Tagged: Massachusetts

Slowing Chipping Away at Child Marriage in the US

April 20th, 2019 in Analysis, State Legislation

Child marriage is condemned by the international community and the stated goals of the U.S. State Department.  In fact, the State Department’s “U.S Global Strategy to Empower Adolescent Girls” calls marriage before 18 a “human rights abuse.”  However, most states still have laws that allow for the marriage of children under the age of 18.  Eighteen states don’t even have a minimum age that a child can be married.  So far in the US, only two states, New Jersey and Delaware, have banned all child marriages with no exceptions.  Between 2016 and 2018, eleven states have passed laws that limit child marriage but still keep some exceptions, mainly relating to parental consent and 16 or 17-year-olds marrying someone within a few years of their own age.  Ten additional states have introduced bills curtailing child marriage, many of which were sent to study or died at the end of the legislative session in 2018, but with plans to be reintroduced in the next session.

The advocacy organizations leading the charge for new protections for minors are insistent that only a limit of 18 years old with no exceptions is good enough; especially since some of the legal exceptions exacerbate the problem.  For example, requiring only parental consent, especially when only a single parent’s consent is needed for marriage under the age of 18 leaves minors unprotected from marriage due to coercion.  A few states still allow for exceptions when the girl is pregnant, even if she is below the age of consent.  Pregnancy, of course, is one of the situations where girls are most often coerced into marrying men, some of whom are their rapists.

Earlier this month, Ohio joined the ranks of states attempting to fix this problem, if imperfectly.  House Bill 511 was introduced by

Ohio State House
Columbus Ohio
1839

Republican Rep. Laura Lanese and Democratic Rep. John Rogers last year with the intention of updating the former law, which treated boys and girls differently.  Previously, girls could get married at 16 with parental consent, although boys could not get married below the age of 18 without the consent of a juvenile court.

The new law, which was signed by Governor John Kasich just before he left office in January,  creates gender equality by requiring both boys and girls to be 18 in order to get married.  The only exemption allowed is a marriage at 17 if there is no more than a four-year age difference, if a juvenile court consents and requires a 14 day waiting period.  In the processes of determining whether to give consent, the court is instructed to consult with the parent or guardian, and appoint a guardian ad litem.  Additionally, a court must determine if the minor is in the armed forces, employed and self-subsisting or otherwise independent of a parent or guardian, and if the minor is free from force or coercion in the decision to marry.  The couple must also have completed marriage counseling satisfactory to the court.  Additionally, a provision was added that requires official proof of age.

There were strong reasons for the Ohio Legislature to act.  According to the Dayton Daily News, over 4,400 girls aged 17 or younger were married in Ohio between 2000 and 2015.  Of those, 59 were 15 or younger, and three were 14 years old.   Additionally, according to the Ohio Department of Health, there were 302 boys under the age of 17 were married between 2000 and 2015, with the approval of parents or a juvenile court.  A significant driver of the child marriages seems to be when a minor girl gets pregnant by an older man.

These types of marriages have harsh consequences including being 50% more likely to drop out of high school, three times more likely to experience psychiatric disorders, and divorce rates of almost 80%, which can more than double the chance a teen mother ends up in poverty.   Additionally, women who marry as minors lack the ability and resources to remove themselves from a harmful relationship.  For example, most domestic-violence shelters cannot accept minors, minors who leave home are considered runaways, and child-protective services can usually do little in regards to legal marriages. Furthermore, a child is unlikely to have the resources to escape an abusive relationship, pay attorney fees, or even sign any other legally binding document.

In Massachusetts, there is currently no age requirement for marriage, with minors requiring a half page petition, and approval by parents and the courts.  The statistics for child marriages in Massachusetts consist of 1,200 children as young as 14 married from 2000 to 2016.  In the time period from 2005 to 2016, 89% were underage females married to adult men.  In 2018, Democratic Sen. Harriet Chandler and Democratic Rep. Kay Khan introduced bills (S785/H2310) to end all child marriage with no exceptions.  The bill stalled, however, because as Democratic Rep. Khan noted because legislators were not been able to hear from victims who want to talk about their experience.  The bill was refiled at the beginning of the new legislative session that began in January.

Slowly, but surely, states are addressing the evils that come with child marriage.

Amanda Simile will graduate from Boston University School of Law in May 2020.

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Stop the Clock: Implications of Switching Time Zones

April 20th, 2019 in Analysis, Federal Legislation, State Legislation

The holiday season is joyous for many reasons; from family, friends, and food, there is ample joy and merriment to go around. There is one aspect of the season that doesn’t match these factors; especially in New England – darkness. At the outset of winter, on December 21st each year, the sun sets in Boston at 4:11pm. There are many negative effects of darkness setting in before the end of the workday – with increased crime, traffic accidents, and seasonal depression being one of the most paramount. Boston’s sunset is not the earliest in the area, with municipalities in Maine experiencing sunsets earlier than 4pm; but it is the earliest of the major cities, beating out Buffalo, NY despite being further south.

Early sunsets do not become apparent in New England until clocks fall back in line with the change from Daylight Savings Time. Daylight Savings is a federal program instituted during World War II that the country has become accustomed to; the federal legislation only permits states to opt out of the program, but it does not allow states to make the program permanent, which would keep the clocks from falling back an hour. Hawaii and Arizona have opted out of the program – made available through the US Energy Policy Act of 2005, allowing any state that lies entirely within one time zone to opt out.

New England states, primarily Massachusetts and Maine at this point, have been considering a change to the Atlantic Time Zone

The Sacred Cod and House Clock
Massachusetts House Chamber

in order to increase the number of waking hours with sunlight. With a change to Atlantic Time, and subsequent opting out daylight savings, New England would be out of sync with the rest of the Eastern Time Zone from November to March, or the period in which clocks “fall back” in line with daylight savings in the Eastern Time Zone. A transfer to Atlantic Standard Time – which includes Puerto Rico, the Virgin Islands and eastern Canada – would mean jumping an hour ahead of the Eastern time zone from November to February. The time zones would align from March to October.

While the benefits of having an extended amount of light in the evening hours are readily apparent, there are several drawbacks that accompany a change. Early risers in particular, who are likely accustomed to the sun being out while they start their days have reason to complain. School aged children may be leaving to their schools in darkness in the morning, and businesses that transact on financial markets may be put out of sync with the markets they depend on.

If New England were to change to Atlantic time, there would be a two-step process. First, the interested states would have to decide to leave. Second, the states would have to consult the US Department of Transportation, the cabinet agency that regulates time zones. States, municipalities, business interests, and others would have the opportunity to weigh in during both steps.

There could be major issues with “commerce, trade, interstate transportation and broadcasting” if one state moves ahead one hour while its neighboring states remain in the Eastern Time Zone. It seems to be a requirement of widespread support and agreement for any change in this area to take effect. Lawmakers in Maine might support the change – in May 2017, Maine’s Senate passed a bill that would move the state to the Atlantic Time Zone — if approved by residents in a state-wide referendum. Maine conditioned the change, subject to their approval, on Massachusetts and New Hampshire.

Some states seem to have considered the idea and decided against it, with the New Hampshire Senate voting against a bill that would move the state to the Atlantic Time Zone by a 16 to 7 vote; at the same time, the bill passed the house with a voice vote. While there has yet to be an affirmative move, the proponents of the change are enlivened by the action around the issue and are hopeful for the future.

Massachusetts established a commission to study the issue. In a neutral report neither supporting or disavowing the change, the commission stated its findings that "People tend to shop, dine out, and engage in other commercial activities more in after-work daylight,". . . "Year-round DST could also increase the state's (competitiveness) in attracting and retaining a talented workforce by mitigating the negative effects of Massachusetts' dark winters and improving quality-of-life." More daylight could also reduce street crime, on-the-job injuries and traffic fatalities, and boost overall public health, the commission found.

States in the Northeast seem intrigued by the change, but alterations of the particulars of their citizen’s days are deeply personal to their citizens may be a drastic change to take without widespread public support. In Arizona, the effects of their non-adherence to daylights savings time are apparent when the state is out of sync with the rest of the surrounding states – constant clarification of what time is in effect, setting different meeting times, etc. Results on an individual basis are a mixed bag, with businesses that are purely local and that thrive in the daylight being supporters of the longer day due to increased business, and those who constantly run up against timing differences by virtue of dealing with other regions.

It will be interesting to observe if public support for a time zone change increases as people in New England become aware that doing so is a possibility to increase their daylight hours in the depths of winter. In any case, it is clear that the states’ legislatures have identified it as a possible issue.

 

Drew Kohlmeier is a student in the Boston University School of Law Class of 2020 and is a native of Manhattan, KS, graduating with a degree in Biology from Kansas State University in 2016. Drew decided on Boston for law school due to his interest in health care and life sciences, and will be practicing in the emerging companies space focused on the life sciences industry following his graduation from BU.

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The Future of Supervised Injection Sites in Massachusetts and Beyond

April 20th, 2019 in Analysis, Federal Legislation, State Legislation

With Massachusetts and the country facing a rising opioid overdose epidemic, lawmakers are looking to some controversial measures to curb overdose deaths. One of those measures being considered is supervised injection sites, also called safe injection sites or safe consumption spaces. Safe consumption spaces, of which there are 100 worldwide, are clean spaces where people can legally use pre-obtained drugs with supervision from healthcare professionals who aim to make injections as safe as possible while providing health care, counseling, and referral services to addicts. While safe injection sites have been successfully implemented in Canada, Australia, and Europe over the past 30 years, attempts to create such sites in San Francisco, Seattle, Boston, and more U.S. cities have not yet been successful. Beyond policy arguments as to whether these sites are effective, sites in the United States also face significant legal hurdles under federal law.

According to supporters of safe injection sites around the country and the world, the policy is an effective and relatively low-cost way to prevent overdose deaths and manage harm with no demonstrated consequences of increased drug use or increased crime. Opponents of safe injection sites, including Massachusetts Governor Charlie Baker, have pointed to increased opioid deaths in

The Massachusetts State House
Boston, 1787

recent years in Vancouver, which established its supervised consumption site Insite in 2003, to argue that safe injection sites are not actually effective in preventing overdose deaths. However, those arguments are misleading, as experts have stated that the increase in overdose deaths in Vancouver are due to the influx of fentanyl being added to drugs, and that Insite actually saw a 35% reduction in overdose deaths around the facility in the two years after it opened. While there are also studies questioning the efficacy of safe consumption sites—calling into question whether they have a significant impact on reducing deaths and reaching a significant amount of drug users—even the negative studies generally criticize safe consumption sites as being relatively ineffective as opposed to actively harmful. There are dozens of peer-reviewed scientific studies that have found that safe injection sites actually do significantly benefit those who are addicted to opioids and prevent opioid deaths. Notably, no death has ever been reported in an injection site, and a review of studies concluded that injection sites were associated with less outdoor drug use and did not appear to have any negative impacts on crime or drug use.

Despite the strong evidence backing the societal benefits of implementing and supporting safe injection sites, the policy faces significant legal and political obstacles in the United States. Perhaps the biggest hurdle that advocates of safe injection sites face is the potential legal liability of such sites under federal law and opposition from the Justice Department. The Controlled Substances Act makes it illegal to “knowingly open, lease, rent, use, or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance,” as well as to knowingly manage such a place. The plain language of that law may render implementation of safe injection sites impossible without some change or exception carved out in federal law.

However, advocates of safe injection sites do have a glimmer of hope that, once the first U.S. site is created, it will pass judicial muster through a creative legal argument proposed by law professor and drug policy expert Alex Kreit. In his paper, Kriet argues that a provision in the Controlled Substances Act providing immunity to state and local officials who commit drug crimes while enforcing local laws could protect safe injection sites from a crackdown by the federal government. Kreit has stated that the infrequently cited rule has previously been used in situations where authorities have seized marijuana and then returned it in states where marijuana has been legalized. Under this theory, those involved in safe injection sites would be protected so long as they were acting in accordance with a city ordinance or state law supporting safe injection sites. Other experts have expressed skepticism that such an argument would pass muster, however, with some stating that Kreit’s argument is a “stretch,” and that any path toward legality for safe injection sites lies in convincing the federal government not to target safe injection sites on public health grounds.

If cities and states cannot find a legal workaround protecting those involved with the safe injection sites, advocates likely face an uphill battle in convincing their communities and the Justice Department to accept injection sites. Attempts at establishing sites have not been politically palatable, as demonstrated by efforts in San Francisco and Boston. California Governor Jerry Brown vetoed a bill that would have allowed supervised drug consumption sites in the state and went so far as to describe it as “enabling illegal drug use.” In Massachusetts, in addition to Governor Baker’s opposition to the idea of safe injection sites, the Senate ultimately stripped a provision authorizing safe injection sites from its comprehensive opioid bill this past legislative session, instead replacing the pilot program with a commission to study the feasibility of establishing such sites. In addition to opposition from state Governors and a lack of strong state government support, it seems highly unlikely that the current federal administration would turn a blind eye to safe injection sites on public health grounds. In addition to a statement from the Vermont U.S. Attorney’s Office criticizing the policy and affirming that the United States Attorney would impose ramifications under federal law, there have been multiple other instances indicating the administration’s hostility towards safe injection sites and similar policies. In August, Deputy Attorney General Rod Rosenstein wrote an op-ed in the New York Times opposing safe injection sites and emphasizing the fact that they violate federal law. The Justice Department also “promise[d] [a] crackdown” on supervised injection facilities on an NPR radio show.

While there is scientific and global community support for safe injection sites, their future in the United States is still unclear, especially under the current federal administration. Until there are more assurances that sites could operate without intervention from federal law enforcement, it seems that most cities and states that have been at the forefront of the push for safe injection sites do not have the political will or capital to open the country’s first site and become the guinea pig of the movement. Philadelphia, however, may be the one city willing to go first. In August, Philadelphia Health Commissioner Dr. Thomas Farley said that Rosenstein’s opposition and warnings from the Justice Department would not prevent Philadelphia officials from further exploring the idea. Currently, Philadelphia seems to be going forward with its plan to allow, but not publicly fund, a non-profit site called Safehouse, which could serve as a jumping off point for litigation determining the legality of the sites and potentially creating more certainty for other interested cities and states. As for Massachusetts, it seems unlikely that the Commonwealth will be establishing any safe injection sites in the near future, though the members of the commission created in last session’s opioid bill will no doubt keep a close eye on Philadelphia as its safe injection site plan comes to fruition.

Chloe Aubuchon graduated from the University of Michigan with a B.A. in International Studies and Spanish in 2017 and anticipates graduating from Boston University School of Law in May 2020

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Massachusetts Regulates Short-Term Rentals

April 17th, 2019 in Analysis, Local Legislation, News, State Legislation

Massachusetts’s Governor Baker signed An Act Regulating and Insuring Short-Term Rentals on December 28, 2018. The act regulates short-term rentals provided through services like Airbnb. The governor rejected an earlier version of the bill, and returned amendments primarily allowing for an exemption for owners who rent out their property for two weeks or less per year, and reducing the amount of information provided publicly about rentals owners.  The bill was motivated by concerns that the rise in short-term rentals drives up housing costs and pushing out long-term residents. The statewide bill comes after both Boston and Cambridge individually passed laws essentially having the same effects. However, the Boston law was challenged by Airbnb, who filed suit in federal court claiming that the regulations are “Orwellian” and violate several laws, including laws that protect online companies from being held liable for the actions of their users. The city of Boston is currently holding off on some of the regulations passed pending the resolution of the court case. Airbnb had not yet said if it will challenge the new Massachusetts law.

The statewide law has two main components: first, that all short-term rentals are taxed by the Commonwealth, and can be additionally taxed by local governments, and second, that all owners of short-term rental properties must register with the state and hold insurance. The registration requirement was a cause of debate. Lawmakers, including Governor Baker, were concerned about violating the privacy of owners by publishing their names and addresses publically. In the amendments to the July bill that Governor Baker rejected, the registration requirement was changed so that only the owner’s neighborhood and street name would be published, not their exact address. The law also dictates eligibility in order to register. To be eligible to be a short-term housing unit, the space must be compliant with housing code, be owner-occupied and be classified for residential use, among other requirements. Another cause of debate was an exemption for occasional renters. Governor Baker originally wanted owners who rent their properties for 150 days or less to be exempt from the regulations. However, in the final version of the bill, the exemption was decreased to 14 days.

Not surprisingly, the hotel industry supports the bill. Paul Sacco, the President and CEO of Massachusetts Lodging Association, said:

“This is a tremendous victory for municipal leaders and the people of Massachusetts who have been waiting for years while Airbnb rentals have exploded, resulting in skyrocketing housing costs and disruptions in local neighborhoods. By adopting a more level playing field between short-term rentals and traditional lodgers, lawmakers made great strides toward a more fair and sensible system.”

Airbnb had a far less enthusiastic response however. In citing concerns about the property owners who use Airbnb to earn extra income, Airbnb said that they would “continue the fight to protect our community and the economic engine of short-term rentals for hosts, guests, and local small businesses”

While Massachusetts is the first state to pass a law, many other cities have passed similar laws in the recent years. In Nashville, the city passed a law in January which focused on taxing short-term rentals that are not owner-occupied in order to fund affordable housing development in the city. The “linkage fee” tax is controversial, with lawmakers questioning if the fees generated are enough to actually impact the lack of low-income housing within the city. Seattle passed a similar tax law in November 2017. The legislation aims to encourage owners who rent out a spare bedroom and discourage investors who buy entire buildings for use as short-term rentals. Finally, New York City passed regulations in July 2018 which requires Airbnb, and other similar companies, to provide information about the properties listed for rental within the city. However, Airbnb sued in federal court claiming that the requirement to provide information to the city violated the company’s fourth amendment right against search and seizure. The law was set to take effect in February 2019, however the Judge granted a preliminary injunction in favor of Airbnb saying, “The city has not cited any decision suggesting that the government appropriation of private business records on such a scale, unsupported by individualized suspicion or any tailored justification, qualifies as a reasonable search and seizure.”

Jessica A. Hartman is a member of the Boston University School of Law Class of 2020.

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Automatic Vote Registration is a Necessary Step in the Right Direction to Increase Voter Turnout

February 7th, 2019 in Analysis, State Legislation

In 2016, Donald Trump won the electoral vote, and therefore the presidency, because of fewer than 80,000 people spread over 3 states; about the same population as Scranton, Pennsylvania. While there are many ways to analyze this narrow margin, the most important may be that elections can be decided by a small number of votes. This fact makes it increasingly important that governments ensure every eligible citizen has the ability to conveniently vote. When 80,000 people can decide a national election, any obstacle that inhibits citizens from voting can drastically change who our representatives are. One recent effort in several states is automatic voter registration.  While not the solution to all voting problems, it is a worthwhile first step towards greater voter turnout.

In 2015, Oregon became the first state to adopt automatic voter registration.Since then, 12 more states and the District of Columbia have enacted similar legislation. Most recently, in August of 2018, Massachusetts Governor Charlie Baker signed an automatic registration bill into law. Automatic voter registration laws change the traditional opt-in registration methods into opt-out plans. The Massachusetts law, for instance, requires automatic registration for anyone who completes a transaction with the Department of Motor Vehicles (DMV) or signs up for state healthcare (MassHealth), unless they opt-out of registration . The law will take full effect in January 2020,  in time for the next presidential election.

Because automatic voter registration is a relatively new design model, the research into whether or not it actually increases voter turnout is limited. However, the initial research from the Center for American Politics (CAP) seems positive. According to early numbers, of the 272,000 people in Oregon who were registered through the automatic system, more than 1/3 of them (approximately 98,000 people)voted in the 2016 election . This same data also suggests that Oregon's automatic registration law has created a potential pool of voters who are more representative of the age, income, and ethnicity of the state’s residents. At the very least, there is clear and conclusive evidence to confirm that automatic voter registration will definitely increase the number of people who have the option of voting in the next election. Since 2016, Oregon’s registration rates have quadrupled at state DMV offices. There have been similar results in Vermont where, after only six months of its new system, registration rates rose 62% from the previous year . While the effect remains to be seen in Massachusetts, officials estimate that approximately 680,000 new voters will be registered because of the bill.

Despite these promising results, automatic voter registration has not been without its critics. Opponents are concerned about various issues such as fraud, duplicate registrations, and accidental enfranchisement for undocumented immigrants. Proponents believe that these concerns, however, are largely unfounded. To combat the risk of fraud and duplicate registrations, many states conduct their automatic registration through multiple governmental agencies that can all supply and confirm correct identifying information (such as changed addresses or last names). The Massachusetts law allows registration through two different agencies and also requires the state to link with the Electronic Registration Information Center (ERIC); a third-party nonprofit that will update and report changed voter information to the state. Concerns of accidental registration of undocumented immigrants are most heightened in places such as California, which allows undocumented residents to obtain drivers licenses while also providing automatic registration through the DMV. Election officials in California, however, state that all automatic registrations in California are cross referenced with voter eligibility databases the ensure that this fear cannot come to fruition.

Proponents of automatic voter registration argue that while the potential negative side effects of these laws are negligible, the benefits are huge. Automatic registration is a small, but highly effective, tool to help protect the most vulnerable from having their voting rights infringed upon. One important example of this can be found in the state of Georgia. Georgia has had automatic voter registration through the Department of Driver Services (DDS) since September of 2016. Prior to adopting automatic registration, the state required voter applications to meet extremely strict  “precise match” requirements.  Under these precise match requirements, applications ccould be held or rejected if they did not precisely match the information the state already had on file for that person. Applications were held up for trivial issues such as missing hyphens or a signature that looked slightly different. In 2016, The Secretary of state ended these precise match requirements just as the state began implementing automatic voter registration.

Georgia Capitol
Atlanta, 1889

During the 2018 midterm election Secretary of State Brian Kemp reinstated the practice of requiring precise match’s for voter registration and absentee ballots. This requirement caused widespread rejection of absentee ballots and mailed in voter registration applications-- more than 53,000 ballots and applications because of precise match reasons. While 32% of residents in Georgia are black, approximately 70% of the rejected applications were from black residents. This seemingly suggests that one of the greatest issues with automatic voter registration is simply that it doesn’t do enough on its own to prevent voter suppression.

While automatic registration can effect great change in terms of the number of people who are registered to vote, it is only a beginning, and not an end, to improve the problem of voter suppression and voter turnout. The decision whether or not to vote is almost as personal as the decision of who to vote for. All citizens should have the right to choose whether they want to vote in any particular election. When state laws and policies make it difficult for people to register, the government ends up taking the decision out of the hands of too many Americans. The move towards easier registration is an important one. For a country whose elections are decided by so few votes, it’s imperative that anyone who wants to vote, gets to.

Ashley Zink anticipates graduating from Boston University School of Law with a Juris Doctor in May 2020.

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The Problems With Euclidean Zoning

July 19th, 2018 in Analysis, State Legislation

Since the1926 landmark Supreme Court case, Village of Euclid v. Ambler Realty Co., 272 U.S. 365,  it has been understood that the localities, municipalities, towns, and cities of the United States have the right to zone by dividing the town or community into areas in which specific uses of land are permitted. This is referred to as Euclidean zoning, and is considered the traditional and most common form of zoning in the United States. Euclidean zoning divides towns into districts based on permitted uses, and in so doing creates specific zones where certain land uses are permitted or prohibited. This can be helpful, as it enforces the separation of industrial land uses from residential land uses and can protect against pollution risks. However, Euclidean zoning has also exacerbated segregation issues, limited housing supply, and encouraged urban sprawl. Restrictions on minimum lot sizes, strict building codes, and other elements of Euclidean zoning have increased housing costs, limited new housing construction, worsened affordability issues, and increased the inequality divide in urban areas.

In Massachusetts, Euclidean zoning is the basis of General Law chapter 40A, the state’s zoning act. Chapter 40A encourages separation of land uses, and gives localities the ability to institute zoning within their borders. Given that Massachusetts has 351 towns, there are a wide variety of zoning bylaws throughout the state, based on each towns’ preferences and personal histories. Over time, Massachusetts’ state government has realized that the Euclidean zoning instituted by towns, aided and abetted by chapter 40A, has created neighborhoods that are dependent on cars and unsustainable. In an era of increased concerns about climate change, global warming, and greenhouse gas emissions, many people struggle to decrease their carbon footprint because they cannot get to the most basic goods and services, like groceries, schools, shopping, and work, without access to a car due to the enforced separation of uses within zoning districts. Separation of uses leads to urban sprawl, which is “the expansion of human populations away from central urban areas into low density monofunctional and usually car-dependent communities.” Increased urban sprawl has created patterns of development with extended infrastructure systems, increased impervious surfaces, and increased adverse impact on natural resources.

In response to concerns about Euclidean zoning, urban sprawl, and decentralization, Massachusetts’ legislature passed General Law Chapter 40R in hopes of encouraging changes in zoning and development patterns that would combat the impacts of Euclidean zoning. Chapter 40R’s purpose is to encourage smart growth and increased housing production in Massachusetts. Smart growth is a development principle that “emphasizes mixing land uses, increases the availability of affordable housing by creating a range of housing opportunities in neighborhoods, takes advantage of compact design, fosters distinctive and attractive communities, preserves open space, farmland, natural beauty and critical environmental areas, strengthens existing communities, provides a variety of transportation choices, makes development decisions predictable, fair and cost effective and encourages community and stakeholder collaboration in development decisions.”

The issue is that Euclidean zoning, is so ingrained it will be difficult for towns to change their entire structure. Chapter 40R tries to fit smart growth within the existing zoning structure by allowing towns and cities to create smart growth zoning districts in appropriate areas of the town. The state legislature attempts to help towns and cities ease into smart growth concepts by encouraging the development of a comprehensive plan, an affordable housing plan, and a vision plan for their community.

Massachusetts attempts to boost smart growth practices beyond using Chapter 40R. First is to amend the local bylaw. Communities could revise and amend their zoning bylaws to incentivize or require smart growth practices. Within zoning bylaws, communities can allow land uses “by-right” or “as-of-right”, which would permit land uses in a particular district without discretionary review. As such, the use may be regulated but cannot be prohibited. This method is the most predictable and easiest permitting method, so towns may permit land uses they want to encourage, like smart growth, as “by-right” uses. Using the “by-right” approach to make smart growth strategies easier to permit can make smart growth a more attractive option to developers who otherwise would have little incentive to use smart growth techniques when they are costlier and more time consuming to implement.

Another technique to boost smart growth would be to encourage site plan review as a procedure for getting smart growth developments approved. Site plan review is a “coordinated review of a development application between several local agents or boards.” Site plan review can potentially increase the amount and technical nature of the information submitted to the local boards, so communities should use caution in adopting this review technique. Site plan review can be used for “by-right” applications, as well as for special permit applications. “By-right” applications are more complicated, as the use is “by-right” and the reviewing authority does not have the power to deny the use. Once an application is deemed complete, the reviewing authority cannot deny the application, although the reviewing authority “may impose reasonable conditions that further the purposes and standards of the zoning code.” In short, site plan review, “as attached to by-right uses, should be viewed as essentially an administrative review,” and should be viewed as an opportunity for local boards to get more information about a development, not as a way to regulate or deny development.

Special permits were used in Chapter 40A to allow increases in the permissible density of population or intensity of a particular use; authorization of Transfer of Development Rights of land within or between zoning districts; and review of cluster developments, pursuant to the Subdivision Control Law. For smart growth, special permits can be used to enable innovative approaches, allow flexibility, encourage partnerships between developers and the community, provide incentives, and require specific design standards. Special permits are also useful for areas that are previously developed, and can allow redevelopment of preexisting nonconforming uses to encourage infill and active use of developed areas.

Chapter 40R’s main focus is on the use of zoning districts to encourage smart growth. This is done in conformity with Chapter 40A by allowing the creation of new districts or the use of overlay districts. Overlay districts lay on top of existing zoning and can cover many underlying districts or portions of underlying districts. This gives communities the ability to be flexible in regulating uses of land.

Euclidean zoning has been the norm in America for over ninety years, and while it has valuable features, its rigidity can and has exacerbated issues ranging from social issues like segregation, to environmental issues like urban sprawl. Changing this will be difficult, as Euclidean zoning has support for planning purposes as well as for class purposes, but techniques like smart growth, new urbanism, and statewide comprehensive planning can help combat these issues. Massachusetts has made a start at this by enacting Chapter 40R, but still has work to do on the statewide level to incentivize local communities to change their zoning or to make it easier for these zoning changes to occur.

Rachael Watsky graduated from Boston University School of Law in May 2018.

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A Practical Guide to Surviving Your First Legislative Externship

July 11th, 2018 in Legal Education, Legislative Operations

I have done quite a few externships over the years in a variety of fields. However, working at the State House has kept me on my toes. I had so much to learn. I had a great boss and that helped. But looking back, I wish I had prepared a little better. I had no legislative experience and was not from a state that did a lot of state government work. So here are a few tips I would give to those who are new to this environment.

  1. Learn a little about your state!

When I started my externship, I did not know anything about Massachusetts. I mainly came here to go to school and that was it. However, since working at the State House, I wish I knew more about the state and my senator’s district. I spent a lot of time googling regions of Massachusetts and asking questions. So if you have a legislative externship, feel free to do your research. Learn about the state and who are the constituents. Does a state have a larger rural population or an urban population? What are the industries and demographics of a state? Knowing these things will enhance your experience and give context to your interactions at the state house.

  1. Understand that state government is different from federal government

Being from Washington, DC, I had no concept of how state government worked. In my area, everything is concentrated in either the federal government or the local government. I had always viewed the federal government as a constant stalemate or arguing about things that did not matter. I thought that senators were inaccessible and expected that from my externship.  However, I was wrong. Senators in Massachusetts are generally pretty accessible and enjoy hearing from their constituents. I had no idea that a state senator would be different from a US senator. But while working for a state senator, I felt as though I was actually contributing to tangible changes. This is a super rewarding feeling that you won’t get anywhere else.

  1. Get familiar with the State House Website and State House News.

I believe this is one of the most important lessons I learned while working at the State House this year. The fastest way to learn about the State House is to read State House News and the State House website. Boston University School of Law provides its students with a free subscription to State House News. If you want to find out anything about what’s happening in the state house, State House News is the place to look. They have information on bills, legislators, and general news. The State House website will hold all of the bill before the legislature and the general laws. I spend most of my time on that website. Feel free to check out the site before you start your externship. That way you are ready to hit the ground running.

  1. Never miss a meeting.

Some people hate meetings, but at your legislative externship you will learn to like them. One, they are much more fun than normal meetings at the office. Second, they are actually useful. Most of your meetings with either be with lobbyists or constituents. Making sure you are present for these meetings will teach you a lot about your senator’s district and their priorities. This was the forum where I learned the most. So, make sure you are there!

  1. Be open to saying I don’t know.

This is probably self-explanatory, but just be honest if you don’t know something. Your supervisor knows that this is an externship and that you are here to learn. Be honest about your experience level and don’t be afraid to ask questions. This externship is designed for you to learn so take advantage of it.

Externships are a serious investment of time and your tuition dollars. The Massachusetts State House can be an awesome place to work and to learn. Learn a lot, enjoy the experience, and make the most of it!

Nia Johnson anticipates graduating from Boston University School of Law in May 2019.

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Massachusetts’ “Death By Dealer” Bill is the Wrong Opioid Policy

July 11th, 2018 in Analysis, State Legislation

On January 30, 2018, the Massachusetts Joint Committee on the Judiciary heard testimony on S. 2158, An Act Updating Laws Relating to Dangerous Drugs and Protecting Witnesses. Despite its relatively innocuous title, the bill, proposed by Governor Charlie Baker, represents a substantial scaling up of the War on Drugs in the Commonwealth.

Like many other states, Massachusetts is in the midst of a public health crisis. The opioid-related death rate in the state has surpassed the national average, with a nineteen percent increase in overdose deaths between 2015 and 2016. In addition, three-quarters of opioid-related deaths in 2016 involved fentanyl, a synthetic opioid that is roughly 50 times more potent than street heroin. As opioid overdoses decimate local communities, officials are understandably investigating ways to curb the epidemic, and one solution, to which legislatures are increasingly turning, entails drastically increasing punishment for drug crimes that result in death.

For decades, federal prosecutors have been able to pursue stringent penalties in cases of “death by dealer.” Passed by Congress in 1988 in response to the highly publicized death of a University of Maryland basketball star who overdosed on cocaine just days after being drafted by the Boston Celtics, the so-called “Len Bias” law sets mandatory minimum sentences for selling drugs that lead to another person’s death. More recently, twenty states have adopted analogous laws, and several others have “McGyvered” existing homicide statutes—e.g., reckless homicide and felony murder—to prosecute the same offense. With Governor Baker’s bill, Massachusetts joins a number of additional states with pending legislation that would allow prosecutors to charge drug sellers with murder or manslaughter.

While these laws may seem like a good idea at first—as a way to cripple the organized drug trade and to give prosecutors new tools to attack upper echelon drug traffickers—the criminalization of accidental overdose has a number of possible unintended consequences. Massachusetts legislators should carefully consider these effects that may backfire and exacerbate an already dire situation.

Although proponents argue that drug-induced homicide law will prevent future drug trafficking, there is broad consensus that harsh sentences have minimal, if any, deterrent effect. Contrary to conventional wisdom, studies have found that, among individuals facing drug-related charges, variations in prison and probation time have no impact on recidivism rates. The focus on supply reduction also seems misplaced: many studies suggest that market demand for drugs drives a continuous “replacement effect,” such that incarcerating drug dealers simply “open[s] the market for another seller.” Instead, such policies may inadvertently increase drug-related violence and lead to dangerous fluctuations in the contents of street drugs.

Drug-induced homicide laws also risk undermining Good Samaritan policies. As overdose deaths skyrocket, 37 states, including Massachusetts, have enacted laws to reduce the legal barriers to calling 911 in the event of an emergency. Most of the laws are limited to drug possession, however; they do not encompass drug selling or homicide. Although popular imagination places drug users and drug sellers in separate buckets, reality proves far blurrier: drug users frequently participate in the supply side of the market—whether by actively selling drugs or by helping in some way, such as acting as a lookout—in order to support their habits. Ostensibly intended to prosecute high-level drug suppliers, in practice, these statutes often ensnare family, friends, and acquaintances who supplied the drugs and who themselves may have a substance use disorder. In Wisconsin, an analysis of the 100 most recent drug-induced homicide prosecutions found that “nearly 90% of those charged were friends or relatives of the person who died, or people low in the supply chain who were often selling to support their own drug use.”

While prosecutors talk about “aggressively prosecuting those people that peddle the poison in our community,” users counter that “every drug-induced homicide charge that is made sends a ripple through the using community to not call 911 and might result in somebody else's death.” In fact, a recent study found that a majority of surveyed drug users feared calling 911 during an overdose due to concerns about criminal repercussions. Overall, then, treating overdose deaths as crime scenes and prosecuting overdose witnesses as perpetrators of murder or manslaughter limits the potential benefits of Good Samaritan legislation and other efforts to reduce overdose deaths.

Finally, punitive approaches, which place the blame for overdose deaths on drug sellers, focuses on the wrong problem. Criminal sanctions have the benefit of immediate visibility—they make it appear to constituents that policy makers are doing something. Public health approaches, on the other hand, are virtually invisible because, if successful, the harms that they target will never materialize. This “prevention paradox” often leads policy makers towards individualized, instantly tangible solutions to complex problems such as drug-induced homicide laws.

The Massachusetts State House
Boston, 1787

The opioid crisis is, fundamentally, a structural issue, rooted in poverty, lack of opportunity, and social isolation. Structural issues require structural solutions. Legislators are understandably grabbing at any and every straw to quell what seems like an intractable problem, but, at a time when much of the country seems poised to approach problematic substance use as a health issue, rather than a criminal one, it is critically important that Massachusetts policy makers carefully consider the ways in which S. 2158’s drug-induced homicide provision might backfire.

Rather than focusing on misguided “quick fixes” that further criminalize vulnerable populations, legislators should, instead, redirect their energies towards public health strategies with demonstrated effectiveness in reducing fatal overdoses. These include implementing comprehensive, evidence-based addiction prevention initiatives; increasing overdose education and naloxone access; promoting the use of medication-assisted treatment for opioid use disorders; and expanding and maintaining insurance coverage for addiction treatment. The United States has been trying to arrest its way out of substance use and addiction for decades, and today’s crisis attests to the futility of that approach. If our policy makers are serious about ending the opioid epidemic in the Commonwealth, they need to shift their focus from policing and prisons to people and public health.

Alexandra Arnold anticipates graduating Boston University School of Law in May 2019.

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The End of Dams: Removal and River Restoration

July 10th, 2018 in Analysis, State Legislation

America has a love-hate relationship with dams. As a nation, America has built “on average, one dam per day since the signing of the Declaration of Independence.” Individually, dams have existed in America since long before the states revolted against Great Britain. Massachusetts has the oldest dam listed in the National Inventory of Dams, the Old Oaken Bucket Pond Dam (see slide 21) in Plymouth County, which was built in 1640. The dams started small, as mill dams on small streams for specific towns, but have grown in size to hundreds of feet tall, damming some of the largest rivers in America. Dams are often used (see slide 14) for hydroelectric power, irrigation, flood control, and the vaguely defined “recreational use.” Despite this love of “biggering and biggering”, America has failed to maintain many of the dams constructed, leading to the dangers we now face on a local, state, and federal level. Dams are also harmful to rivers, causing a depletion of fisheries, degradation of river ecosystems, and degradation of river water quality. This article will briefly discuss what Massachusetts has done to address these issues, mainly by removing dams that are a hazard.

Fish Ladder at Old Oaken Bucket Pond, Scituate, Massachusetts

In Massachusetts, a failure to maintain dams has led to crises where towns have been evacuated at the threat of a dam bursting. An example is the Whittenton Pond Dam, in Taunton, Massachusetts, where in 2005, after days of rain, the 170-plus-year-old dam nearly collapsed. Close to 2,000 residents were evacuated due to fears of a six-foot high wall of water rushing through the town. Thankfully, the local government and the state were able to mobilize an emergency response team that stabilized the dam; at a cost of over $1.5 million. If the dam had collapsed, the damage, physically and financially, would have been far greater.

Massachusetts has approached dam removal in multiple ways. After the Whittenton Pond Dam emergency, the Office of Dam Safety was rejuvenated and given funding to evaluate the nearly 3,000 dams, in varying states of disrepair, spread across the state. Massachusetts passed “An Act Further Regulating Dam Safety, Repair and Removal”, emergency legislation to increase dam safety and encourage dam removal, in late 2012. The Act passed with support from multiple parties and interests, including the Nature Conservancy, municipal associations, water suppliers, engineering professionals, and other conservation organizations. This law gave various commissions and agencies more authority to respond to dam repair and removal issues, and set up ongoing funding for the repair or removal of dams, seawalls, and other water infrastructures. The various authorities must submit an annual report on the status of the dams in the state. The Massachusetts Office of Dam Safety, the Division of Ecological Restoration, and other agencies are required to assess dams, ensure dam owners have emergency action plans (EAPs), ensure that dam owners address safety issues, establish an inspection process and schedule for dams, and assess fines for noncompliance. Massachusetts provides grants for design costs of removal projects, which is an additional incentive to encourage dam owners to remove dams in noncompliance or that no longer perform the function for which they were built.

The Massachusetts State House
Boston, 1787

Massachusetts G.L. c. 29, §2IIII established the Dam and Seawall Repair or Removal Fund, which operates under the Secretary of Energy and Environmental Affairs and offers grants to local government bodies, charitable organizations, and private dam owners to finance inspection, repair, and removal projects for dams, seawalls, jetties, revetments, retaining walls, levies, and other means of flood control. Often, it is less expensive to remove an old, dilapidated structure than to repair it, so owners will perform removal projects rather than repair projects. Along with removing the dam, the legislature has delegated power to administrative agencies to help encourage restoration of the river after the dam is removed. One of the earliest dam removal projects in Massachusetts (see page 118) was intended to increase public safety and river accessibility for recreation, but also to increase bordering vegetated wetland on the river and to improve and restore access to cold-water habitat.

So far, Massachusetts has avoided removing dams that were built for flood control purposes, opting instead to encourage repairs. However, Massachusetts considers dams built for nearby industrial use, other hydropower purposes, irrigation, or recreational use as fair game for removal. This decision is consistent with policy for many states and the federal government. This policy is especially relevant when the use has been abandoned, public safety is at risk, or the dam is in disrepair and the owner either cannot be found or refuses to pay to maintain the dam.

Dam on the Indian Head River, Plymouth Co. Massachusetts

Thankfully, Massachusetts is well on its way to removing the more problematic dams and restoring its rivers and streams. The Division of Ecological Restoration has assisted multiple dam owners with the removal and restoration process, including the Whittenton Pond Dam that nearly collapsed in 2005. After the passage of the Dam Safety Act, the Whittenton Pond Dam was removed in 2013-2014 as part of an initiative by the Division of Ecological Restoration and the Mill River Restoration Project. The Morey’s Bridge Dam had a fish ladder constructed rather than have the dam removed. Two other dams on the Mill River, the Hopewell Mills Dam and the West Britannia Dam, have either been removed or are in the process of being removed. Upon completion, over 50 miles of stream habitat and 400 acres of pond habitat will open up, rejuvenating the cold-water fisheries and allowing river herring (an endangered species), American eel, and other migratory and resident fish to enter the ecosystem. Although there are objections to the removal of these historical dams, as some communities consider the dam an inherent feature of their town, objections can be assuaged by the preservation of portions of the dam that do not interfere with the river system.

The Division of Ecological Restoration’s actions are an important change to Massachusetts’ environmental policy. Most of the environmental protection laws are focused on maintaining the status quo, and on protecting the water resources from impacts. Removing dams, however, has a proactive and positive impact on water resources by changing the river or stream. The process of permitting the dam removal still takes longer than it should. The Division of Ecological Restoration and other agencies have proposed changes to the state permitting process, allowing aquatic restoration projects like dam removal to go through a permitting process that is easier and more streamlined, which can reduce costs and shorten permitting timelines. This is needed so that dams are removed before they become a hazard to the surrounding area. A faster permitting process will also help dam owners who cannot afford to maintain their dam for an indeterminate amount of time.

Dams have been an integral part of America’s history, however, the time has come to end the era of dam construction. Dams do not have an eternal lifespan, and often no longer serve the purposes for which they were originally built. The costs of maintaining degraded dams often exceed those of removing the dam and restoring the river system. The benefits of dam removal go beyond just the immediate area of the dam, and removing a dam, when planned in conjunction with removing or updating other dams on the river system, can help bring river ecosystems back to life. Massachusetts’ legislature began the process with the Act Furthering Dam Safety, Repair, and Removal, and should continue to fund the grants for removing dams around the state.

Rachel Watsky graduated from Boston University School of Law in May 2018 and plans to practice environmental law.

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States’ Efforts for Veterans Should Be Models

June 28th, 2018 in Analysis, State Legislation

Supreme Court justice Louis Brandeis once called America’s states “laboratories of democracy;”  state legislatures can tinker with public policy and, in theory, see what works and doesn’t work. One area where these laboratories are in full swing is in the area of state-level veteran’s benefits.

Many states provide basic benefits, in addition to benefits provided at the federal level, for veterans who serve the nation honorably and meet eligibility criteria. Things like: free admission to parks, hunting and fishing licenses at low or no cost, reduced rates for education at state funded colleges and universities, tax reductions and rebates, and veteran’s preferences for hiring in state jobs, are relatively common. Some states experiment with veteran’s policy by pushing well beyond these common state programs. Texas for example, through the very generous Hazelwood Act, provides up to 150 hours of exemption from tuition for veterans at state colleges and universities, or, if the veteran doesn’t use the benefit, for their spouse or child. Quite a few states (including Massachusetts) fund veteran’s nursing homes and are working to tackle veteran’s homelessness.

Texas State Capitol Austin 1888

Texas State Capitol
Austin 1888

All of these programs are impressive and necessary and, they couldn’t be more important. Current veteran suicide rates are staggeringly high. More than seven thousand veterans took their lives in 2014. Of those veterans 70% were not enrolled in the federal VA system. That crisis, coupled with high veteran homelessness rates, poses significant risks to veterans living on the border of, or in, poverty. States address these challenges among their veteran populations in a variety of ways, but it is the way that Massachusetts offers commonwealth veterans in need assistance that show its progressive roots. Roots that stretch back to the Civil War.

During the Civil War, Massachusetts passed Mass. General Law Chapter 115 (Chapter 115). The statute has grown since then, but it has always provided a veteran’s agent in every Commonwealth municipality and assistance with veteran burials and grave services. Today, Chapter 115 benefits still provide a veteran’s agent (now referred to as a veterans service officer or VSO) and cemetery services, but the statute also provides a comprehensive benefit that truly seeks to serve those who have served.

This benefit is probably one of the most effective income-assistance benefits in the nation. It is funded through a city/state partnership where the city’s employee, the Veteran Service Officer (certified and trained by the state Department of Veteran’s Services), uses the regulations promulgated by the state Department of Veteran’s Services (108 Code of Massachusetts Regulation) to makes a determination about the eligibility of the veteran. Initially, if a veteran is eligible for Chapter 115, the veteran’s benefit is paid from the city’s budget. This process makes the Veteran Service Officer accountable to their respective Mayors, City Mangers, and City Councils.

The Massachusetts State House Boston, 1787

The Massachusetts State House
Boston, 1787

In addition to being accountable to the municipal leadership, when a VSO approves Chapter 115 benefits auditors at the state Department of Veteran Services also reviews the veteran’s file to ensure that eligibility criteria are met and statutory guidelines and obligations are followed. If a VSO denies chapter 115 benefits, or removes a veteran from the program for failure to comply with job searches or income reporting mandates, the veteran can appeal that decision to the state Department of Veteran’s Services (and to higher administrative courts if necessary).

Throughout the veteran’s participation in the Chapter 115 program the Veteran Service Officer has statutory obligations to help the veteran file any and all VA claims and applications for healthcare and other social safety net benefits and to ensure that veterans that are able to work are actively seeking employment and reporting their income to the VSO. Commonwealth VSOs become, throughout this process, the veteran’s advocate, mentor, and coach. Finally, at the end of the fiscal year, 75% of the Chapter 115 benefits that the city pays out are reimbursed by the state Department of Veteran’s Services.

Are Chapter 115 benefits a perfect solution to all the challenges that commonwealth veterans face? Of course not. No government program, non-profit, charity, or business can address all of the complex issues that American veterans deal with. The challenges in transitioning from service in our all-volunteer military to civilian life are serious, but they are surmountable.  Examples like the Hazelwood Act and Chapter 115 benefits are just two examples of how to create a net of support for veterans.  Other states should look to Texas and Massachusetts to create similar programs, while continuing to experiment.

KennyKenneth Meador was an Army combat medic who graduated from the University of Oklahoma and Boston University School of Law (2018).  He plans to focus his legal career on helping our nation's veterans.

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