This year, while the Presidential election was sucking up all the political oxygen in the nation, your Massachusetts state legislature (if you happen to live in the Commonwealth), accomplished two very interesting things:
- They enshrined Roe v. Wade into Massachusetts General Law
- They managed to successfully enact a police reform bill.
At the time that Roe v. Wade was decided in 1973, Massachusetts was a much more conservative and a much more Catholic state than it is today (it’s still pretty Catholic). The Commonwealth’s statutes reflected some of that conservatism, and no challenge had ever been brought before the Supreme Judicial Court — as was later done with gay marriage — to see if there is an independent right to choose an abortion to be found in the Massachusetts Constitution.
Now, with the right to choose an abortion once again in jeopardy with the appointment of Amy Coney Barrett to the Supreme Court, the Democratically-controlled legislature decided to (at least) enshrine the essential provisions of Roe into out General Laws. To do that, they needed to replace the provisions of GL c.112 §§12K-12U as they currently exist. The revised language, among other things:
- Permits an abortion if a pregnancy has existed for less than 24 weeks.
- Authorizes physician assistants, nurse practitioners, and nurse midwifes to conduct abortions.
- Permits abortions past 24 weeks in cases of lethal fetal abnormality inconsistent with life outside the uterus.
- Repeals language requiring physicians to provide written justifications for abortions taking place in excess of 24 weeks of pregnancy.
- Repeals language requiring a 24 hour waiting period.
- Reduces the age of consent from 18 to 16.
It was this last provision, reducing the age of consent, that brought a veto from Republican Governor Charlie Baker. But that veto was overridden.
After the murder of George Floyd on Labor Day, 2020, and the protests that followed, there were a couple of dozen states that submitted police reform bills into their legislatures. A quick search today didn’t really reveal how many of them have managed to follow through.
But the Commonwealth was one of them that did.
Although I’m not normally a fan of back-room negotiations, this time around it allowed for some serious deal-making while getting very aggressive push-back by the Boston Patrolmen’s Union and other police unions around the state.
In the end, the 129 page bill included these as the most important of its many provisions:
- Provides for the licensing of police officers state-wide through a Police Officer Standards and Accreditation Committee.
- Amends provisions on qualified immunity for police officers by eliminating qualified immunity except in cases where the officer could have no reason to believe that their conduct would violate the law.
- Places new restrictions on the use of force by law enforcement officers, including requiring the use of certain de-escalation tactics.
- Prohibits the use of choke holds completely in policing.
- Restricts the use of various crowd control measures including tear gas, rubber bullets, or the release of dogs, and establishes an oversight process following the use of these methods.
- Requires officers who observe fellow officers using improper force both to intervene, and to report the incident to their supervisors.
- Imposes criminal penalties on law enforcement officers who have sexual intercourse with anyone in their custody.
- Restricts the issuance of no-knock warrants.
- Makes it more difficult for cities and towns to acquire military-style equipment and vehicles.
- Establishes that information regarding officer misconduct is not exempt from public records provisions.
- Restricts the use of facial recognition software.
The Governor had an issue with the prohibition on the use of facial recognition — which historically has a much harder time distinguishing between black and brown faces than white faces — so they worked out a compromise under which facial recognition can still be used for now, but has to be studied intensively by a task force.
Will this make a difference?
Who knows. Sometimes legislation can make a big difference, such as the federal Americans with Disabilities Act or the Massachusetts legislation that established the 51A Abuse and Neglect process.
But only time will tell whether this legislation will make a difference.
One thing that always amazed me about policing in the USA was that labor agreements between local authorities and police unions could include clauses which obstructed investigations into alleged police wrongdoing by, for example, providing that an officer did not require to answer questions until 30 days had elapsed from the incident. Are clauses like that legal in Massachusetts ?