crossed Washington Street and entered the vehicle. This characterization vastly overstates the juvenile’s apparent reaction to becoming aware of the police presence in the area. The narrative states only that the juvenile “walk[ed] away in a hurried manner looking back at the officers several times.” Even if the juvenile’s behavior properly could be characterized as nervous, it lacks value in the probable cause assessment. . . While nervousness in an encounter with a police officer may be factor in the probable cause analysis, see Commonwealth v. Sinforoso, 434 Mass. 320, 324 (2001), it lacks force in the circumstances of this case where a sixteen year old boy is under scrutiny by the police.”

The SJC concluded as follows: “In the analysis of the totality of the circumstances, the inquiry shifts away from the relative significance of each individual factor to their collective effect in the probable cause calculus. Even in combination, however, these factors are insufficient to establish probable cause to believe that the juvenile intended to distribute the marijuana found on his person. Although the question is close, our analysis accords greater significance to the nature and amount of the substance, and that it was possessed by a juvenile. . . As in Humberto H., 466 Mass. at 566-567, the juvenile’s age detracts from the probative value that otherwise might be accorded to his nervous demeanor and his association with other young black males on a street corner.”

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