Bill S.797

SENATE DOCKET, NO. 471 FILED ON: 1/16/2013

SENATE . . . . . . . . . . . . . . No. 797

By Ms. Spilka, a petition (accompanied by bill, Senate, No. 797) of Karen E. Spilka, Paul R. Heroux and Carolyn C. Dykema for legislation to establish age-appropriate accountability for children for crimes. The Judiciary.

The Commonwealth of Massachusetts

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In the Year Two Thousand Thirteen

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An Act establishing age-appropriate accountability for children.

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. Section 72B of chapter 119 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by striking out paragraphs 1, 2, and 3, and inserting in place thereof the following paragraphs:-

Notwithstanding the provisions of section 2 of chapter 265, 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 department shall commit the person to imprisonment in the state prison for not more than 20 years or for life. The court shall fix the minimum term for any person committed to the state prison for life pursuant to this paragraph, which shall not be less than 10 years nor more than 20 years. 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 the minimum term as set by the court. 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 2 of chapter 265, 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 department shall commit the person to imprisonment in the state prison for not more than 15 years or for life. The court shall fix the minimum term for any person committed to the state prison for life pursuant to this paragraph, which shall not be less than 10 years nor more than 15 years. 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 the minimum term as set by the court. Thereafter said person shall be subject to the provisions of law governing the granting of parole permits by the parole board.

In determining whether to commit said person to imprisonment for a term of years, pursuant to this section, or life and the minimum term of incarceration for a life sentence, the court shall consider and make findings on the record regarding age-related considerations including: (1) the age at the time of the offense; (2) hallmark features of adolescence, including immaturity, impetuosity, and the ability to appreciate risks and consequences; (3) family and home environment prior to and at the time of the offense; (4) extent of said persons participation in the offense; (5) the impact of familiar and peer pressures; (6) history of prior felony convictions or adjudications; and (7) the potential for rehabilitation. A showing of age-related diminished culpability or capacity for change shall foreclose the imposition of a life sentence.

If the court commits said person to the state prison for life, the court shall specify an individualized program of rehabilitation, consistent with programming that the Department of Correction provides, reasonably related to the offense and the defendant that, if complied with by the defendant during the time period prescribed by the court, would indicate that release is not incompatible with the welfare of society.

Any sentence imposed for offenses arising out of the same transaction and occurrence shall run concurrent with the governing sentence.

SECTION 2. Paragraph 4 of said section 72B of said chapter 119, as so appearing, is hereby amended by striking out the word, “seventeenth”, where it so appears in the first and second instance, and inserting in place thereof the word:-

twenty-first

SECTION 3. Paragraph 5 of said section 72B of said chapter 119, as so appearing, is hereby further amended by striking out the words, “superior court”, where it so appears, and inserting in place thereof the words:-

juvenile court department

SECTION 4. Said Chapter 119 of the General Laws, as so appearing, is hereby amended by inserting after section 72B the following section:-

Section 72C. A person who is found guilty of murder in the first degree committed on or after his fourteenth birthday and before his eighteenth birthday, and has been committed to imprisonment in a state prison for life, may move for resentencing in the juvenile court department after having served 10 years of the sentence and at least once in each ensuing 5 year period for subsequent resentencing of a life sentence to a substitute sentence of not more than 20 years. Any sentence imposed for offenses arising out of the same transaction and occurrence shall run concurrent with the governing sentence.

The defendant shall file the motion for resentencing with the juvenile court department and serve a copy of the motion on the office of district attorney of the district where the offense was originally prosecuted. The motion shall include the defendant’s statement that the offense occurred prior to the defendant’s eighteenth birthday and that the defendant was committed to imprisonment in a state prison for life.

Upon motion by the defendant, the juvenile court department shall hold a hearing to consider whether to resentence the defendant to a substitute sentence of not more than 20 years. The defendant shall have the right to be present at the hearing, he shall be afforded reasonable opportunity to prepare and present evidence, and he shall have the right to call and examine experts. In determining whether to resentence the defendant to a substitute sentence of not more than 20 years, the court shall consider and make findings on the record regarding demonstrated rehabilitation and age-related considerations including: (1) mitigating circumstances relevant to the defendant at the time of the offense; (2) evidence of cognitive and emotional development since the time of the offence; (3) the frequency, nature and regularity of the defendant’s disciplinary history while incarcerated; (4) history of the defendants participation in programming and activities, and access to said programming and activities, to further his rehabilitation; and (5) other factors demonstrating rehabilitation.

The defendant shall have the right to have counsel appointed if deemed to be indigent as determined by the standards under chapter 211D. The Department of Correction shall provide notice of the right to counsel to the defendant and the Committee for Public Counsel Services no less than 120 days prior to the defendant becoming eligible for resentencing.

If the defendant is resentenced to a substitute sentence of not more than 20 years, time served on the original sentence shall be deemed to have been served on the substitute sentence.

Upon the denial of resentencing, the court shall specify an individualized program of rehabilitation, consistent with programming that the Department of Correction provides, reasonably related to the offense and the defendant that, if complied with by the defendant during a time period prescribed by the court, would indicate that release is not incompatible with the welfare of society.

SECTION 5. Said Chapter 119 of the General Laws, as so appearing, is hereby amended by inserting after section 72B the following section:-

Section 72D. A person who is found guilty of murder in the second degree committed on or after his fourteenth birthday and before his eighteenth birthday, and has been committed to imprisonment in a state prison for life, may move for resentencing in the juvenile court department after having served 10 years of the sentence and at least once in each ensuing 5 year period for subsequent resentencing of a life sentence to a substitute sentence of not more than 15 years. Any sentence imposed for offenses arising out of the same transaction and occurrence shall run concurrent with the governing sentence.

Upon motion by the defendant, the juvenile court department shall hold a hearing to consider whether to resentence the defendant to a substitute sentence of not more than 15 years. The defendant shall have the right to be present at the hearing, he shall be afforded reasonable opportunity to prepare and present evidence, and he shall have the right to call and examine experts. In determining whether to resentence the defendant to a substitute sentence of not more than 15 years, the court shall consider and make findings on the record regarding demonstrated rehabilitation and age-related considerations including: (1) mitigating circumstances relevant to the defendant at the time of the offense; (2) evidence of cognitive and emotional development since the time of the offence; (3) the frequency, nature and regularity of the defendant’s disciplinary history while incarcerated; (4) history of the defendant participation in programming and activities, and access to said programming and activities, to further his rehabilitation; and (5) other factors demonstrating rehabilitation.

If the defendant is resentenced to a substitute sentence of not more than 15 years, time served on the original sentence shall be deemed to have been served on the substitute sentence.

SECTION 6. Section 74 of chapter 119, as so appearing, is hereby amended by striking out paragraph 2.

SECTION 7. Said chapter 119, as so appearing, is hereby further amended by inserting after section 85 the following section:-

Section 86. Notwithstanding any general or special law to the contrary, the provisions of sections 52 through 85 shall apply to a person who is charged with murder occurring on or after his fourteenth birthday and before his eighteenth birthday.

SECTION 8. Section 48 of chapter 127 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by inserting after the first paragraph the following paragraph:-

The commissioner shall ensure that any person committed to the custody of the department who has a court mandated individualized program of rehabilitation, pursuant to section 72C of chapter 119, has meaningful, substantial, and consistent access to: educational; vocational; and treatment programs including, but not limited to, substance abuse and mental health programming, and other appropriate programming as determined by the commissioner.

SECTION 9. Section 133A of said chapter 127, as most recently amended by Chapter 192 of the Acts of 2012, is hereby further amended by striking out the first paragraph and inserting in place thereof the following paragraph:-

Notwithstanding the provisions of section 2 of chapter 265, 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, except prisoners serving a life sentence for murder in the first degree who committed such offense on or after their eighteenth birthday, and except prisoners serving more than one life sentence arising out of separate and distinct incidents that occurred at different times, where the second offense occurred subsequent to the first conviction, shall be eligible for parole at the expiration of the minimum term fixed by the court under section 24 of chapter 279. The parole board shall, within 60 days before the expiration of such minimum term, conduct a public hearing before the full membership unless a member of the board is determined to be unavailable as provided in this section. Notwithstanding the previous sentence, the board may postpone a hearing until 30 days before the expiration of such minimum term, if the interests of justice so require and upon publishing written findings of the necessity for such postponement. 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 10. Paragraph 3 of section 133A of chapter 127, as most recently amended, is hereby further amended by striking out the word, ‘After,’ and inserting in place thereof the following words:-

Except for prisoners who are serving a life sentence for a murder who committed such offense prior to their eighteenth birthday, after

SECTION 11. Said section 133A of said chapter 127, as most recently amended, is hereby further amended by inserting after the third paragraph the following paragraphs:-

If the prisoner is serving a life sentence for murder committed before his eighteenth birthday, the parole board may, by a majority vote of its members, grant to such prisoner a parole permit to be at liberty upon such terms and conditions as it may prescribe for the unexpired term of his sentence. The parole board shall consider and make findings on the record regarding demonstrated rehabilitation and age-related considerations including: (1) evidence of cognitive and emotional development since the time of the offense; (2) the frequency, nature and regularity of the defendant’s disciplinary history while incarcerated; (3) history of the defendants participation in programming and activities, and access to said programming and activities, to further his rehabilitation; and (4) other factors demonstrating rehabilitation. If such prisoner has completed his most recent individualized program of rehabilitation, pursuant to section 72C of chapter 119, the parole board shall grant a parole permit unless, by a vote of two-thirds of its members, the parole board determines that he is likely to cause injury to persons. If such permit is not granted, the parole board shall, at least once in each ensuing five year period thereafter, consider carefully and thoroughly the merits of each such case on the question of releasing such prisoner on parole, and may, by a vote of a majority of its members, grant such parole permit.

If the prisoner is serving a life sentence for murder committed before his eighteenth birthday, he shall have the right to have counsel appointed if deemed to be indigent as determined by the standards under chapter 211D. Said board shall at least 90 days before such hearing notify the prisoner of this right.

SECTION 12. 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 13. The third sentence of section 24 of chapter 279, as most recently amended by Chapter 192 of the Acts of 2012, is hereby further amended by inserting after the word “degree” the following words:-

, except in the case of a prisoner serving a life sentence for murder who committed such offense prior to their eighteenth birthday

SECTION 14. This act shall take effect upon its passage.

Name:	District/Address:
Karen E. Spilka	Second Middlesex and Norfolk
Paul R. Heroux	2nd Bristol
Carolyn C. Dykema	8th Middlesex