SENATE DOCKET, NO. 1570        FILED ON: 1/18/2013

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 714

The Commonwealth of Massachusetts

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PRESENTED BY:

Cynthia S. Creem

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to juvenile life without parole sentences.

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PETITION OF:

SENATE DOCKET, NO. 1570        FILED ON: 1/18/2013

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 714

The Commonwealth of Massachusetts

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In the Year Two Thousand Thirteen

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An Act relative to juvenile life without parole sentences.

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. Legislative Findings

The general court hereby finds and determines that:

(1) In Miller v. Alabama (2012), the Supreme Court of the United States recognized that features distinguishing juveniles from adults put them at a significant disadvantage in criminal proceedings and current sentencing laws disregard the possibility of rehabilitation, even when circumstances most suggest it;

(2) Current sentencing laws for juveniles preclude consideration of the child’s chronological age and its hallmark features, as demonstrated by scientific research – among them, immaturity, impetuosity, and a failure to appreciate risks and consequences; they neglect the circumstances of the offense, including the extent of the offender’s participation and the individual nature of the offender’s background and circumstances; they ignore that, if not for incompetencies associated with youth, the child might have been charged with, and convicted of, a lesser offense; and

(3) Given children’s diminished culpability and heightened capacity for change, appropriate occasions for sentencing juveniles to the harshest possible penalty must be, as the Miller Court concluded, uncommon;

(4) The purpose of this act, therefore, is to acknowledge that children are fundamentally different from adults, and to ensure they are held accountable in an age-appropriate way by requiring that these differences, and how they advise against irrevocably imprisoning a child until their death, be taken into account at sentencing, in addition to the particular circumstances of the defendant.

SECTION 2. Section 167 of chapter 6 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out, in lines 21, 23 and 24 the word “seventeen” and inserting in place thereof the following word:- eighteen

SECTION 3. Section 4 of chapter 27 of the General Laws, as appearing in the 2004 Official Edition, is hereby amended by striking out, in line 2, the word “seven” and inserting in place thereof the following word:— nine

SECTION 4. Said section 4 of chapter 27 of the General Laws, as so appearing, is hereby further amended by adding, at the end of the second paragraph thereof, the following:--

Notwithstanding the above, the board shall include, at all times, at least one person with not less than ten years of experience and training in adolescent development and psychology. Said person shall be selected by either the panel or the governor from a list of proposed nominees provided by the following organizations: the Massachusetts chapter of the American Academy of Pediatrics; the New England Council of Child and Adolescent Psychiatry, Inc.; the Massachusetts Psychological Association, Inc.; the MA Psychiatric Society, and the Committee for Public Counsel Services.

SECTION 5. Section 20 of chapter 31 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out in line 10 the word “seventeen” and inserting in place thereof the following word:- eighteen

SECTION 6. Section 24 of chapter 37 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out in paragraph (d) the word “seventeen” and inserting in place thereof the following word:- eighteen

SECTION 7. Section 32H of chapter 94C, as most recently amended by section 71 of Chapter 256 of the Acts of 2010, is hereby further amended by striking out in the last sentence the number “17” and inserting in place thereof the following number:- 18

SECTION 8. Section 32M of chapter 94C of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out in line 6 the word “seventeen” and inserting in place thereof the following word:- eighteen

SECTION 9. Section 36 of said chapter 94C, as so appearing, is hereby amended by striking out, in line 6 the word “seventeenth” and inserting in place thereof the following word:- eighteenth

SECTION 10. Section 52 of said chapter 119, as so appearing, is hereby amended by striking out in line 5 in the definition of “Delinquent child” the word “seventeen” and inserting in place thereof the following word:- eighteen

SECTION 11. Said section 52 of said chapter 119, as so appearing, is hereby further amended by striking out in line 14 in the definition of “Youthful offender,” the word “seventeen” and inserting in place thereof the following word:- eighteen

SECTION 12. Section 54 of said chapter 119, as so appearing, is hereby amended by striking out in lines 2 and 20 the word “seventeen” and inserting in place thereof the following word:- eighteen

SECTION 13. The second sentence of the first paragraph of section 58 of said chapter 119, as so appearing, is hereby amended by inserting in lines 9 and 10 after the words “or age nineteen in the case of a child whose case is disposed of after he has attained his eighteenth birthday” the following:-

or age twenty in the case of a child whose case is disposed of after he has attained his nineteenth birthday.

SECTION 14. The second paragraph of said section 58 of said chapter 119 , as so appearing, is hereby further amended by inserting after the words “or nineteen in the case of a child whose case is disposed of after he has attained his eighteenth birthday” the following:-

, or age twenty in the case of a child whose case is disposed of after he has attained his nineteenth birthday.

SECTION 15. Said section 58 of said chapter 119, as so appearing, is hereby further amended by striking out in line 67 the word “seventeenth” and inserting in place thereof the following word:- eighteenth

SECTION 16. Said section 58 of said chapter 119, as so appearing, is hereby further amended by inserting in line 89 after the words “child attains his eighteenth birthday” the following:-

or his nineteenth birthday in the case of a child whose case is disposed of after he has attained his eighteenth birthday

SECTION 17. The second paragraph of section 60A of said chapter 119, as so appearing, is hereby amended by striking out the word “seventeenth” and inserting in place thereof the following word:- eighteenth

SECTION 18. Said paragraph of said section of said chapter is hereby further amended by striking out the word, “seventeen” where it so appears and inserting in place thereof the following word:- eighteen

SECTION 19. In clause (i) of paragraph 1 of section 63A of said chapter 119, as so appearing, is hereby amended by striking out the words “seventeen, or under the age of 18 and in state custody,” and inserting in place thereof the follow word:- eighteen

SECTION 20. Section 65 of said chapter 119, as so appearing is hereby amended by striking out in line 2 the word “seventeenth” and inserting in place thereof the following word:- eighteenth

SECTION 21. Section 66 of said chapter 119, as so appearing, is hereby amended by striking out in lines 2 to 3, inclusive, and in line 5 the word “seventeen” and inserting in place thereof the following word:- eighteen

SECTION 22. Section 67 of said chapter 119, as so appearing, is hereby amended by striking out in lines 2, 19, 20, 35 and 45 the word “seventeen” and inserting in place thereof the following word:- eighteen

SECTION 23. Section 68 of said Chapter 119, as so appearing, is hereby amended by striking out in lines 2, 31 and 46 the word “seventeen” and inserting in place thereof the following word:- eighteen

SECTION 24. Section 68A of said chapter 119, as so appearing, is hereby amended by striking out in line 1 the word “seventeen” and inserting in place thereof the following word:- eighteen

SECTION 25. Section 70 of said chapter 119, as so appearing, is hereby amended by striking out in line 2 the word “seventeen” and inserting in place thereof the following word:- eighteen

SECTION 26. Section 72 of said chapter 119, as so appearing, is hereby amended by striking out in line 8 the word “nineteenth” and inserting in place thereof the following word:- twentieth

SECTION 27. Said section 72 of said chapter 119, as so appearing, is hereby further amended by striking out, in lines 9 to 12, inclusive, the words “seventeenth birthday, and is not apprehended until between his seventeenth and eighteenth birthday, the court shall deal with such child in the same manner as if he has not attained his seventeenth birthday” and inserting in place thereof the following:-

eighteenth birthday, and is not apprehended before his nineteenth birthday, the court shall deal with such child in the same manner as if he has not attained his eighteenth birthday

SECTION 28. Section 72A of said chapter 119, as so appearing , is hereby amended by striking out in lines 2 to 3, inclusive, the words “seventeenth birthday, and is not apprehended until after his eighteenth birthday,” and inserting in place thereof the following:-

eighteenth birthday, and is not apprehended until after his nineteenth birthday,

SECTION 29. Paragraphs 1 and 2 of Section 72B of chapter 119 of the General Laws, as appearing in the 2010 Official Edition, are hereby amended by striking out said paragraphs and inserting in place thereof the following new paragraphs:

Notwithstanding the provisions of section two of chapter two hundred and sixty-five, if a person is found guilty of murder in the first degree committed on or after his fourteenth birthday and before his eighteenth birthday, the juvenile court shall commit the person to imprisonment in a state prison for life and, except as provided in section 72D of this chapter, shall fix a minimum term which shall be not less than 15 years nor more than 25 years. In making the determination as to when said person shall be eligible for parole, the court shall consider aggravating factors as described in section 72D of this chapter.  Said person shall be eligible for parole under section one hundred and thirty-three A of chapter one hundred and twenty-seven when such person has served said minimum term of confinement, except as provided in section 72D of this chapter. Thereafter said person shall be subject to the provisions of law governing the granting of parole permits by the parole board.

Notwithstanding the provisions of section two of chapter two hundred and sixty-five, if a person is found guilty of murder in the second degree committed on or after his fourteenth birthday and before his eighteenth birthday, the juvenile court shall commit the person to imprisonment in a state prison for life. Said person shall be eligible for parole under section one hundred and thirty-three A of chapter one hundred and twenty-seven when such person has served twelve and a half years of said confinement. Thereafter said person shall be subject to the provisions of law governing the granting of parole permits by the parole board.

SECTION 30. Said section 72B of chapter 119 of the General Laws, as appearing in the 2010 Official Edition, is hereby further amended by striking out the word “superior” in lines 15 and 34, and inserting in place thereof, in each instance, the following word:- juvenile

SECTION 31. Said Section 72B is hereby further amended by striking out in line 24 the word “seventeenth” and inserting in place thereof the following word:- eighteenth

SECTION 32. Said section 72B is hereby further amended by striking out paragraph 4 and inserting in place thereof the following new paragraph:

A person who is found guilty of murder in the first or second degree committed on or after his fourteenth birthday and before his eighteenth birthday and is sentenced to a state prison but who has not yet reached his twenty-first birthday shall remain in the custody of the department of youth services until his twenty-first birthday.

SECTION 33. Said chapter 119 of the General Laws, as so appearing, is hereby amended by inserting after section 72B the following two sections:

Section 72C. If a defendant is charged with murder in the first degree committed on or after his fourteenth birthday and before his eighteenth birthday, the Commonwealth shall provide notice to the defendant not later than 60 days after receipt of indictments for the charged offenses that, upon conviction, it intends to request the imposition of life imprisonment without the possibility of parole.

If the Commonwealth asserts its intent to request the imposition of life imprisonment without the possibility of parole against the defendant and the jury returns a verdict of guilty of murder in the first degree under a theory of deliberate premeditation or with extreme atrocity or cruelty, then the court may consider the sentence of life imprisonment without the possibility of parole upon a finding that:

(1) the offense involved in the infliction of torture or extreme physical, psychological, or sexual abuse;

(2) at least one victim was under the age of 12; or

(3) the defendant has caused the death of multiple victims.

During such hearing, the defendant shall have a right to elect sentencing by the jury impanelled to try the defendant or a jury impanelled for sentencing, or the defendant may waive the right to sentencing by jury, by signing a written waiver. Except when the defendant has waived the right to a jury, the jury shall advise the court regarding the appropriateness of a sentence of life imprisonment without the possibility of parole. The court shall submit to the jury special questions concerning the defendant’s culpability and capacity for rehabilitation. The Court shall not impose a sentence of life without parole unless the jury unanimously finds the Commonwealth has proven beyond a reasonable doubt that:

(1) the defendant killed or had the intent to kill the victim;

(2) the defendant exhibited the level of maturity and sense of responsibility typical of a reasonable adult at the time of the offense;

(3) the defendant was not unduly vulnerable to negative influences from family and peers,  at the time of the offense;

(4) the defendant was not the victim of extreme physical, psychological, or sexual abuse at home or in the community;

(5) the actions of the defendant are evidence of irretrievably depraved character and irreparable corruption as demonstrated by an entrenched pattern of unlawful, violent behavior;

(6) a sentence of life without parole is in the interest of justice and necessary for the safety and security of the public and that no lesser sentence will satisfy these interests.

A sentence of life without the possibility of parole shall not be imposed unless the jury has made written findings that each of the above factors was proven beyond a reasonable doubt. After the jury has made its findings, if the court is not convinced, beyond a reasonable doubt, that no lesser sentence will satisfy the interests of justice and the safety and security of the community, it shall impose a lesser sentence.

Any defendant sentenced to life without parole under the provisions of this section shall be eligible, after a period of incarceration of at least 10 years, to petition the sentencing court for a resentencing hearing. The court shall in such cases conduct a resentencing hearing within 180 days of the defendant’s petition.  If possible, the judge who sentenced the defendant shall conduct the resentencing hearing. A defendant shall be entitled to counsel at such resentencing hearing. The judge may decide to resentence the defendant to a term of life with parole eligibility after at least 15 years, or may decide to deny the defendant’s request for resentencing and leave in place the sentence of life without parole. In either case, the judge shall enter written findings in support of the decision. A defendant whose resentencing request is denied may, after a period of incarceration of at least 15 years, again petition the sentencing court for a resentencing hearing, which shall in all respects be conducted in the same manner as described in this paragraph. The court shall notify all victims of any such resentencing hearing, at which any victim shall have the right to submit a victim impact statement.

Section 72D. As soon as practicable after the indictment of a defendant for murder in the first degree committed on or after his fourteenth birthday and before his eighteenth birthday, there shall be an independent, comprehensive psychological and neuro-testing evaluation conducted by a professional who is qualified in accordance with minimal qualifications as determined by the department of mental health.  Nothing in this section shall prevent either the defendant or the prosecutor from pursuing a similar evaluation, nor from presenting evidence, either at trial or at a sentencing hearing, on such evaluation.  All such evaluations, as well as any reports, records, and other information and materials used in their production, may be sealed by order of the court.  All such evaluations shall be inadmissible at any future trial.

SECTION 34. Section 74 of said chapter 119, as so appearing, is hereby amended by striking out in line 3 the word “seventeenth” and inserting in place thereof the following word:- eighteenth

SECTION 35. Said section 74 of said chapter 119, as so appearing, is hereby further amended by striking out in lines 10 and 14 the word “seventeen” and inserting in place thereof the following word:- eighteen

SECTION 36. Section 84 of said chapter 119, as so appearing, is hereby amended by striking out in line 11 the words “seventeen (or eighteen)” and inserting in place thereof the following:- eighteen (or nineteen)

SECTION 37. Section 15 of chapter 120 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out in lines 3 and 4 the word “seventeen” and inserting in place thereof the following word:- eighteen

SECTION 38. Section 21 of said chapter 120, as so appearing, is hereby amended by striking out in line 17 the word “seventeen” and inserting in place thereof the following word:- eighteen

SECTION 38A. Section 130 of chapter 127, as so appearing, is hereby amended by inserting, at the end thereof, the following paragraph:-

In the case of a prisoner at least one of whose offenses was committed prior to the prisoner’s eighteenth birthday, the prisoner shall be entitled to counsel at any parole hearing, and to present testimony from experts in the psychological, social, and mental development of adolescents, and the particular circumstances of juvenile offenders.  At any such hearing, the board shall, in addition to the above, consider the prisoner’s age at the time of the offense and review psychological evaluations, if any, of the prisoner proximate to the time of the offense.

SECTION 39. Paragraph one of section 133A of chapter 127 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by striking out said paragraph and inserting in place thereof the following new paragraph:

Section 133A. Notwithstanding the provisions of section two of chapter two hundred and sixty-five, every prisoner who is serving a sentence for life in a correctional institution of the commonwealth, except prisoners confined to the hospital at the Massachusetts Correctional Institution, Bridgewater, and except prisoners serving a life sentence for murder in the first degree who committed such offense on or after their eighteenth birthday, shall be eligible for parole, and the parole board shall, within sixty days before the expiration of fifteen years of such sentence, conduct a public hearing before the full membership unless a member of the board is determined to be unavailable as provided in this section. For the purposes of this section, the term unavailable shall mean that a board member has a conflict of interest to the extent that he cannot render a fair and impartial decision or that the appearance of a board member would be unduly burdensome because of illness, incapacitation, or other circumstance. Whether a member is unavailable for the purposes of this section shall be determined by the chair. Board members shall appear unless said chair determines them to be unavailable. Under no circumstances shall a parole hearing proceed pursuant to this section unless a majority of the board is present at the public hearing. Unless a board member is unavailable due to a conflict of interest, any board member who was not present at the public hearing shall review the record of the public hearing and shall vote in the matter.

SECTION 40. Section 133C of said chapter 127, as so appearing, is hereby amended by inserting after the words, “except prisoners serving a life sentence for murder in the first degree” and before the words, “and prisoners” the following:- who committed such offense on or after their eighteenth birthday,

SECTION 41. Section 13 of chapter 250 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out in line 3 the word “seventeen” and inserting in place thereof the following word:- eighteen

SECTION 42. Section 89A of chapter 276 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out in line 3 the word “seventeen” and inserting in place thereof the following word:- eighteen

SECTION 43. Section 2 of chapter 276A of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out in lines 6 and 10 the word “seventeen” in and inserting in place thereof the following word:- eighteen

SECTION 44. Section 6B of chapter 280 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out in line 3 the word “seventeen” and inserting in place thereof the following word:- eighteen

SECTION 45. No later than 180 days after the effective date of this act, the department of youth services shall, in consultation with the department of corrections, promulgate regulations regarding the housing of offenders convicted of murder in the first or second degree committed before the offender’s eighteenth birthday, in accordance with section 72B of chapter 119 of the General Laws.  Such regulations may include a requirement that such offenders who have reached their eighteenth birthday be segregated from others.

SECTION 46. No later than 180 days after the effective date of this act, the department of mental health shall, in consultation with the certified juvenile court clinicians training committee, promulgate regulations which provide minimum qualifications for the certification of experts in the field of comprehensive psychological and neuro-testing evaluation of juvenile offenders, in accordance with section 72D of chapter 119 of the General Laws.]

SECTION 47. Notwithstanding any general or special law to the contrary, each member appointed to the parole board shall, within 90 days of said appointment, receive training in understanding the psychological, social, and mental development of adolescents, and the particular circumstances of juvenile offenders.

The department of correction, in consultation with the administrative office of the trial court, shall, within 180 days of the effective date of this act, develop such training materials.

SECTION 48. Notwithstanding any general or special law to the contrary, each judge appointed to the juvenile court shall, within 90 days of said appointment, receive training in understanding the psychological, social, and mental development of adolescents, and the particular circumstances of juvenile offenders.

The administrative office of the trial court, in consultation with the department of correction, shall, within 180 days of the effective date of this act, develop such training materials.

SECTION 49. Notwithstanding the provisions of section two of chapter two hundred and sixty-five or section 133A of chapter 127 of the General Laws, or any other general or special law to the contrary, a person serving a life sentence for murder in the first degree as of the effective date of this act who committed such offense before his eighteenth birthday shall be eligible for parole under section one hundred and thirty-three A of chapter one hundred and twenty-seven when such person has served fifteen years of said confinement.

SECTION 50. Nothing in this act shall be construed to diminish, or otherwise alter, any right afforded under chapter 258B of the General Laws.