Your Film Tax Credit Dollars at Work–for Mark Wahlberg

It’s looking like the film tax credit is going to be with us for quite a while longer. Last year the Governor’s idea of scrapping it altogether in favor of a tax credit for working poor families met with very stiff resistance from film tax credit fans. This year his more modest plan to prune it back to its Romney-era size (in part by imposing a cap of $7 million per movie and by eliminating the option to sell the credit) hasn’t really been heard from since its January launch.

But if we can’t stop this perpetual train robbery, we can at least learn where the money is going (h/t to Jamie Eldridge and other members of the Senate who succeeded in getting us this window to peer into).  In 2014, the most recent year for which film tax credit information is available, one very big winner was Massachusetts native Mark Wahlberg, the star of Ted 2, which was filmed here that year. (If, like me, you haven’t caught Ted 2 or the original Ted yet, Wahlberg’s co-star is an animated bear and both stars’ vocabularies are largely scatological.)

We taxpayers ponied up $14 million toward Ted 2‘s production costs. For that money we could have paid for upgrades to 30 subway cars to extend their service for the better part of a decade or funded a year’s worth of rental vouchers for 2000 homeless families.  So far, Ted 2 has taken in over $240 million in box office and video sales, an amount that ought to reassure investors in Mark Wahlberg’s next Massachusetts venture that the film tax credit is not strictly necessary to its commercial success.

And as we were particularly reminded this past Monday, Mark Wahlberg’s next Massachusetts venture is already in production. Opinions vary on whether it’s too soon for a movie about the Marathon bombing and whether a Marathon bombing movie made by Mark Wahlberg will ever be appropriate, but come December, we’re going to have one called Patriots Day. Wahlberg and his production company at CBS have tiptoed around the movie’s possibly explotative nature and have offered a solemn but indefinite vow to “get it right.”

Apparently getting it right does not include respecting the wishes of any 2016 Marathon runners who don’t care to appear in the movie.


Here’s an idea.  If the Patriots Day folks are really interested in getting it right, they could announce that they’re making this movie on their own dime and won’t ask us taxpayers to chip in a quarter of the production costs via the film tax credit.

The Conservative Wing of the Republican Party Is Not Going Away Without (Another) Fight

While Globe reporter Andrew Ryan was in church on Sunday, someone left this leaflet opposing the transgender public accommodations bill that is pending in the state Legislature on his car.

Authorship of the leaflet was claimed by a group called “Renew MA Coalition.” You can learn more about the coalition on its Facebook page, which features a photograph of Presidential candidate Ted Cruz and conservative State Rep. Jim Lyons flanking Chanel Prunier, the former Republican national committeewoman from Massachusetts. Prunier was turned out of office last week in a very close election by Gov. Baker’s choice, State Rep. Keiko Orrall. Orrall’s victory capped the Governor’s largely successful effort to replace socially conservative members of the state Republican committee with moderates more in line with Baker’s views. Those views include support for gay marriage, but so far at least, do not include support for the transgender public accommodations bill.

As the Governor continues to face considerable pressure to endorse the bill (his failure to do so caused the National Gay and Lesbian Chamber of Commerce to uninvite him to an event later this month at which he was originally to be honored), the conservative wing of his party continues to hold firm to its abiding opposition to rights for transgender persons. Continue reading

Are the Days of Mandatory Minimum Sentences for Drug Crimes Nearly Over?

On Tuesday the state’s Supreme Judicial Court will hear an appeal by the Middlesex District Attorney’s office challenging a trial judge’s decision to depart from the mandatory minimum sentence set by statute for a drug crime and to impose a shorter sentence instead.

The District Attorney, citing the SJC’s decision in a 1995 case, argues that where a statute imposes a mandatory minimum sentence, judges have absolutely no discretion to lower that sentence, and therefore the trial judge in this case improperly reduced the sentence imposed on the defendant, Imran Laltaprasad, from 3 1/2 years to 2 1/2 years. (Laltaprasad was convicted of possessing less than 5 grams of heroin and cocaine. He was carrying the drugs in his prosthetic leg, the result of a violent assault for which his attackers received 2-year sentences.)  Unless and until the Legislature amends current laws imposing mandatory minimum sentences, the D.A. argues, judges must adhere to those laws, which were enacted in 1980, during the earliest days of the war on drugs.

Ah yes, the war on drugs — file under “seemed like a good idea at the time.” It was the cornerstone of Governor Ed King’s plan to make Massachusetts a safer place, regardless of how much money we might need to spend building prisons.

Thirty-six years later, things look different. And what  we know now that we didn’t know (but may have suspected) back then forms the basis of many of the arguments Mr. Laltaprasad’s attorneys are making to affirm the trial judge’s decision reducing the sentence in his case.

We know that mandatory minimum sentences are applied in a racially discriminatory manner (and Mr. Laltaprasad is a member of a racial minority, who comprise three-quarters of the persons on whom mandatory minimum sentences are imposed).

We also know that in cases involving mandatory minimum sentences, it is the prosecutor rather than the judge who decides on the sentence (in this case, the D.A.’s office elected to charge Mr. Laltaprasad with a “second or subsequent” offense, for which the mandatory minimum is 3  1/2 years).

We also know that drug addition is a chronic, relapsing brain disease for which incarceration is an inappropriate and ineffective remedy.

Together, these arguments raise important federal and state constitutional questions concerning equal protection, cruel and unusual punishment, and the separation of powers, as the briefs filed Mr. Laltaprasad’s attorneys as well as by friends of the court argue.

The Middlesex D.A.’s office responded to these arguments not by rebutting them, but by moving to strike those parts of the record supplying their evidentiary support. In opposing the D.A.’s motion to strike, Mr. Laltaprasad’s attorneys cited a rather well-known U.S. Supreme Court decision:  it “is regrettable that the Commonwealth’s only response to this data is to ask that it be ignored…Perhaps at some point in the history of American jurisprudence it was common for courts to overlook data showing the crippling effects of unconstitutional laws.  But that time has long passed.  See Brown v. Board of Education of Topeka, 347 U.S. 483, 493-95 & n.11 (1954).”


The Laltaprasad case is the fourth on Tuesday’s docket, which means it will be heard around 10:30.  You can watch the argument here.


What Drives Us Crazy about Bank of America’s Chad Gifford

Globe business columnist Shirley Leung, on whom we can always rely to be highly attuned to the sensitivities of corporate executives, recently shared with us what drives retiring Bank of America board member Chad Gifford crazy — “big-bank bashing.”

Gifford, who’s stepping down as chairman of Bank of America’s board with an eight-figure retirement package, plans to devote his retirement years countering the impression that some of us (notably Senator Elizabeth Warren) have gotten that big banks bear an enormous amount of responsibility for the currently precarious financial condition of what we once referred to as America’s middle class.

While conceding that in 2008, the banking industry “made some mistakes,” Gifford insists that’s not the whole story. “Bigger isn’t always bad,” he explained.  “Banks need to be well-capitalized to handle the increasingly complex transactions of their clients.”

And, as Bank of America vice chairman Anne Finucane pointed out to Leung in further defense of bigness, Bank of America now gives away $12 million locally — more than its earlier incarnation, FleetBoston, donated. (Which is all very nice, but considering that FleetBoston had $200 billion in assets before merging with Bank of America, and Bank of America now has $2.1 trillion in assets, it’s rather less impressive than it first appears.)

And something the Bank of America folks did not pass on to Leung.  In addition to the $12 million annual local donation, Bank of America is also the source of $5.6 million in one-time funds to be distributed to legal assistance programs in Massachusetts. This extra funding is not a charitable donation, but instead, as Massachusetts Lawyers Weekly (sub. req.) reports, it is part of the settlement between Bank of America and the U.S. Department of Justice under which the bank will pay $17 billion in penalties and partial restitution for the financial fraud it committed in the years leading up to the Great Recession of 2008 (and beyond). The settlement includes the bank’s admissions that it sold billions of dollars of residential mortgage-backed securities without disclosing important facts about the dubious quality of the securitized loans and that it originated risky mortgage loans and made misrepresentations about the quality of those loans to Fannie Mae, Freddie Mac and the Federal Housing Administration.  The additional funding for legal services is welcome, but of course it will not even begin to repair the damage inflicted on homeowners and their tenants, many of whom continue to struggle to put the consequences of the bank’s fraud behind them.

And that’s what drives us crazy about Chad Gifford and Bank of America.

Legislative Transparency: If it’s Good for the Goose…

The editorial boards of both the Herald and the Globe are calling on the Legislature to repeal a misguided 1989 law that revokes the driver’s license of anyone who is convicted of a drug offense and imposes a $500 fee to reinstate a license after the suspension time (one to five years) has been served.  The law was conceived in the fond hope that it would deter drug use. Thirty years later, we know that it doesn’t, and what’s worse, it steers those with drug convictions back toward recidivism by adding to the re-entry obstacles they face.   

Last September the Senate passed a bill to repeal the law, and in January the House approved part of that bill. Both editorial boards greatly prefer the Senate version. The Senate repealed the license suspension law in its entirely.  The House, on the other hand, kept the license suspension law for some drug trafficking crimes — it adopted an amendment to that effect that had been filed by a group of seven Republican representatives. One of those Republican representatives, State Rep. James Lyons of Andover, told the Globe that license suspensions should continue to be imposed on “thugs who are selling drugs to our family members.” The Globe disagreed with him, dismissing his argument as “a tough-on-crime sentiment that harks back to the original, 1980s-vintage view that led to the failed law.” The Herald, often a Lyons fan, parted ways with him on this issue and urged the House to agree to the Senate in conference committee negotiations on the bill.    

For those not familiar with Rep. Lyons, he’s the Massachusetts chairman of the Cruz for President Committee,  his legislative priorities include reducing the state income and sales taxes and requiring the Legislature to comply with the public records law in order to end the practice of lawmaking by backroom deal outside of public view.

You may be curious how Rep Lyons and his six colleagues succeeded in keeping a portion of the license suspension law in place. It has something to do with lawmaking by backroom deal outside of public view.

The morning of January 6, Speaker DeLeo expressed support for the proposal and acknowledged that it could restore the licenses of drug dealers as well as drug users. The House took up the bill around 3 o’clock that day.  Four amendments were pending, all of them filed by Republican Representatives. One of the amendments was defeated on a voice vote without debate.  Then the House stood in recess.

Legislative action in the House is punctuated by recesses, some brief and some lengthy. During the lengthier recesses, House members often return to their offices to tend to other business. When the House returns from a recess, often the first order of business is a roll call vote to ensure that a quorum is present.  Often, but not always.

About a half hour after the recess began, the presiding officer (Rep. Paul Donato of Medford) called the House to order, but he did not ask for a quorum call.  Instead he announced that an amendment was pending and asked the Clerk to read the amendment. While the amendment was being read, he asked the Clerk to dispense with the reading of the remainder of the amendment, then called for a voice vote, pronounced that the yeas had prevailed over the nays and that the amendment had been adopted. It all took one minute. No one spoke in favor of the amendment or in opposition to it. After the vote, a House member requested a quorum call.  Rep. Donato said he could ascertain that a quorum was not present and instructed the court officers to summon the members.

The tape.

Thus, the GOP amendment was adopted (after some very minor tweaking — and definitely outside of public view) in the most opaque of ways. Ordinarily this peeves advocates of greater legislative transparency like Rep. Lyons.

The reasons why this happened must await another post.  Theories always welcome.

(A version cross-posted here on BlueMassGroup.)


When It Comes to Nursing Home Safety, Governor Fix-It Has Been Down in the Basement

A series of articles by Kay Lazar in the Globe has brought us the unsavory story of Synergy Health Centers, a New Jersey company that arrived in Massachusetts three years ago and now operates 11 nursing homes here. The Globe details the dangerously substandard care  that Synergy is providing to the residents of these nursing homes (medication errors, insufficient training, short staffing, a scabies outbreak, the death of a patient who was dropped while being transferred by mechanical lift to a wheelchair). Meanwhile, Synergy’s officers are making seven-figure salaries.

The Synergy stories also reveal the laxity of our nursing home licensing process. The health department’s investigation of Synergy failed to uncover, to take just one example, the arrest of one of Synergy’s owners for 1400 code violations and unpaid fines in a New Jersey apartment complex he once owned.

Nursing home safety in general and Synergy’s track record in particular came to the Legislature’s attention a while back, and it responded by directing the health department to establish regulations to ensure that a hearing with opportunity for public comment be conducted before any nursing home could be closed or sold.

And thereby hangs a tale of wrangling between the Legislature and the Baker administration, BFF’s on most issues, over the latter’s reluctance to exercise its regulatory power.

To be fair to Governor Baker, the Legislature’s directive to the health department to provide for public hearings happened in mid-2014, and the Patrick administration failed to act on it during its last six months.  But after Governor Baker took office in 2015, the foot-dragging continued. One of the Governor’s first initiatives was a “regulatory pause” — a  prohibition on any new agency regulations in order to start relieving the Commonwealth’s “job creators” (his term) from excessively burdensome oversight. The regulatory pause soon lengthened into a regulatory moratorium by way of an Executive Order requiring agencies to take a year to review every regulation and to discard those that “unduly and adversely affect Massachusetts citizens and customers of the Commonwealth.” Government regulations, the Governor often says (during his most Pioneer-and Cato-Institute moments), are like the junk that accumulates in your basement and which, in the interests of good housekeeping, you need to clean out every so often.

By May 2015, five months into Baker’s term, there were still no nursing home licensing regulations and no timetable for their arrival. To be sure, the press of other business — like the opioid crisis — was keeping the health department busy. And the ranks of health department staff were about to be thinned through the early retirement incentive program that the Governor and Legislature had agreed on as a cost-savings move. Yet even taking those problems into account, it was difficult to avoid the conclusion that protecting Synergy Health Centers from meddlesome governmental regulators was more important to the Baker administration than protecting elderly and disabled nursing home residents from Synergy Health Centers. Governor Fix-It may have been attending to a lot of problems, but on the issue of nursing home safety, it might be said, he was downstairs cleaning out the basement.

Therefore, frustrated by the lack of progress on nursing home licensing and concerned that the Governor’s blinkered view of regulations extended beyond just the issue of nursing home licensing, the Legislature decided to require agencies to maintain a log of the statutes passed in the previous 24 months for which regulations were required and for which regulations had not yet been adopted. Also, agencies were directed to make this information available on their websites.

The Governor’s response to this mandate?  Veto — on the ground that the requirement would unnecessarily burden state agencies. Yet at the same time, as the Globe noted, the Governor’s health department was unable to find any reason to deny Synergy another nursing home license, its 11th, even after many more reports of reports had become public that a Synergy-owned nursing home mistakenly put ear drops into a patient’s eye and then did not call a doctor until the patient had suffered for five hours.

And the Legislature’s response to the Governor’s veto?  Override — along strict party lines.

So where are we now?

There are no signs yet that agencies are complying with the requirement to post the regulations they’ve been directed to adopt, even though that’s been the law for several months now.

In January the health department finally produced the long-sought nursing home licensing regulations, 18 months after the Legislature requested them. The department also acknowledges having received more than 11,000 complaints related to nursing homes during the past year alone. It’s planning to launch a program of surprise inspections to curb abuses at problem facilities. The Governor has proposed hiring two more nursing home inspectors for this effort.  (There are 414 nursing homes in Massachusetts.)

The regulatory review and basement-purging that the Governor ordered a year ago is due at the end of March. For the sake of nursing home residents, one hopes that agency staff will then be free to attend to other matters and that the moratorium on new regulations will be lifted when it’s appropriate to do so.


The Supreme Judicial Court Nomination Factoids You’ve Been Waiting For

[Update, February 5: Justice Spina, who turns 70 this October, announced today that he will also retire in August. Because the Court’s term runs from September to August, this will likely make for a smoother transition.] 

On Wednesday, Supreme Judicial Court Justice Robert Cordy announced that he will retire in August. This means that Governor Baker will be appointing a majority of the members of the SJC — and pretty soon. Later this year, Justice Francis Spina turns 70, and under a state constitutional amendment approved by the voters in 1972, must retire.  Justices Margot Botsford and Geraldine Hines reach the retirement age of 70 in 2017.  That’s a majority.

Here are some SJC nomination factoids.  Use them to amaze your friends.

Since the 1972 state constitutional amendment took effect 44 years ago, two other Governors besides Baker have had the opportunity to appoint an SJC majority: Governors Cellucci and Patrick.  Soon Baker will join them and will beat their times by several years.

Since 1972, every Governor but two got to make a couple SJC appointments: Jane Swift and Mitt Romney didn’t get to make any.

When asked yesterday for names of SJC role models, Baker named Justices Spina and Cordy, which makes sense — they are the two current SJC Justices who were nominated by Republican governor Cellucci.  But as it happens, Governor Cellucci, along with Governor Weld, launched the judicial careers of four of the five other SJC Justices, all of whom were elevated to the SJC by Deval Patrick: Governor Weld appointed Ralph Gants and Barbara Lenk to the Superior Court and Fernande Duffly to the Probate and Family Court in the 1990’s. Governor Paul Cellucci appointed Geraldine Hines to the Superior Court in 2001. Bipartisanship reigns.

The constitutional amendment that mandates retirement at age 70 was approved by the voters three-to-one in 1972. Some of those voters were 26 then, now they’re 70. Life expectancy then was 71.2 years, now it’s 78.7. There’s a constitutional amendment before the Legislature this session that would raise the retirement age to 76, but the Judiciary Committee has given it an unfavorable report.

Judges in other states where a mandatory retirement age applies have sued their states, arguing that such laws discriminate against them on the basis of age in violation of their constitutional rights.  No success so far.