Session Laws

Whereas, The deferred operation of this act would tend to defeat its purpose, which is to immediately provide funds for the expansion, upkeep and reinvestment in the existing correctional facilities in the commonwealth, county houses of correction and department of youth services facilities, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public safety and convenience.

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. To provide for planning and studies, acquisition of land and buildings and interests therein by purchase or eminent domain pursuant to chapter seventy-nine of the General Laws, the preparation of plans and specifications, construction, renovation, reconstruction, alteration, improvement, demolition, expansion, repair, and furnishings and equipment, the sums set forth in section two, for the several purposes and subject to the conditions of this act, are hereby made available, subject to the provisions of law regulating the disbursement of public funds.

SECTION 2. `tm;keep=no `tcol=6,B4;c1=1,9,tu,T;c2=1,78,tuc;c3=1,78,tuc;c4=12,53,tfh1;c5=16,49,tu;c6=66,13,tur `tc3 JUDICIARY. `tc2 Trial Court. `tc1 0330-8968 `tc4 For the implementation of a program of intermediate sanctions; provided, that not less than two million dollars shall be expended for the purchase of equipment for intermediate sanctions programs; provided further, that two hundred fifty thousand dollars shall be made available to the Barnstable county probation department for the capital costs of an intermediate sanctions program; provided further, that eight hundred thousand dollars shall be expended for electronic monitoring equipment for the Essex county correctional alternative center; provided further, that not less than five hundred thousand dollars shall be expended for the purchase of equipment for the Suffolk county courts' community service program, so-called; provided further, that not less than five million dollars shall be expended for equipment for treatment of substance abusers; provided further, that not more than two percent of the funds authorized herein may be expended for the administration and implementation of the capital projects funded herein; and provided further, that said chief justice shall submit a report detailing said administrative expenditures to said committees; and provided further, that any program receiving funds authorized herein shall submit to the chief justice for administration and management of the trial court a plan detailing the planned expenditure of said funds prior to the receipt of said funds `tc6 $15,000,000 `tc3 EXECUTIVE OFFICE FOR ADMINISTRATION AND FINANCE. `tc2 Division of Capital Planning and Operations. `tc1 1102-7967 `tc4 For planning and studies, acquisition of land and buildings and interests therein, the preparation of plans and specifications, construction, renovation, reconstruction, alteration, improvement, demolition, expansion, repair and furnishings and equipment, for county correctional facilities as provided for herein; provided, that not less than twenty million dollars shall be expended for the Barnstable county jail and house of correction; provided further, that Barnstable county is hereby authorized to build a two hundred and twenty-two bed facility with said funds or to apply said funds, with the consent of the secretary of the executive office of public safety, to the planning, design and site work for up to a five hundred bed facility; provided, however, that nothing herein shall be construed to commit the commonwealth to funding the costs in addition to those authorized herein; provided further, that not less than twenty-six million dollars shall be expended for the construction of the Berkshire county jail and house of correction to be located in the town of Pittsfield as a part of a parcel of land bounded on the north by the Pittsfield/Lanesborough town line, on the east by Cheshire road (Route 8) and on the west by Partridge road; provided further, that not less than twenty-two million dollars shall be expended for the Essex county jail and house of correction; provided further, that not less than twenty-one million dollars shall be expended for the Franklin county jail and house of correction; provided further, that not less than forty million dollars shall be expended for the Middlesex county jail and house of correction in Billerica; provided further, that not less than ten million dollars shall be expended for the Norfolk county jail and house of correction; provided further, that not less than twenty million dollars shall be expended for the Suffolk county jail and house of correction; provided further, that not less than eighteen million dollars shall be expended for the Worcester county jail and house of correction; provided further, that not less than fifteen million dollars shall be expended for the development of a one hundred and twenty-five cell women's facility in Hampden county; provided further, that eighty thousand dollars shall be provided to Hampden county for the purchase of an inmate telephone recording system; provided further, that six hundred and fifty thousand dollars shall be expended for the Western Massachusetts Law Enforcement Community application for the purchase of a mobile data system; provided, that not more than twenty-five thousand dollars of the amount made available in this section shall be expended for a study relative to the feasibility of establishing a new facility or renovating the existing jail facility in Dukes county for use as a regional lock-up facility provided further, that the costs of professional personnel, excluding clerical and support personnel directly and exclusively involved in the construction, planning, and design of the projects funded herein may be charged to this item; provided further, that said costs shall not be classified as administrative costs; provided further, that an amount not to exceed two percent of the amount authorized herein may be expended for the administrative costs directly attributable to the programs or projects funded herein, including the costs of clerical and support personnel; and provided further, that the commissioner of the division of capital planning and operations shall file an annual spending plan with the house and senate committees on ways and means which details, by subsidiary, all personnel costs and administrative costs charged to this item `tc6 $192,755,000 `tc1 1102-8968 `tc4 For planning and studies, acquisition of land and buildings and interests therein, the preparation of plans and specifications, construction, renovation, reconstruction, alteration, improvement, demolition, expansion, repair and furnishings and equipment, for infrastructure, waste management projects and life safety and other facility improvements at state and county correctional facilities; provided, that not less than sixty percent of the amount authorized in this item shall be expended for state correctional facilities; provided further, that not less than forty percent of the amount authorized in this item shall be expended for county correctional facilities; provided further, that seven hundred fifty thousand dollars shall be expended for the demolition of the Norfolk county facility located in the town of Dedham; provided further, that not less than two million five hundred thousand dollars be expended for the Essex county correctional alternative center in the city of Lawrence; provided further, that not less than seven hundred fifty thousand dollars shall be expended for the demolition of the Essex county facility located in said city of Lawrence; provided further, that not less than two million dollars be expended for the connection of the Middlesex county jail and house of correction in the town of Billerica to the town of Billerica's municipal sewer system; provided further, that the division of capital planning and operations shall dismantle and remove the existing treatment plant currently servicing the Middlesex county jail and house of correction in Billerica and ensure that the site is returned to an environmentally safe condition; provided further, that one hundred and fifty thousand dollars shall be allocated for upgrading the farm facilities at Massachusetts correctional institute known as the Northeast correctional center in the town of Concord; provided further, that the costs of professional personnel, excluding clerical and support personnel directly and exclusively involved in the construction, planning, and design of the projects funded herein may be charged to this item; provided further, that said costs shall not be classified as administrative costs; provided further, that an amount not to exceed two percent of the amount authorized herein may be expended for the administrative costs directly attributable to the programs or projects funded herein, including the costs of clerical and support personnel; and provided further, that the commissioner of the division of capital planning and operations shall file an annual spending plan with the house and senate committees on ways and means which details, by subsidiary, all personnel costs and administrative costs charged to this item `tc6 $91,000,000 `tc1 1102-8969 `tc4 For grants to communities hosting state correctional facilities impacted by inmate capacity increases; provided, that the secretary of the executive office of public safety, in consultation with the commissioner of the division of capital planning and operations, is authorized to issue funds authorized herein as grants to communities at a rate of ten thousand dollars for each new secure general population cell at state facilities; provided further, that all grants shall be used for publicly-owned capital projects within the communities; provided further, that not less than nine hundred and sixty thousand dollars shall be provided to communities impacted by prior year prison expansion at Massachusetts correctional institution at Norfolk; provided further, that not less than one million six hundred thousand dollars shall be provided to communities impacted by prior year prison expansion at the Massachusetts correctional institution at Cedar Junction; provided further, that not less than three million dollars shall be provided to communities impacted by increased medium security capacity at correctional facilities located in the town of Bridgewater; provided further, that not less than five hundred thousand dollars shall be provided to the host communities impacted by prior year prison expansion at the Massachusetts correctional institution at Lancaster; provided further, that not less than two million five hundred thousand dollars shall be provided to the host communities impacted by prior year prison expansion at the Massachusetts correctional institution at Shirley; provided further, that twelve million six hundred and eighty thousand dollars may be authorized for grants to communities impacted by inmate capacity increases due to authorizations in item 8900-7967 of section two; provided further, that said grant money awarded for the expansion of the Massachusetts correctional institution at Shirley shall be divided equally between the towns of Shirley and Lancaster; provided further, that unless otherwise provided for in this item, said grant money shall be paid to communities within six months of the occupancy of the facilities constructed with funds authorized by this act; provided further, that the department of correction, in conjunction with the department of public health and the department of education, shall conduct a study into the biological causes of crime based on the premise that scientists have been studying biological risk factors which they believe predispose individuals to criminal behavior; provided further, that said study should incorporate these findings to work toward a more effective approach toward criminology; provided further, that the results of said study shall be submitted to the general court no later than June thirtieth, nineteen hundred and ninety-six `tc6 $21,240,000 `tc3 EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES. `tc2 Department of Youth Services. `tc1 4200-8968 `tc4 For the expansion and improvement of the facilities of the department of youth services; provided, that of the amount authorized herein, not less than six million dollars shall be expended for the establishment of three fifty-bed juvenile bootcamps, so-called, to be operated by said department to serve the youth committed to said department and youth in the custody of the juvenile courts; provided further, said department in consultation with the juvenile court, shall draft regulations governing the operation of said bootcamps; provided further, that all bootcamp programs, may, subject to further appropriation, include appropriate follow-up services for participants, including job search, counseling, continued substance treatment, drug testing and housing search; provided further, that said department shall conduct follow-up interviews with each participant within six months of departure to evaluate the success of the program; provided further, that the costs of professional personnel, excluding clerical and support personnel directly and exclusively involved in the construction, planning, and design of the projects funded herein may be charged to this item; provided further, that said costs shall not be classified as administrative costs; provided further, that an amount not to exceed two percent of the amount authorized herein may be expended for the administrative costs directly attributable to the programs or projects funded herein, including the costs of clerical and support personnel; and provided further, that the commissioner of the department of youth services shall file an annual spending plan with the house and senate committees on ways and means which details, by subsidiary, all personnel costs and administrative costs charged to this item `tc6 $37,684,000 `tc3 EXECUTIVE OFFICE OF PUBLIC SAFETY. `tc2 Department of State Police. `tc1 8199-7966 `tc4 For repairs, improvements, and maintenance of existing state police stations; provided, that the costs of professional personnel, excluding clerical and support personnel directly and exclusively involved in the construction, planning, and design of the projects funded herein may be charged to this item; provided further, that said costs shall not be classified as administrative costs; provided further, that an amount not to exceed two percent of the amount authorized herein may be expended for the administrative costs directly attributable to the programs or projects funded herein, including the costs of clerical and support personnel; and provided further, that the department of state police shall file an annual spending plan with the house and senate committees on ways and means which details, by subsidiary, all personnel costs and administrative costs charged to this item `tc6 $3,000,000 `tc1 8199-7967 `tc4 For the planning and studies, acquisition of land and buildings and interests therein, the preparation of plans and specifications, construction, renovation, reconstruction, alteration, improvement, demolition, expansion, repair and furnishings and equipment, for new state police facilities; provided, that not less than five million dollars authorized herein shall be allocated for the state police facility in the town of Dartmouth; provided further, that not less than five million dollars authorized herein shall be allocated for the construction of a state police facility in the town of Millbury; provided further, that the costs of professional personnel, excluding clerical and support personnel directly and exclusively involved in the construction, planning, and design of the projects funded herein may be charged to this item; provided further, that said costs shall not be classified as administrative costs; provided further, that an amount not to exceed two percent of the amount authorized herein may be expended for the administrative costs directly attributable to the programs or projects funded herein, including the costs of clerical and support personnel; and provided further, that the department of state police shall file an annual spending plan with the house and senate committees on ways and means which details, by subsidiary, all personnel costs and administrative costs charged to this item `tc6 $10,000,000 `tc2 Department of Correction. `tc1 8900-7967 `tc4 For the planning and studies, acquisition of land and buildings and interests therein, the preparation of plans and specifications, construction, renovation, reconstruction, alteration, improvement, demolition, expansion, repair and furnishings and equipment, for the improvement and the expansion of capacity at state correctional facilities; provided, that the costs of professional personnel, excluding clerical and support personnel directly and exclusively involved in the construction, planning, and design of the projects funded herein may be charged to this item; provided further, that said costs shall not be classified as administrative costs; provided further, that an amount not to exceed two percent of the amount authorized herein may be expended for the administrative costs directly attributable to the programs or projects funded herein, including the costs of clerical and support personnel; and provided further, that the commissioner of the department of correction shall file an annual spending plan with the house and senate committees on ways and means which details, by subsidiary, all personnel costs and administrative costs charged to this item `tc6 $115,571,860 `tcol;end

SECTION 3. To meet the expenditures necessary in carrying out the provisions of section two, the state treasurer shall, upon request of the governor, issue and sell bonds of the commonwealth in an amount to be specified by the governor, from time to time, but not exceeding in the aggregate, the sum of four hundred eighty-six million, two hundred fifty thousand, eight hundred sixty dollars. All bonds issued by the commonwealth as aforesaid shall be designated on their face, Criminal Justice, Youth Services and Prison Expansion Loan Act of 1996, and shall be issued for such maximum term of years, not exceeding twenty years, as the governor may recommend to the general court pursuant to Section 3 of Article LXII of the Amendments to the Constitution of the Commonwealth; provided, however, that all such bonds shall be payable not later than June thirtieth, two thousand and twenty-one. All interest and payments on account of principal of such obligations shall be payable from the General Fund. Bonds and interest thereon issued under the authority of this section shall, notwithstanding any other provisions of this act, be general obligations of the commonwealth.

SECTION 4. The state treasurer may borrow from time to time on the credit of the commonwealth sums of money as may be necessary for the purpose of meeting payments authorized by section two and may issue and renew from time to time notes of the commonwealth thereof bearing interest payable at such time and at such rates as shall be fixed by the state treasurer. The notes shall be issued and may be renewed one or more times for such term, not exceeding one year, as the governor may recommend to the general court in accordance with Section 3 of Article LXII of the Amendments to the Constitution of the Commonwealth, but final maturities of such notes, whether original or renewal, shall not be later than June thirtieth, two thousand and one. Notes and interest thereon issued under the authority of this section, notwithstanding any other provisions of this act, shall be general obligations of the commonwealth.

SECTION 5. The commissioner of the division of capital planning and operations is hereby authorized to acquire by purchase, or eminent domain pursuant to chapter seventy-nine of the General Laws, or otherwise, any and all interests in land and buildings deemed necessary by said commissioner to carry out the purposes of this act, including, but not limited to, land and buildings necessary to construct and operate facilities in accordance with this act, easements for drainage, access, utilities, environmental mitigation, and other purposes, as deemed necessary by the commissioner of the division of capital planning and operations to carry out the purposes of this act.

SECTION 6. The commissioner of the division of capital planning and operations is hereby authorized, notwithstanding chapter seven of the General Laws, to grant easements for drainage, access, utilities and other purposes, as deemed necessary by the commissioner to carry out the purposes of this act.

SECTION 7. Section 7 of chapter 150E of the General Laws, as appearing in the 1994 Official Edition, is hereby amended by striking out, in lines 8 and 9, the words ", the chief justice for administration and management of the trial court".

SECTION 8. Said section 7 of said chapter 150E, as so appearing, is hereby further amended by striking out, in lines 23 and 24, the words ", the chief justice for administration and management of the trial court".

SECTION 9. The General Laws are hereby amended by inserting after chapter 211D the following two chapters:- `tuc CHAPTER 211E. `tuc MASSACHUSETTS SENTENCING COMMISSION.

Section 1. (a) There is established, as an independent commission in the judicial branch of the commonwealth, a Massachusetts sentencing commission which shall consist of nine voting members and six non-voting members. The governor shall appoint the voting members of the commission, and shall designate one member as chairman. Three of the voting members shall be present district court, Boston municipal court or superior court department judges, selected from a list of seven judges recommended by the chief justice for administration and management, and at least one district court judge or Boston municipal court and one superior court judge shall be appointed. Two of the voting members shall be assistant district attorneys, selected from a list of seven assistant district attorneys recommended by the Massachusetts District Attorneys' Association. One of the voting members shall be an assistant attorney general, selected from a list of three assistant attorneys general recommended by the attorney general. Two of the voting members shall be members of the Massachusetts Association of Criminal Defense Attorneys, selected from a list of five such members recommended by the Massachusetts Association of Criminal Defense Attorneys. One voting member shall be a public defender, selected from a list of three public defenders recommended by the committee for public counsel services. The non-voting members shall be the commissioner of corrections, or his designee; the commissioner of probation, or his designee; and the secretary of public safety, or his designee; the chairman of the Massachusetts parole board, or his designee; the president of the Massachusetts Sheriffs Association or his designee; a victim witness advocate selected by the victim witness board.

The chairman and the members of the commission shall be subject to removal from the commission by the governor only for neglect of duty or malfeasance in office or for a showing of other good cause.

(b) (1) The voting members of the commission shall be appointed for six-year terms; provided, however, that the initial terms of the first members of the commission shall be staggered so that four members, including the chairman, serve terms of six years; three members serve terms of four years; and two members serve terms of two years. Terms of those members appointed because of their public office or position shall end when the member leaves such public office or position, and a successor shall be appointed in the prescribed manner.

(2) No voting member may serve more than two full terms. A voting member appointed to fill a vacancy that occurs before the expiration of the term for which his predecessor was appointed shall be appointed only for the remainder of such term.

(3) Members of the commission shall serve without compensation, but each member shall be reimbursed by the commonwealth for all reasonable expenses incurred in the performance of official duties.

(4) Judges who serve on the commission and shall not be required to resign their judicial appointments.

(c) The commission shall have the power to perform such functions as may be necessary to carry out the purposes of this chapter, and may delegate to any member or designated person such powers as may be appropriate to the accomplishment of the duties of the commission as set forth below. In particular, the commission shall:

(1) appoint and fix the salary and duties of a director and other personnel, who shall serve at the discretion of the commission;

(2) submit appropriations requests to the secretary of administration and finance;

(3) utilize, with their consent, the services, equipment, personnel, information, and facilities of federal, state, local, and private agencies and instrumentalities with or without reimbursement therefor;

(4) enter into and perform such contracts, leases, cooperative agreements, and other transactions as may be necessary in the conduct of the functions of the commission, with any public agency, or with any person, firm, association, corporation, educational institution, or nonprofit organization;

(5) accept and employ, in carrying out the provisions of this chapter, voluntary and uncompensated services;

(6) request such information, data, and reports from any Massachusetts agency or judicial officer as the commission may from time to time require and as may be produced consistent with other law;

(7) serve as a clearinghouse for the collection, preparation, and dissemination of information on sentencing practices and assist courts, departments, and agencies in the development, maintenance, and coordination of sound sentencing practices;

(8) make recommendations to the legislature concerning modification or enactment of laws relating to crimes, sentencing, and correctional matters, as well as recommendations concerning programmatic, budgetary and capital matters that the commission finds to be necessary and advisable to carry out the purposes of this chapter;

(9) hold hearings and call witnesses to assist the commission in the exercise of its powers or duties.

(d) Except as hereinafter provided, the commission shall act by affirmative vote of at least five of its voting members.

(e) Upon the request of the commission, each agency and department of the commonwealth is hereby authorized and directed to make its services, equipment, personnel, facilities and information available to the greatest practicable extent to the commission in the execution of its functions. The commission shall, to the extent practicable, utilize existing resources of the administrative office of the trial court for the purpose of avoiding unnecessary duplication.

(f) Except as otherwise provided by law, the commission shall maintain and make available for public inspection a record of the final vote of each member on any action taken by it.

(g) The director shall supervise the activities of persons employed by the commission and perform other duties assigned to the director by the commission. The director shall, subject to the approval of the commission, appoint such officers and employees as are necessary in the execution of the functions of the commission.

Section 2. The purposes of the Massachusetts sentencing commission shall be to recommend sentencing policies and practices for the commonwealth which:

(1) punish the offender justly;

(2) secure the public safety of the commonwealth by providing a swift and sure response to the commission of crime;

(3) meet the purposes of sentencing, which are:

(A) to reflect the seriousness of the offense;

(B) to promote respect for the law;

(C) to provide just punishment for the offense;

(D) to afford adequate deterrence to criminal conduct;

(E) to protect the public from further crimes of the defendant; and

(F) to provide the defendant with educational or vocational training;

(4) provide certainty and fairness in sentencing, avoiding unwarranted sentencing disparities among defendants with similar criminal records who have been found guilty of similar criminal conduct, while maintaining judicial discretion and sufficient flexibility to permit individualized sentences warranted by mitigating or aggravating factors;

(5) promote truth in sentencing, in order that all parties involved in the criminal justice process, including the prosecution, the defendant, the court, the victim and the public, are aware of the nature and length of the sentence and its basis;

(6) ration correctional capacity and other criminal justice resources to sentences imposed, making said rationing explicit, rational and coherent, in order to:

(A) afford sufficient correctional capacity to incarcerate violent offenders consistent with paragraph one;

(B) evaluate, on a yearly basis, the performance of said rationing, making appropriate remedial recommendations consistent with subparagraph (8) of paragraph (c) of section one;

(C) prevent the prison population in the commonwealth from exceeding the capacity of the prisons, and to prevent premature release for any other reason, and to serve the ends of truth in sentencing by taking into account, in establishing sentencing policies and practices for the commonwealth, the nature and capacity of correctional facilities and community sanctions available in the commonwealth consistent with protecting public safety;

(7) encourage the development and implementation of intermediate sanctions in appropriate cases as a sentencing option, consistent with protecting public safety;

(8) enhance the value of criminal sanctions and ensure that the criminal penalties imposed are the most appropriate ones by encouraging the development of a wider array of criminal sanctions;

(9) make offenders accountable to the community for their criminal behavior, through community service, restitution, and a range of intermediate sanctions;

(10) evaluate the impact, if any, on correctional facility capacity of the discontinuation of sentence reductions for good conduct;

(11) nothing contained in this section shall be construed as creating any right of action.

Section 3. (a) (1) The commission, by affirmative vote of at least six members of the commission and consistent with all pertinent provisions of this chapter and existing law, shall recommend sentencing guidelines, which shall take effect only if enacted into law.

(2) The sentencing guidelines shall be used by the district and superior courts of the commonwealth, and the Boston municipal court, in imposing a sentence in every criminal case. Said sentence shall not be suspended in whole or in part. The sentencing judge shall impose a sentence within a range prescribed by the sentencing guidelines for every offense, unless the sentencing judge sets forth in writing reasons for departing from that range, on a sentencing statement as set forth in paragraph (h), based on a finding that there exists one or more aggravating or mitigating circumstances that should result in a sentence different from the one otherwise prescribed by the guidelines. The commission shall establish non-exclusive aggravating and mitigating circumstances to guide the sentencing judge, as set forth in paragraph (d). In the absence of an applicable sentencing guideline the court shall impose an appropriate sentence, having due regard for the purposes set forth in section two.

(3) The sentencing guidelines shall be based on reasonable offense characteristics, taking into account the nature and seriousness of each offense, and reasonable offender characteristics taking into account the offender's character, background, amenability to correction, and criminal history and the availability of the commonwealth's criminal justice and public safety resources.

For every criminal offense under the laws of the commonwealth, the guidelines shall establish:

(A) The circumstances, if any, under which the imposition of intermediate sanctions may be proper, and the circumstances under which imprisonment may be proper.

(B) Appropriate intermediate sanctions for offenders for whom imprisonment may not be necessary or appropriate. In establishing such intermediate sanctions, the commission shall make specific reference to non-institutional sanctions, including but not limited to: standard probation, intensive supervision probation, community service, home confinement, weekend jail sentences, day reporting, residential programming, substance abuse treatment, restitution, means-based fines, continuing education, including but not limited to the "Changing Lives Through Literature" program administered by the trial court and the University of Massachusetts at Dartmouth, vocational training, special education, and psychological counseling; provided, however, that in no event shall a state employee be replaced by an offender serving an intermediate sanction.

(C) A target sentence for offenders for whom an intermediate sanction may not be appropriate based on a combination of reasonable offense and offender characteristics for each offense, and the adequacy of the commonwealth's criminal justice and public safety resources. The guidelines shall provide that, for each target sentence, the sentencing judge may impose a maximum sentence within a range to be established by the commission for each offense, and a minimum sentence of two-thirds of the maximum sentence; provided, however, that for target sentences of two years or greater the range may not be greater than twenty percent greater or less than the target sentence; and provided, further, that for target sentences of less than two years, the sentencing judge may impose an intermediate sanction. Within that range, the sentencing court may impose any sentence without stating its reasons therefor.

The commission shall act consistent with the need for flexibility, expeditious administration, case-flow management and resources of the trial court departments in sentencing guidelines.

(D) The circumstances, which shall not be considered exclusive, under which a sentencing judge may depart upward or downward from the range otherwise prescribed by the guidelines.

(E) The circumstances, if any, under which substance abuse treatment may be mandated, and the circumstances under which substance abuse treatment may be offered to an offender for voluntary participation.

(b) The commission shall adopt, in conjunction with the sentencing guidelines, general policy statements, which shall be used in interpreting the guidelines.

(c) In its development of the sentencing guidelines, the commission shall not be bound by any existing mandatory maximum or minimum term prescribed by statute and may recommend target sentences that exceed existing mandatory maximum terms or that fall below existing mandatory minimum terms. The commission shall conduct an empirical study in order to ascertain, to the extent practical, a survey of those individuals appearing before the commonwealth's criminal courts, and those committed to probation, prison and jail. It should also include the average sentences imposed for all offenses prior to the promulgation by the commission of the sentencing guidelines, and the length of prison terms actually served in such cases. The commission shall not be bound by such average sentences, and shall independently develop a sentencing range that is consistent with the purposes of sentencing described in section two; provided, however, that the commission shall assure that the target sentences established for each offense shall not be higher than the averages determined herein solely because of the discontinuation of sentence reductions for good conduct. The commission shall promulgate guidelines regarding participation in work release, education, training, employment or treatment programs outside correctional facilities. The commission shall utilize this data and develop any other data it deems necessary in order to assess the impact of the sentencing guidelines and carry out the purposes set forth in said section two.

(d) In establishing non-exclusive aggravating and mitigating circumstances pursuant to subparagraph (2) of paragraph (a), the commission shall determine whether the following kinds of factors, among others, are relevant, and shall take such factors into account only to the extent that it deems to be relevant:

(1) factors that describe the nature and circumstances of the offense;

(2) factors that describe the offender's mental state at the time of the offense;

(3) factors that describe the relationship, if any, between the offender and victim;

(4) factors that describe the nature and degree of the harm caused by the offense;

(5) the community view of the gravity of the offense;

(6) the public concern generated by the offense;

(7) the deterrent effect a particular sentence may have on the commission of the offense by others;

(8) the current incidence of the offense in the community and in the commonwealth as a whole;

(9) the role in the offense of each offender in cases involving multiple offenders;

(10) the age of the offender;

(11) the mental and emotional condition of the offender, to the extent that such condition mitigates the defendant's culpability or to the extent that such condition is otherwise plainly relevant;

(12) the offender's physical condition, including drug dependence;

(13) the offender's family ties and responsibilities;

(14) the offender's community ties;

(15) the offender's degree of dependence upon criminal activity for a livelihood;

(16) the offender's character and personal history; and

(17) the offender's amenability to correction, treatment, or supervision.

(e) Except for the crimes set forth in section one of chapter two hundred and sixty-five, the sentencing judge may depart from the range established by the sentencing guidelines and impose a sentence below any mandatory minimum term prescribed by statute, if the judge sets forth in writing reasons for departing from that range on a sentencing statement as set forth in paragraph (h) of this section, based on a finding that there exists one or more mitigating circumstances that should result in a sentence different from the one otherwise prescribed by the guidelines and below any applicable mandatory minimum term.

The commission shall assure that the guidelines are neutral as to the race, sex, national origin, creed, religion and socio-economic status of offenders.

(f) The commission periodically shall assess the impact of the sentencing guidelines in order to determine the type and amount of correctional resources needed. In particular, the commission shall examine the impact of said guidelines on intermediate sanctions and correctional institutions and may consult with all appropriate authorities for this purpose. Beginning in the year after the sentencing guidelines become law, but no later than May first, the following persons shall submit comments and recommendations to the commission regarding the implementation and impact of the sentencing guidelines: The governor's chief legal counsel, the commissioner of probation; the chairman of the parole board; every district attorney; the chief counsel of the committee for public counsel services; the commissioner of corrections; the chief justices of the superior court, district court, and Boston municipal court; the attorney general; and the Massachusetts Association of Criminal Defense Attorneys.

(g) Beginning in the calendar year following the effective date of the sentencing guidelines, the commission, at or after the beginning of a regular session of the legislature, but not later than the first day of October, may submit to the legislature proposed amendments to the sentencing guidelines. Such amendments shall be accompanied by a report stating the reasons therefor. The amendments to the guidelines shall take effect only if enacted into law.

(h) The chief justice for administration and management, in consultation with the sentencing commission, shall promulgate the form of a sentencing statement, conforming to the sentencing guidelines, which shall be used by the sentencing judge in the application of the guidelines when imposing a sentence. The sentencing judge shall complete the statement for every sentence imposed. If the sentencing judge imposes a sentence that departs from the range established by the guidelines, he shall, in the sentencing statement, give the facts, circumstances, evidence, opinions and any other matters considered by him to support the mitigating circumstances justifying the imposition of a sentence different from the one otherwise prescribed by the guidelines or below any applicable mandatory minimum term. One copy of the sentencing statement shall be forwarded by the court to the commission, which shall be used by the commission to submit to the legislature, at least annually, an analysis of sentencing patterns under the guidelines.

(i) Any inmate sentenced to a state or county correctional facility prior to the effective date of any sentencing guidelines enacted into law shall be subject to the law, regulation and rules governing the issuance of parole and the supervision of parole at the time the offense was committed.

(j) A person sentenced to a term of imprisonment as prescribed by any sentencing guidelines enacted into law may be eligible for parole after serving the minimum sentence imposed, less credit for deductions for good conduct earned under section one hundred and twenty-nine D of chapter one hundred and twenty-seven.

(k) The commission shall provide a public hearing and opportunity for public comment on its sentencing guidelines prior to submitting said guidelines to the legislature.

Section 4. (a) A defendant may file a notice of appeal for review of an otherwise final sentence if:

(1) the sentence was imposed in violation of law; or

(2) the sentence was imposed as a result of an incorrect application of the sentencing guidelines; or

(3) the departure upward from the applicable guideline range was an abuse of discretion; or

(4) the sentence was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.

(b) The commonwealth, with the personal approval of the attorney general or a district attorney, may appeal an otherwise final sentence if:

(1) the sentence was imposed in violation of law;

(2) the sentence was imposed as a result of an incorrect application of the sentencing guidelines;

(3) the departure downward from the applicable guideline range was an abuse of discretion; or

(4) the sentence was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.

(c) In the case of a plea agreement entered into pursuant to Rule twelve of the Massachusetts rules of criminal procedure:

(1) a defendant may not appeal a sentence unless the sentence imposed is greater than the sentence prescribed by the sentencing guidelines; and

(2) the commonwealth may not appeal a sentence unless the sentence imposed is less than the sentence prescribed by the sentencing guidelines.

(3) a sentence imposed by the court in accordance with the recommendation of either the defendant or the commonwealth may not be appealed by the party which made the recommendation; and a sentence imposed in accordance with a jointly-agreed recommendation may not be appealed by either the defendant or the commonwealth.

(d) Appeals from sentences imposed under the sentencing guidelines shall be conducted in accordance with the Massachusetts rules of appellate procedure.

(e) If imprisonment is imposed, the entry of an appeal under the provisions of this section shall not stay the execution of the sentence unless the judge imposing it, upon a showing of a reasonable likelihood of success, finds that execution of the sentence should be stayed pending final determination of the appeal. `tuc CHAPTER 211F. `tuc OFFICE OF COMMUNITY CORRECTIONS.

Section 1. The following terms as used in this chapter shall have the following meanings:

"Chief justice", the chief justice for administration and management of the trial court.

"Commission", the Massachusetts sentencing commission.

"Community corrections program", any program that is operated by a state, local or private service agency, that has been deemed an appropriate intermediate sanctions program by the office of community corrections.

"Intermediate sanctions program", any program that has been determined to impose an appropriate sanction upon an offender for whom imprisonment may not be necessary or appropriate, including but not limited to standard probation, intensive supervision probation, community service, home confinement, weekend jail sentences, day reporting, residential programming, substance abuse treatment, restitution, means-based fines, continuing education, including but not limited to the "Changing Lives Through Literature" program administered by the trial court and the University of Massachusetts at Dartmouth, vocational training, special education, and psychological counseling.

"Community corrections plan", a written proposal submitted to the executive director of the office of community corrections for approval and funding as a community corrections program.

"Executive director", the executive director of the office of community corrections.

Section 2. (a) There is hereby established subject to appropriation within the office of the chief justice for administration and management of the trial court an office of community corrections, whose purpose is to establish a continuum of community corrections programs and services statewide. The goal of this chapter is to ensure and promote public safety by developing community corrections programs for appropriate offenders.

(b) The executive director of the office of community corrections shall be appointed by the chief justice for administration and management of the trial court to establish, oversee and operate a statewide program of community corrections.

(c) The executive director shall operate subject to the direction and approval of the chief justice for administration and management of the trial court. Said executive director shall work in consultation with the commission, the department of probation, the department of corrections, the parole board and the county sheriffs to ensure consistency between sentencing guidelines and community corrections. The office shall, to the extent practicable, utilize existing resources of the administrative office of the Massachusetts courts for the purpose of avoiding unnecessary duplication.

Section 3. (a) Any court exercising jurisdiction is authorized to sentence any eligible offender to a community corrections program; provided, however, that the court designate the duration of the sentence of imprisonment that otherwise would have been imposed.

(b) The court may dictate the duration and conditions of the sentence in a community corrections program for any period of time consistent with existing law.

(c) A sentence to a community corrections program shall be imposed as a condition of probation consistent with chapters two hundred and seventy-six and two hundred and seventy-six A. The court may modify the sentence of an offender serving a sentence in a community corrections program in the same manner as if the offender had been placed on probation.

(d) The chief justice shall develop interim standards for the eligibility of offenders for community corrections, taking into consideration the following factors:

(1) the nature and circumstances of the offense;

(2) the offender's mental state at the time of the offense;

(3) the relationship, if any, between the offender and victim;

(4) the nature and degree of the harm caused by the offense;

(5) the community view of the gravity of the offense;

(6) the public concern generated by the offense;

(7) the age of the offender;

(8) the deterrent effect a particular sentence may have on the commission of the offense by others;

(9) the current incidence of the offense in the community and in the commonwealth as a whole;

(10) the role of the offender in cases involving multiple offenders;

(11) the mental and emotional condition of the offender;

(12) the offender's physical condition;

(13) the offender's family ties and responsibilities;

(14) the offender's community ties;

(15) the offender's degree of dependence upon criminal activity for a livelihood;

(16) the offender's character and personal history;

(17) the offender's amenability to correction, treatment, or supervision;

(18) the offender's past criminal history, including convictions, acquittals, guilty pleas, pleas of nolo contendere, dismissals and matters continued without a finding;

(19) the offender's arrest record;

(20) the offender's past history of violence.

No offender shall be eligible for sentencing to a community corrections program who is: (1) convicted of a crime that results in serious bodily harm or death to another person, excluding offenses in which negligence was the primary element, (2) convicted of rape, attempted rape, or sexual assault, or (3) convicted of a crime involving the use of a firearm.

Section 4. (a) The executive director is hereby authorized and directed to develop and implement standards for a contracting process for community corrections plans, as follows:

(1) A community corrections plan shall include:

(A) a description of its goals and anticipated reductions in incarcerations, including the types and number of targeted offenders to participate in the program;

(B) a description of the administrative, capital and operating costs of the programs and supplemental funding sources, including the imposition of user fees to defray program costs;

(C) a description of methods for supervision of offenders and measures for the maintenance of public safety;

(D) a description of measures to collect restitution payments to victims.

(2) Subject to appropriation, the executive director, shall select plans for funding. All contracts shall provide that the executive director may suspend funding or may assume administrative responsibility for any community corrections program not in compliance with program standards, or if the public safety is threatened.

(3) The executive director shall monitor programs for compliance with the goals of chapter two hundred and eleven E of the General Laws, and shall provide technical assistance, training and education to providers in developing and operating community corrections programs.

(4) Continued funding shall be subject to appropriation, and eligibility for continued funding shall be contingent on provider compliance with the goals, standards and procedures established by the commission, and on an evaluation by the executive director of the effectiveness of the program. Each provider shall submit a biannual report no later than March fifteenth and August fifteenth of each year to the county community corrections advisory board, to the executive director and to the commission.

(b) Subject to an agreement between the chief justice and the secretary of public safety and subject to appropriation, the resources of community corrections programs shall be utilized by the parole board for the purpose of parole supervision.

(c) The office of community corrections shall develop and implement a public education program about community corrections, provide technical assistance, training and education to the judiciary and criminal justice system agencies and personnel, coordinate training for providers, and serve as a clearinghouse for information regarding community corrections programs.

Section 5. The chief justice shall submit a biannual report no later than July fifteenth and January fifteenth of each year to the governor, the commission, the joint committees on criminal justice, the judiciary and public safety, and the clerks of the house of representatives and the senate. The report shall include but shall not be limited to the following information:

(1) the effectiveness of the office of community corrections in promoting the goals of the commission;

(2) the effectiveness of the office of community corrections in diverting offenders by reducing prison commitments;

(3) the evaluations and recommendations submitted by the county community corrections advisory boards and by providers of community corrections programs;

(4) fiscal audits on the expenditure of state funds;

(5) allegations of provider noncompliance and the results of any investigations into such allegations.

Section 6. (a) There is hereby established within each county a county community corrections advisory board consisting of at least eight but not more than twelve members including the following:

(1) the first justice of the superior court, or his designee;

(2) a district court judge appointed by the chief justice for administration and management of the trial court;

(3) a probation officer appointed by the chief justice for administration and management of the trial court;

(4) a representative of the parole board appointed by the secretary of public safety;

(5) the district attorney, or his designee;

(6) a public defender appointed by the committee for public counsel services;

(7) a mental health professional or substance abuse counselor appointed by the chief justice for administration and management of the trial court;

(8) the sheriff, or his designee;

(9) not more than four other members appointed by the chief justice for administration and management of the trial court.

(b) The county community corrections advisory board shall assist in the review and monitoring of community corrections programs located in that county. Its responsibilities shall include holding public hearings on community corrections plans submitted to the executive director, reporting any allegations of provider noncompliance, and submitting written comments to the executive director and to the commission, which shall include evaluations of each provider located in that county, analysis of the results of community corrections programs located in that county, recommendations for change and any other information, statistics or data requested by the executive director or the commission, no later than May fifteenth and November fifteenth of each year.

SECTION 10. Section 87A of chapter 276 of the General Laws, as appearing in the 1994 Official Edition, is hereby amended by striking out, in line 10, the word "thirty" and inserting in place thereof the following word:- forty-five.

SECTION 11. Section 1 of chapter 785 of the acts of 1985 is hereby amended by inserting after the word "available", in line 7, the following words:- ; provided, that not more than twenty-five thousand dollars of the amount made available in this section shall be expended for a study relative to the feasibility of construction of a regional lock-up facility for the lower portion of Cape Cod; provided further, that not more than two hundred thousand dollars of the amount made available in this section shall be expended to study the feasibility of locating a Suffolk county regional lock-up at the Spaulding Hospital site, so-called, in the city of Boston; provided further, that the chief justice for administration and management of the trial court is hereby authorized and directed to study the feasibility of establishing a regional lock-up at the East Brookfield district court; provided further, that said chief justice shall consult with the presiding justice and the clerk magistrate of said court, as well as the sheriff of Worcester county and the chiefs of police in communities within the court district and other central Massachusetts communities in the preparation of said study; provided further, that the trial court or the presiding justice of said East Brookfield district court may initiate the study of said court in the event that said study is not initiated within thirty days of the effective date of this act; and, provided further, that the feasibility studies authorized by this section shall be submitted to the house and senate committees on ways and means no later than April first, nineteen hundred and ninety-six.

SECTION 12. Said chapter 785 is hereby further amended by adding the following section:-

Section 5. Notwithstanding the provisions of any general or special law to the contrary, funds authorized in sections one and two of this act shall be available for expenditure until June thirtieth, two thousand.

SECTION 13. Chapter 799 of the acts of 1985 is hereby amended by inserting after section 25 the following section:-

Section 25A. Notwithstanding the provisions of any general or special law to the contrary, funds authorized in this act shall be available for expenditure until June thirtieth, two thousand.

SECTION 14. Item 2440-7882 of section 2D of chapter 199 of the acts of 1987 is hereby amended by striking out the wording and inserting in place thereof the following words:- For the preservation, repair, renovation, and construction, including the cost of furnishings and equipment, of state police stations.

SECTION 15. Item 2440-7890 of section 2D of chapter 164 of the acts of 1988 is hereby amended by striking out the wording and inserting in place thereof the following words:- For studies and the preparation of plans, if necessary, and for repairs, renovations, and construction, including the cost of furnishings and equipment, of state police stations.

SECTION 16. Sections one to six, inclusive, of chapter four hundred and thirty-two of the acts of nineteen hundred and ninety-three are hereby repealed.

SECTION 17. Notwithstanding any general or special law, regulation, rule or order to the contrary, the secretary of the executive office of public safety is hereby authorized and directed to discontinue operation of the bootcamp, so-called, located at the Bridgewater correctional complex upon the graduation of the class in attendance on the effective date of this act. The land and facilities used to operate said bootcamp shall thereafter be utilized for minimum security correctional purposes.

SECTION 18. Notwithstanding the provisions of section fourteen of chapter thirty-four of the General Laws or any other general or special law to the contrary, within thirty days after the effective date of this act, the county commissioners of Norfolk county are hereby authorized and directed to convey by deed or deeds a certain parcel of land and the buildings thereon in the town of Dedham known as the old Norfolk county jail, located on Village avenue, to the division of capital planning and operations, said parcel to be more particularly described in a plan to be prepared by said division and recorded in the Norfolk county registry of deeds.

SECTION 19. Notwithstanding the provisions of sections thirty-eight A to thirty-eight O, inclusive, of chapter seven of the General Laws, section thirty-nine M of chapter thirty of the General Laws, sections forty-four A to forty-four J, inclusive, of chapter one hundred and forty-nine of the General Laws, or any other general or special law to the contrary, the commissioner of the division of capital planning and operations may, after consultation with the secretary of public safety and the secretary of administration and finance, employ alternative methods of procurement of design and construction services, including design build, for the design and construction of the Barnstable county house of correction, the Berkshire county jail and house of correction, the Dukes county jail and house of correction, the Essex county jail and house of correction, and the Worcester county jail and house of correction; provided, however, that the design build method of construction and design shall be limited to not more than two projects authorized by this section at any given time; and provided further, that the Barnstable county house of correction and the Berkshire county jail and house of correction shall be accorded priority for any such design build method before the other projects authorized by this section. The division of capital planning and operations shall develop procedures for alternative methods of procurement in consultation with the office of the inspector general. Final procedures shall be submitted to the inspector general for comment at least thirty days before the solicitation of proposals for design or construction services. Such procedures and the inspector general's comments shall be submitted to the governor and the clerks of the senate and house of representatives by the division of capital planning and operations not less than forty-five days before the execution of any contract for design or construction services.

SECTION 20. Prior to the commencement of construction at the Middlesex county jail and house of correction in the town of Billerica, the division of capital planning and operations or its designee shall conduct a water suitability study which shall ensure that said town of Billerica is able to provide an adequate supply of water to said Middlesex county jail and house of correction without overburdening the town's water purification and delivery system and without exceeding the maximum amount of water which said town is permitted to withdraw from the Concord river.

SECTION 21. In connection with authorizing funds to expand the Suffolk County House of corrections pursuant to item 1102-7967 of section two, no bituminous concrete manufacturing facility shall be located within the city of Boston which is less than one-half mile in linear distance from said correctional facility within the city of Boston and which shall receive funds or shall have received funds pursuant to said item 1102-7967. Said linear distance shall be measured from the outermost perimeter of such bituminous concrete manufacturing facility to the outermost point of any such correctional facility; provided however, that this section shall not apply to any bituminous concrete manufacturing facility in operation as of November fifteenth, nineteen hundred and ninety-five.

SECTION 22. The department of youth services shall relocate the two programs at the Hadley building to an alternative site within the Westborough compound. Said site shall be determined by the commissioner of said department in consultation with the Westborough DYS Task Force.

SECTION 23. The office of community corrections shall examine the feasibility of establishing a pilot program entitled the woman's restitution program within the Barnstable county jail and house of correction, to be administered by the sheriff of Barnstable county.

SECTION 24. The secretary of the executive office of public safety is hereby authorized and directed to reconvene the advisory committee on correction as provided in section three of chapter twenty-seven of the General Laws. Said committee shall make written findings and recommendations to the house and senate committees on ways and means, the president of the senate and the speaker of the house of representatives not later than June thirtieth, nineteen hundred and ninety-six.

SECTION 25. The secretary of the executive office of public safety, in consultation with the National Institute of Corrections, Federal Bureau of Prisons, shall commission a study of the classification process of the department of correction and incorporating the results of the objective point based classification system currently being tested at the Massachusetts correctional institution at Norfolk and the Massachusetts correctional institution at Concord for the purpose of improving the identification and assessment of current inmate risk and need. Said study shall make recommendations regarding efficient use of pre-release and minimum security and medium security placements by the department and the removal of impediments to such placements. Said study shall be submitted to the house and senate committees on ways and means and the joint committee on public safety not later than June thirtieth, nineteen hundred and ninety-six.

SECTION 26. The secretary of the executive office of public safety, in consultation with the National Institute of Corrections, the American Probation and Parole Association, the Association of Parole Authorities International, and the Federal Bureau of Prisons, shall commission a study of the parole process of the parole board and department of correction for the purpose of improving the identification and assessment of current inmate risk and need. Said study shall make recommendations regarding effective use of classification and parole supervision and ways to improve the parole rate and parole supervision of inmates. Said study shall be submitted to the house and senate committees on ways and means and the joint committee on public safety not later than June thirtieth, nineteen hundred and ninety-six.

SECTION 27. The department of correction in conjunction with the trial court, parole board and county sheriffs shall utilize and review the findings and recommendations of the studies required by sections twenty-five and twenty-six, and the objective or point-based classification system currently in use at the Massachusetts correctional institution at Norfolk and the Massachusetts correctional institution at Concord, prior to the submission of any future proposals for the expansion, rehabilitation, renovation or construction of any state or county correctional facility.

SECTION 28. There shall be a special committee to study the development and implementation of a functional literacy program for individuals incarcerated in the state correctional facilities of the commonwealth. The committee shall consist of eight members to be appointed by the governor, one of whom shall be representative of the department of correction, one of whom shall be a prison educator, one of whom shall be a community adult educator, one of whom shall be a person who has previously served time at a prison, one of whom shall be representative of the department of employment and training, one of whom shall be representative of the department of education, one of whom shall be a member of the parole board, and one of whom shall be a member of the business or industrial community. The commissioner of correction or his designee shall serve as chairman. Said committee shall recommend methods for providing to inmates of correctional facilities the educational skills necessary to function independently in society, including, but not limited to, reading of english, writing, comprehension, and arithmetic computation. The committee shall submit to the governor and the clerks of the senate and house of representatives a report containing its evaluation, findings and recommendations, not later than June thirtieth, nineteen hundred and ninety-six.

SECTION 29. The Massachusetts sentencing commission, the chief justice for administration and management of the trial court, the secretary of health and human services, and the secretary of public safety are hereby authorized and directed to make an investigation and study relative to developing a full range of sentencing options consistent with the goals of chapter two hundred and eleven E of the General Laws, including but not limited to probation, home confinement, intensive supervision, community service, restitution, day reporting, day fines, other intermediate sanctions, incarceration in the house of correction, and prison. A report of the findings and recommendations of said investigation and study shall be submitted to the house and senate committees on ways and means not later than April eleventh, nineteen hundred and ninety-six.

SECTION 30. The Massachusetts sentencing commission shall submit sentencing guidelines pursuant to chapter two hundred and eleven E of the General Laws to the general court not later than April eleventh, nineteen hundred and ninety-six. The guidelines shall take effect only if enacted into law.

SECTION 31. The members of the sentencing commission appointed pursuant to chapter four hundred and thirty-two of the acts of nineteen hundred and ninety-three shall be members of the commission established under the provisions of section nine of this act according to the terms of their appointment.