Session Laws

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. The first paragraph of section 58 of chapter 119 of the General Laws, as appearing in the 1988 Official Edition, is hereby amended by striking out the second sentence and inserting in place thereof the following sentence:- If the allegations against a child are proved beyond a reasonable doubt, he may be adjudged a delinquent child, or in lieu thereof, the court may continue the case without a finding and, with the consent of the child and at least one of the child's parents or guardians, place said child on probation; provided, however, that any such probation may be imposed until such child becomes age eighteen or age nineteen in the case of a child whose case is disposed of after he has attained his eighteenth birthday.

SECTION 2. Said section 58 of said chapter 119, as so appearing, is hereby further amended by striking out the second paragraph and inserting in place thereof the following paragraph:-

If a child is adjudged a delinquent child, the court may place the case on file, or may place the child in the care of a probation officer for such time and on such conditions as may seem proper, or may commit him to the custody of the department of youth services but the probationary or commitment period shall not be for a period longer than until such child becomes eighteen or age nineteen in the case of a child whose case is disposed of after he has attained his eighteenth birthday, except that the commitment period shall be no longer than until the age twenty-one for a child adjudicated a delinquent child by reason of having violated section one of chapter two hundred and sixty-five. If it is alleged in the complaint upon which the child is so adjudged that a penal law of the commonwealth, a city ordinance or a town by-law has been violated, the court may commit such child to the custody of the commissioner of youth services and authorize him to place such child in the charge of any person, and, if at any time thereafter the child proves unmanageable, to transfer such child to that facility or training school which in the opinion of said commissioner, after study, will best serve the needs of the child. The department of youth services shall provide for the maintenance, in whole or in part, of any child so placed in the charge of any person.

SECTION 3. Said chapter 119 of the General Laws is hereby further amended by striking out section 61, as so appearing and inserting in place thereof the following section:-

Section 61. The commonwealth may request a transfer hearing whenever it is alleged in a complaint that a child, who is fourteen years old or older, has committed an offense against a law of the commonwealth, which, if he were an adult, would be punishable by imprisonment in the state prison, and that the offense has allegedly been committed by a child who had previously been committed to the department of youth services, or involves the threat or infliction of serious bodily harm.

The court shall hold a transfer hearing whenever the commonwealth so requests. The court shall order a transfer hearing, in every case in which the offense alleged is murder in the first or second degree, manslaughter, rape, kidnapping, or armed robbery that has resulted in serious bodily injury.

At said transfer hearing, which must be held before any hearing on the merits of the charges alleged the court shall find whether probable cause exists to believe that the child has committed the offense or violation charged. If probable cause is found, the court shall then determine whether the child presents a danger to the public, and whether the child is amenable to rehabilitation within the juvenile system. In making this determination the court shall consider but is not limited to evidence of the following factors:

The nature, circumstances, and seriousness of the alleged offense; the child's court and delinquency record; the child's age and maturity; the family, school and social history of the child; the success or lack of success of any past treatment efforts for the child; the nature of services available through the juvenile justice system; the adequate protection of the public; and the likelihood of rehabilitation of the child.

If, at the conclusion of the hearing, the court enters a written finding based upon clear and convincing evidence that the child presents a significant danger to the public and that the child is not amenable to rehabilitation within the juvenile justice system, the court shall dismiss the delinquency complaint and cause a criminal complaint to be issued. The case shall thereafter proceed according to the usual course of criminal proceedings and in accordance with the provisions of section thirty of chapter two hundred and eighteen and section eighteen of chapter two hundred and seventy-eight. If the court fails to make such findings that the child presents a significant danger to the public and that the child is not amenable to rehabilitation, the court shall proceed on the delinquency complaint.

If a child is charged with murder in the first or second degree, and a finding of probable cause has been made, there shall exist a rebuttable presumption that the child presents a significant danger to the public and that such child is not amenable to rehabilitation within the juvenile justice system. If, at the hearing, the court enters a written finding based upon a preponderance of the evidence that the child presents a significant danger to the public and that the child is not amenable to rehabilitation within the juvenile justice system, the court shall dismiss the delinquency complaint and cause a criminal complaint to be issued. The case shall thereafter shall proceed according to the usual course of criminal proceedings and in accordance with the provisions of section thirty of chapter two hundred and eighteen and section eighteen of chapter two hundred and seventy-eight. If the court fails to make such findings the court shall proceed on the delinquency complaint.

Whenever a criminal complaint is issued in accordance with this section, the provisions of section sixty-eight shall apply to any person, under the age of eighteen, who is committed for failure to recognize pending final disposition in the district or superior court.

Unless the child waives the provisions of this paragraph, the judge who conducted the transfer hearing shall not conduct any subsequent criminal delinquency proceeding arising out of the facts alleged in the delinquency complaint.

SECTION 4. The third sentence of section 65 of said chapter 119 of the General Laws, as so appearing, is hereby amended by inserting in line eleven after the word "and" the following words:- , except when the child is charged with murder in the first or second degree.

SECTION 5. Said chapter 119 is hereby further amended by striking out section 72, as so appearing, and inserting in place thereof the following section:-

Section 72. Courts shall continue to have jurisdiction in their juvenile sessions over children who attain their seventeenth birthday pending adjudication of their cases, or pending hearing and determination of their appeals, or during continuances or probation, or after their cases have been placed on file; and if a child commits an offense prior to his seventeenth birthday, and is not apprehended until between his seventeenth and eighteenth birthdays, the court shall deal with such child in the same manner as if he had not attained his seventeenth birthday, and all provisions and rights applicable to a child under seventeen shall apply to such child.

Courts shall continue to have jurisdiction in their juvenile sessions over persons who attain their eighteenth birthday pending adjudication of their cases, or pending hearing and determination of their appeals, or during continuances or probation, or after their cases have been placed on file. Nothing herein shall authorize the commitment of a person to the department of youth services after he has attained his nineteenth birthday, or give any court in its juvenile session any power or authority over a person after he has attained his nineteenth birthday; provided, however, that the commitment period shall be no longer than until the age of twenty-one for a child adjudicated a delinquent by reason of having violated section one of chapter two hundred and sixty-five.

SECTION 6. Chapter 120 of the General Laws is hereby amended by striking out section 16, as so appearing, and inserting in place thereof the following section:-

Section 16. Every person committed to the department until the age of eighteen as a delinquent child, if not already discharged, shall be discharged when he reaches his eighteenth birthday, unless a petition is filed by the department under section seventeen. Every person committed to the department until the age of nineteen as a delinquent child, if not already discharged, shall be discharged when he reaches his nineteenth birthday, unless a petition is filed by the department under section seventeen. Every person committed to the department until the age of twenty-one as a delinquent child, if not already discharged, shall be discharged when such person reaches his twenty-first birthday. The department may continue to have responsibility for any person provided for in this chapter under twenty-one years of age for the purposes of specific educational or rehabilitative programs, under conditions agreed upon by both the department and such persons terminable by either.

SECTION 7. Said chapter 120 is hereby further amended by striking out section 17, as so appearing and inserting in place thereof the following section:-

Section 17. Whenever the department is of the opinion that discharge of a person from its control at the age limit stated in section sixteen would be physically dangerous to the public, the department shall make an order directing that the person remain subject to its control beyond the period and shall make application to the committing court for a review of that order by the court. The order and application shall be made at least ninety days before the time of discharge stated in said section sixteen; provided, however, that if the date on which the child has been committed to the department is less than ninety days from the time of discharge stated in said section sixteen, the order and application may be made at any time prior to the date of discharge. The application shall be accompanied by a written statement of the facts upon which the department bases its opinion that discharge from its control at the time stated would be physically dangerous to the public, but no such application shall be dismissed nor shall the order be discharged, merely because of its form or an asserted insufficiency of its allegations; every order shall be reviewed upon its merits.

SECTION 8. The second paragraph of section 18 of said chapter 120, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- If after a full hearing the court is of the opinion that discharge of the person to whom the court order applies would be physically dangerous to the public, the court shall confirm the order of the department.

SECTION 9. Said chapter 120 of the General Laws is hereby further amended by striking out section 19, as so appearing, and inserting in place thereof the following section:-

Section 19. When an order of the department is confirmed as provided in section eighteen, the control of the department over the person shall continue, subject to the provisions of this chapter; provided, however, unless the person is previously discharged in accordance with section six (e), the department shall discharge the person upon his twenty-first birthday. The department shall have the power, in order to protect children and adolescents, to transfer the custody of any person eighteen years of age or older to the department of correction for placement in an appropriate institution.

SECTION 10. The provisions of this act shall not apply to any person whose commitment to the department of youth services has been extended prior to the effective date of this act. The provisions of sections sixteen to nineteen, inclusive, of chapter one hundred and twenty of the General Laws as they appeared prior to the effective date of this act shall apply to all persons whose commitment to the department of youth services has been extended prior to the effective date of this act.