FILED ON: 7/13/2016

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2424

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 transparency, best practices, and better outcomes for children and communities.

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. Subsection (b) of section 37P of chapter 71 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by striking out the second paragraph and inserting in place thereof the following paragraph:-

In selecting a school resource officer, the chief of police shall assign candidates that the chief believes would strive to foster an optimal learning environment and educational community; provided, however, that the chief of police shall give preference to candidates who have received specialized training in (i) child and adolescent development, de-escalation and conflict resolution techniques with children and adolescents; (ii) behavioral health disorders in children and adolescents; (iii) alternatives to arrest and other juvenile justice diversion strategies;  and (iv) behavioral threat assessment methods. The appointment shall not be based solely on seniority. The performance of school resource officers shall be reviewed annually by the superintendent and the chief of police. The superintendent and the chief of police shall enter into a written memorandum of understanding to clearly define the role and duties of the school resource officer which shall be placed on file in the offices of the school superintendent and the chief of police. The memorandum of understanding shall: (A) state that the school resource officer may use traditional policing techniques, including arrest, citation and court referral only when necessary to address and prevent serious, real and immediate threats to the physical safety of the school and the wider community; (B) state that school resource officer shall not become involved in routine discipline in response to nonviolent school infractions, including tardiness, loitering, use of profanity, dress code violations and disruptive or disrespectful behaviors; (C) set forth protocols for utilizing the expertise of mental health professionals in addressing the needs of students with behavioral and emotional difficulties in crisis situations and otherwise; (D) require school resource officers to devote  professional development time to school-based or other training activities that promote heightened awareness of the various challenges faced by students in the school to which they are assigned, with an emphasis on those that impart information regarding child development, including the incidence and impact of adverse childhood experiences, de-escalation techniques and implicit or unconscious bias; (E) specify how the school and police departments shall regularly monitor and assure that school resource officer is complying with the terms of the memorandum of understanding and avoiding inappropriate arrest, citation or court referral; and (F) specify the manner and division of responsibility for collecting and reporting all school based arrests, citations and court referrals of students to the department of elementary and secondary education in accordance with regulations promulgated by that department which shall collect and publish disaggregated data in a like manner as school discipline data is made available for public review.

SECTION 1A. Section 23 of chapter 90 of the General Laws, as so appearing, is hereby amended by inserting after the figure “$500”, in line 53, the following words:- ; provided, however, that notwithstanding any general or special law to the contrary, a finding of delinquency shall not be entered against a person against whom such a complaint has been issued.

SECTION 2. Section 34J of said chapter 90, as so appearing, is hereby amended by inserting after the figure “$500” in line 59, the following words:- ; provided, however, that notwithstanding any general or special law to the contrary, any person who violates this section who has not been previously determined responsible for or convicted of a violation of this section, or against whom a finding of delinquency or a finding of sufficient facts to support a conviction has not been previously rendered, shall not have a finding of delinquency entered against such person.

SECTION 3. Section 52 of chapter 119 of the General Laws, as so appearing, is hereby amended by striking out the definitions of “Court” and “Delinquent child” and inserting in place thereof the following 3 definitions:-

“Civil infraction”, a violation for which a civil proceeding is allowed and for which the court shall neither sentence a violator to a term of incarceration nor appoint counsel pursuant to chapter 211D.

“Court,” a division of the juvenile court department of the trial court.

“Delinquent child”, a child between 11 and 18 years of age who commits an offense against a law of the commonwealth; provided, however, that such offense shall not include a civil infraction or a violation of a municipal ordinance or by-law.

SECTION 4. Section 54 of said chapter 119, as so appearing, is hereby amended by striking out, in line 2,  the word “seven” and inserting in place thereof the following figure:- 11.

SECTION 5. Section 67 of said chapter 119, as so appearing, is hereby amended by striking out, in line 2,  the word “seven” and inserting in place thereof the following figure:- 11.

SECTION 6. Section 68 of said chapter 119, as so appearing, is hereby amended by striking out, in lines 1 and 34, the word “seven” and inserting in place thereof, in each instance, the following figure:- 11.

SECTION 7. Section 68A of said chapter 119, as so appearing, is hereby amended by striking out, in line 1, the word “seven” and inserting in place thereof the following figure:- 11.

SECTION 8. Section 84 of said chapter 119, as so appearing, is hereby amended by striking out, in line 12, the word “seven” and inserting in place thereof the following figure:- 11.

SECTION 9.  Said chapter 119 is hereby further amended by adding the following 2 sections:-

Section 86.  (a) For the purposes of this section and section 87, the following words shall have the following meanings unless the context clearly requires otherwise:

“Juvenile”, a person appearing before a division of the juvenile court department who is under the age of 18 in a delinquency, child requiring assistance or care and protection case, or a person under the age of 21 in a youthful offender case.

“Restraints”, devices that limit voluntary physical movement of an individual, including leg irons and shackles that have been approved by the trial court department.

(b) A juvenile shall not be placed in restraints during court proceedings and any restraints shall be removed prior to the appearance of  a juvenile before the court at any stage of any proceeding unless the justice presiding in the courtroom issues an order and makes specific findings on the record that: (i) restraints are necessary because there is reason to believe that a juvenile presents an immediate and credible risk of escape that cannot be curtailed by other means; (ii) a juvenile poses a threat to the juvenile’s own safety or to the safety of others; or (iii) restraints are reasonably necessary to maintain order in the courtroom. 

(c) In making the specific findings under subsection (b), the presiding justice shall consider any of the following factors prior to issuance of an order:

(i) the seriousness of the present charge, including whether the charge supports a concern that the juvenile has an incentive to attempt to escape;

(ii) the prior offense history of the juvenile;

(iii) any past disruptive courtroom behavior by the juvenile;

(iv) any past behavior by the juvenile that presented a threat to the juvenile’s own safety or the safety of others;

(v) any present behavior that indicates a current threat to the juvenile’s own safety or the safety of others;

(vi) any previous or attempted escapes;

(vii) whether the juvenile poses a risk of flight from the courtroom;

(viii) any threats of harm to others or threats to cause a disturbance; and

(ix) any ongoing security concerns in the courtroom and courthouse.

(e) The court officer charged with custody of a juvenile shall report any security concerns to the presiding justice. On the issue of courtroom or courthouse security, the presiding justice may receive information from the court officer charged with custody of a juvenile, a probation officer or any source determined by the court to be credible.

The authority to use restraints shall reside solely within the discretion of the presiding justice at the time that a juvenile appears before the court.  A juvenile court justice shall not impose a blanket policy to maintain restraints on all juveniles or a specific category of juveniles who appear before the court.

SECTION 9A. Chapter 120 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by inserting after section 10  the following  section:-

Section 10B.  No person under 18 years of age and committed to the department of  youth services shall be placed in involuntary room confinement as a consequence for noncompliance, punishment or harassment or in retaliation for any conduct.

SECTION 11. Section 133A of chapter 127 of the General Laws, as so appearing, is hereby amended by adding the following paragraph:-

If a prisoner is serving a life sentence for a conviction of murder as defined in section 1 of chapter 265 which was committed before the prisoner’s eighteenth birthday, the prisoner shall have the right to have appointed counsel at the parole hearing if the prisoner is deemed to be indigent and shall have the right to funds for experts as determined by the standards in chapter 211D.

SECTION 12. Section 20 of chapter 233 of the General Laws, as so appearing, is hereby amended by striking out the clause Fourth and inserting in place thereof the following clause:-

Fourth, Except in a proceeding before an inquest, grand jury, trial of an indictment or complaint or any other criminal, delinquency or youthful offender proceeding where the victim in the proceeding is not a family member and does not reside in the family household, neither the parent nor minor child shall testify against the other; provided, however, that for the purpose of this clause, “parent” shall mean the biological or adoptive parent, stepparent, foster parent, legal guardian or any other person who has the right to act in loco parentis for the child; and provided, further, that in cases where the victim is a family member and resides in the family household, the parent shall not testify as to any communication with the child that was for the purpose of seeking advice regarding the child’s legal rights.

SECTION 13. Section 53 of chapter 272 of the General Laws, as so appearing, is hereby amended by inserting after the figure “$150”, in line 10, the following words:- “; provided, however, that notwithstanding any general or special law to the contrary, no person who violates this subsection shall have a finding of delinquency entered against that person for a first offense,”

SECTION 14. Chapter 276 of the General Laws is hereby amended by inserting after section 100D the following section:-

Section 100E. (a) For the purpose of this section, the words “expunge”, “expunged” and “expungement” shall mean permanent erasure or destruction of information so that it is not maintained in any file or record.

(b) Notwithstanding section 100A or any other general or special law to the contrary, a person of any age who has a record of juvenile or criminal court appearances and dispositions on file with the office of the commissioner of probation may have misdemeanor convictions or adjudications expunged from that person’s criminal and court records if the offense was committed before the person turned 18 years of age and upon the filing of a petition with a judge in the court in which the appearance or disposition occurred. The form of the petition shall be furnished by the commissioner of probation. Before a petition is filed, the person shall have: (i) completed a sentence or disposition imposed by the court or, where applicable, a period of commitment or probation imposed pursuant to section 58 of chapter 119; (ii) not been adjudicated delinquent or found guilty of any new criminal offense in the commonwealth before the completion of that person’s juvenile sentence; and (iii) not been adjudicated delinquent or found guilty of any new criminal offense in the commonwealth since the completion of a sentence or disposition imposed by the court or, where applicable, a period of commitment or probation imposed pursuant to said section 58 of said chapter 119.  The court may, in the discretion of the court, upon motion of that person, expunge the appearance or disposition recorded for a misdemeanor conviction or adjudication if the offense was committed before the person turned 18 years of age.

For any petition granted by the court under this section, the clerks and probation officers of the courts in which the proceedings occurred or were initiated shall expunge the records of the proceedings in their files.

The court shall, at the time of imposing any sentence, disposition or period of commitment or probation  under said section 58 of said chapter 119, inform, in writing, all eligible individuals of their right to seek expungement under this section.

(c) Notwithstanding any other general or special law to the contrary, in the case of an expunged record, the commissioner of probation or the clerk of courts in a district court, superior court, juvenile court or the Boston municipal court, shall report that no record exists in response to inquiries by authorized persons. An applicant for employment with an expunged record on file with the commissioner of probation may answer “no record” to any inquiry regarding prior arrests, delinquency appearances, delinquency adjudications or delinquency dispositions that were contained in an expunged record. 

Once the commissioner expunges a record within the commissioner’s possession, the commissioner shall notify the department of youth services of the expungement and the department shall expunge the records from the department’s files.  Any records subject to an expungement order shall be expunged both in their electronic form and their physical form.

The appearances and dispositions expunged shall not operate to disqualify any person in an examination, appointment or application for public employment in the service of the commonwealth or a subdivision thereof and no such appearances or dispositions shall be used against a person in any way in any court proceeding or hearing before a court, board or commission to which that person is a party to the proceeding.

SECTION 15. Section 70C of chapter 277 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by striking out, in line 8, the words “, chapter 119”.

SECTION 16. There shall be a juvenile justice data task force to make recommendations on coordinating and modernizing the juvenile justice data systems and reports that are developed and maintained by state agencies and the courts. The task force shall consist of the following members or their designees: the chief justice of the trial court; the chief justice of the juvenile court; the secretary of health and human services; the commissioner of probation; the commissioner of youth services; the commissioner of children and families; the commissioner of mental health; the commissioner of transitional assistance; the executive director of Citizens for Juvenile Justice, Inc.; the president of the Massachusetts Society for the Prevention of Cruelty to Children; the executive director of the Children’s League of Massachusetts; the executive director to the Massachusetts District Attorneys Association; a representative of the Massachusetts Chiefs of Police Association; and 2 members to be appointed by the governor, each of whom shall have experience or expertise related to the juvenile justice system or the design and implementation of juvenile justice data systems or both. 

The task force shall analyze the capacities and limitations of the data systems and networks used to collect and report state and local juvenile caseload and outcome data. The analysis shall include all of the following:

(i) a review of the relevant data systems, studies and models from the commonwealth and other states;

(ii) identification of changes or upgrades to current data collection processes to remove inefficiencies, track and monitor state agency and court-involved juveniles and facilitate the coordination of information sharing between relevant agencies and the courts;

(iii) identify racial and ethnic disparities apparent within the juvenile justice system and ways to reduce such disparities; and

(iv) any other matters which the task force determines may improve the collection of, and interagency coordination of, juvenile justice data.

The task force shall file a report on the options for improving interagency coordination, modernization and upgrading of state and local juvenile justice data and information systems. The report shall include, but not be limited to: (i)  recommended additional collection and reporting responsibilities for agencies, departments or providers; (ii) recommendations for the creation of a web-based statewide clearinghouse or information center that would make relevant juvenile justice information on operations, caseloads, dispositions and outcomes available in a user-friendly, query-based format for stakeholders and members of the public, including a feasibility assessment of implementing such a system; and (iii) a plan for improving the current juvenile justice reporting requirements, including streamlining and consolidating current requirements without sacrificing meaningful data collection and including a detailed analysis of the information technology and other resources necessary to implement improved data collection.   The report shall be filed with the clerks of the house and senate not later than January 1, 2017 and the clerks shall forward the same to the senate and house chairs of the joint committee on the judiciary and the senate and house chairs of the joint committee on children, families and persons with disabilities.

SECTION 17.  The trial court departments, including the juvenile court department, shall assess the feasibility and utility of and make recommendations concerning the creation of youth status as a distinct mitigating factor in any proceeding against a juvenile.

As part of the assessment, the courts shall consider:

(i)  the procedure for obtaining a finding of youth status in a given proceeding, including the type, if any, of presumption that should be made with respect to youth status as a distinct mitigating factor in any proceeding against a juvenile and the burden required to overcome any presumption;

(ii) the issues that a finding of youth status should mitigate including, but not limited to, intent, knowledge, premeditation and purpose or the reasonableness of a juvenile’s belief that the juvenile faced an imminent threat of death or serious bodily injury or the reasonableness of the juvenile’s perception of the amount of force that was necessary to combat the perceived threat; and

(iii) the sentencing modification that should attach  in proceedings where youth status has been found to be a mitigating factor.

The trial court departments shall collaborate to prepare a report which shall include their findings and recommendations and drafts of legislation necessary to implement those recommendations.  The report shall be submitted to the clerks of the house and senate  not later than August 1, 2017 and the clerks shall forward the report to the senate and house  chairs of the joint committee on the judiciary.