FILED ON: 5/31/2016
HOUSE . . . . . . . . . . . . . . . No. 4368
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The Commonwealth of Massachusetts
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In the One Hundred and Eighty-Ninth General Court
(2015-2016)
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An Act promoting restorative justice practices.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
The General Laws, as appearing in the 2014 Official Edition, are amended by adding the following new chapter:
Chapter 276B: Restorative Justice
SECTION 1. Policy Objectives.
It is the policy of this Commonwealth that principles of restorative justice are included as an option for criminal and juvenile justice practitioners and parties to certain crimes. It is the goal that law enforcement officials employ restorative justice approaches wherever applicable, as it may reduce recidivism and the risk of more serious crimes that would require a more intensive and costly response from the legal system, such as prosecution and incarceration. Restorative justice approaches should be designed by local community members; and impacted parties are encouraged to participate, when they so choose.
SECTION 2. Definitions.
As used in this chapter the following terms shall have the following meanings.
“Restorative justice,” a voluntary process that involves those who have a stake in an offense to collectively identify and address harms, needs and obligations, in order to understand the impact of a crime. Restorative Justice principles recognize crime violates the social fabric of our communities and relationships within them. Restorative justice requires an offender’s acceptance of responsibility for their actions and supports the offender as they make repair to the victim and/or community in which the harm occurred. Restorative justice also includes victims affected by crime in the process.
“Community-based restorative justice program,” a program established on restorative justice principles that engages parties to a crime and/or members of the community to develop a plan of repair. Programs may include the parties to a case, their supporters, and community members, or one-on-one dialogues between a victim and offender.
SECTION 3. Participation.
Participation in a community-based restorative justice program shall be voluntary and shall be available to both a juvenile and adult defendant. A juvenile or adult defendant may be diverted to a community-based restorative justice program with the consent of the District Attorney and the victim. Restorative justice shall be available at any stage of the case beginning immediately post arraignment. Restorative justice may be contemplated as a means of disposition, with judicial approval. If a juvenile or adult defendant successfully completes the restorative justice program, the charge will be dismissed. If a juvenile or adult defendant does not successfully complete the program or is found to be in violation of program requirements, the case will be returned to the court in which it was arraigned in order to commence with proceedings.
SECTION 4. Ineligible Offenses.
Certain offenses shall be ineligible, including: a sexual offense as defined by section 1 of chapter 123A; any offense against a family or household member as defined by section 13M of chapter 265; or any offense resulting in substantial impairment of the physical condition including any burn, subdural hematoma, injury to any internal organ, any injury which occurs as the result of repeated harm to any bodily function or organ including human skin or any physical condition which substantially imperils a person’s health or welfare. An offense resulting in the fracture of a bone is not automatically excluded, but may be considered ineligible in light of the facts and circumstances of the case.
SECTION 5. Confidentiality.
Participation in a community-based restorative justice program shall not be used as evidence or as an admission of guilt, delinquency, or civil liability in current or subsequent legal proceedings. Any communication made by a juvenile or adult defendant during the course of an assignment to a community-based restorative justice program shall be confidential. As such, it shall not be subject to disclosure in any judicial or administrative proceeding. Such evidence, however, shall be admissible in these proceedings if it is obtained through an independent source or would have been inevitably discovered by lawful means.
SECTION 6. Advisory Committee.
Notwithstanding the provisions of any general or special law to the contrary, there shall be established an advisory committee to review community-based restorative justice programs, as defined in chapter 276B. The advisory committee shall consist of twelve members. The Joint Chairs of the Judiciary Committee shall appoint those members and shall designate one member as Advisory Committee Chair. Members shall include a representative from the Executive Office of Public Safety and Security, the Executive Office of Health and Human Services, the Massachusetts District Attorneys Association, the Massachusetts Committee for Public Counsel Services, the Executive Office of the Trial Court, the Office of the Commissioner of Probation, the Massachusetts Chiefs of Police Association, the Massachusetts Office for Victim Assistance, three representatives from community-based restorative justice programs, and a current or past member of the Judiciary. The members of the Advisory Committee shall be appointed for six-year terms. 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 proscribed manner.
All advisory committee appointments shall be made not later than 60 days after the effective date of this bill. The first meeting of this advisory committee shall take place within 90 days of the effective date of this bill.
The advisory committee shall partner with an educational institution for data tracking and support as it monitors the use of community-based restorative justice programs and makes legislative, policy and regulatory recommendations to aid in the use of community-based restorative justice programs. Additional responsibilities of the committee include but are not limited to: evaluating cost savings; creating guidelines for restorative justice best practices including caseload and enrollment; identifying funding sources for community-based restorative justice programs; and establishing plans for the expansion of community-based restorative justice programs, educational outreach and awareness raising efforts throughout the Commonwealth.
The advisory committee shall, in its discretion, approve, monitor, and assist all community-based restorative justice programs to which a juvenile or adult defendant may be diverted pursuant to this chapter. The advisory committee shall issue approval of existing and new programs for a term of two years, and may renew approval for like terms, subject to revocation for cause, to any person, partnership, corporation, society, association or other agency or entity of any kind, deemed to be responsible and suitable to establish and maintain the high quality and individualized service expected of such a community-based restorative justice program.
The advisory committee shall file the first report of its findings, recommendations, and a list of approved community-based restorative justice programs with the Governor and the clerks of the House of Representatives and Senate no later than December 31, 2017. Reporting shall continue on an annual basis and will be due by the last day of each December.
SECTION 7. Amendment to Chapter 119.
The General Laws, as appearing in the 2014 Official Edition, are amended by adding section 86: Restorative Justice for Juveniles. Said chapter shall incorporate sections one through six of chapter 276B.