Once upon a time, reams of paper, legal secretaries, and showing up to court with a single-minded goal of getting in and out as quickly as possible were characteristics of the way the legal system worked, according to a panel of seasoned professionals. Now? A new world has arisen, they said, thanks to searchable PDFs, increased camera footage, empathy for defendants, and awareness of and resources for mental health and substance abuse issues. Over all of it spreads a new goal, to get at the root of why defendants end up in the criminal justice system in the first place.
At an Oct. 17 event hosted by BC Law’s Alumni Board and moderated by its president, Philip Privitera ’95, a panel of public interest leaders spoke on how modern advances, cultural shifts, and research have reshaped public interest law and how it operates today. Throughout the conversation, two themes emerged: technology and mental health.
Defense attorney Jack Cunha ’77, a partner at Cunha & Holcomb, explained how technology has made a dramatic shift in his practice. “It was a paper world. At this point, paper is something you’re trying not to use too much of.” Now, instead of handing over chest-high stacks of documents for discovery, the prosecution just sends over a CD. And as Cunha adds, “Hopefully, the government has made the PDF searchable.” Cunha came to terms with how this change truly is for the better, as it allows attorneys to use electronic searching instead of having to plow through what can often be millions of pages of paper documents.
Cunha also highlighted how camera footage has made a huge impact on case evidence. “There are cameras everywhere. If you’ve read [the novel] 1984, you should be a little concerned.” Middlesex District Attorney Marian Ryan ’79 added her own insight into the camera craze. “Every day, going about your regular life, you are reported on camera approximately 140 times. It changes accountability, what the jurors are looking for, in ways we wouldn’t have predicted 30 years ago.”
According to Ryan, “There’s probably no way in which the practice of law has not changed.” She herself has a personal connection to some of the changes, noting that she chose the Middlesex DA’s office because, at the time, it was the only DA’s office that allowed women to try homicide cases. “And that wasn’t a thousand years ago,” Ryan reminded the audience. “But we are certainly in a much better place in the work that’s been done across the board to make who is in the courtroom look more like the people we are serving.”
Ryan also gave insight into how prosecutors have changed not just their practice, but their perspectives. She explained that it used to be that prosecutors weren’t encouraged to think about why they were doing what they were doing, or about how they saw the same people in the courthouse over and over again. “We weren’t thinking about how we prevent some of these crimes. They just happened and that kept us busy.”
For Ryan, there is a greater mission at stake than getting through cases quickly, and it has to do with how serious are the consequences of her job. “We are in a business where we do what no one else can do. We take people’s liberty away. How are we policing ourselves? There wasn’t a lot of reflection on that because we were the good guys.” Ryan has worked hard to change that mindset, even shifting the focus of her entire office. “Our goal is now, in a way that never was before, that we make sure we don’t have people coming back.”
“We are in a business where we do what no one else can do. We take people’s liberty away. How are we policing ourselves? There wasn’t a lot of reflection on that because we were the good guys.”
Middlesex District Attorney Marian Ryan ’79
When Middlesex County Sheriff Peter Koutoujian was asked about what has changed in the world of corrections, he was quick to share the data. “Our numbers in corrections are down. We’re the lowest incarceration rate in the country. When I started there were about 1,200 in my care. Now we’re at about 800.”
However, he also noted a different, troubling rise in the stats: “Rates of mental health and substance abuse are much higher and much more significant than ever. Fifty-seven percent arrived at my facilities with a diagnosed mental illness. We’re responsible for a population that is much more sick than people understand.”
This increased awareness and understanding of both mental and physical health needs have prompted a dramatic cultural shift in his facilities and programming. “We have shifted the model from warrior to guardian, shifted the model from carceral holding people to treatment, education, and opportunities like that, at least in Middlesex,” he explained. The difference they’re making is evidenced by lower recidivism rates and lower rates of overdose death for those released from an incarcerated facility.
Michael Coelho, deputy commissioner of Probation-Programs at the Massachusetts Probation Service, agreed with Koutoujian’s data, stating that a change in the probation field is that it’s now data driven, and not as emotional. “It’s not about punishment and it’s not about politics. The data tell us this works.”
Coelho mentioned how important it is to see and understand the person before you and to learn what their needs and challenges are. Another change is that probation staff now begin their relationships within the prison, so that when incarcerated individuals come out, those individuals know to continue their treatment. Coelho expressed the need for everyone to work together “to understand the back and forth we’re seeing between the jail and the court,” and that “change is often driven by public interest groups, on behalf of citizens, challenging institutions, encouraging these groups to continue their work.”
“The criminal justice system is being asked to be something it’s not equipped for. It’s being asked to be a mental health system, and it’s not what it is. We need more facilities for people in the community.”
Defense attorney Jack Cunha ’77
Turning to the prevalent issues of mental health, the panelists discussed how to address and stem these rising challenges. Koutoujian focused on how he works to provide excellent mental health programming. Instead of using force or restraint chairs, his facilities focus on specialized interventional training and cognitive behavioral theory training for employees. “We use de-escalation,” the sheriff explained. “We have become a secure treatment center for those struggling with mental health.” But, this is only a small solution to a much bigger problem. “For good mental health and treatment, your co-pay is a criminal charge.” Koutoujian said, only half-joking. “You shouldn’t have to come to jail to get good programming.
For Coelho, it was important to see a shift in the employees themselves. “We’re prioritizing people with social work backgrounds as probation officers. In the last 10 years, our workforce is now 70 percent female. That is the culture change we’re talking about.”
For Ryan, it was starting a conviction integrity unit. “I believe very strongly that if you want to be taken seriously in taking away people’s liberty, and what we have to do for public safety, you have to be willing to be critical of yourself.” Now, with the unit firmly established, “the change from smallest case to homicide has been remarkable. It’s probably some of the best work we have done,” she said.
Cunha agreed with Ryan, but gave his own perspective from the criminal defense side of the law. “There’s been a change with respect to [assistant district attorneys’] appreciation of the fallibility of certain kinds of evidence. That said, we have a system that is premised on the notion that truth and justice are found when people go at each other. It’s an adversary system.” And as the representative adversary to Ryan’s point of view, he qualified, “Although there’s been a huge improvement, I think they get it wrong. That’s what we do. We need to push them. Defense lawyers, we’re liberty’s last champion.”
In an answer to a question from the audience, Cunha boiled down one of the biggest and most frustrating realities of criminal law. “The criminal justice system is being asked to be something it’s not equipped for. It’s being asked to be a mental health system, and it’s not what it is. We need more facilities for people in the community.”
The panelists expressed their love and support for public service work, but also emphasized that you don’t need to be in the public sector to make a difference in public service. Along with changes in the criminal justice system, big firms have also undergone culture shifts. Now, they hold a very real interest in pro-bono work, doing terrific service to the community. As Cunha put it, “No matter where you are, you can participate in public service in very helpful ways.”
Although they may not always get the money or the praise they deserve, Coelho neatly summed up the panelists’ view on why they are so passionate about their public service careers. “It’s really important work, and I love it.”