SENATE DOCKET, NO. 1001        FILED ON: 1/15/2015

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 71

The Commonwealth of Massachusetts

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PRESENTED BY:

James B. Eldridge

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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 promoting restorative justice practices.

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PETITION OF:

SENATE DOCKET, NO. 1001        FILED ON: 1/15/2015

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 71

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 52 OF 2013-2014.]

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:
 

SECTION 1. Whereas it is the policy of this Commonwealth that principles of restorative justice be included in shaping how the criminal justice system responds to those affected by crime, including those who have caused harm as well as, any direct and indirect persons in the community. The goal is to create repair measures tailored to each instance of wrongdoing, which are consistent, balanced and restorative.

Policy objectives are to:

(1) Include those most affected by crime in the pursuit of meaningful justice, answer questions and provide safety and meet the unique needs of those affected.

(2) Repair damage in the communities in which criminal acts occur.

(3) Reduce recidivism and the risk of more serious crimes in the future that may require a more intensive and costly response from the legal system, such as prosecution and incarceration.

Whereas it is the intent that law enforcement officials develop and employ restorative justice approaches whenever feasible. It is the further intent of the Legislature that such restorative justice approaches be designed to encourage participation by local community members and impacted parties, when they so choose, as well as public officials, in holding those who cause harm accountable for damage caused to communities and impacted parties, and in restoring them to the law-abiding community, through activities which may include but are not limited to ones which:

(1) Ask offenders to:

(A) Acknowledge wrongdoing and meet obligations to the impacted parties;

(B) Make restitution, if appropriate, for damage to those affected by the crime;

(C) Make reparation for damage to the community by fulfilling meaningful a service in the community; and

(D) When relevant, successfully complete treatment which addresses the offense or other underlying needs or undertake academic, vocational training or other self-improving activity.

(2) Aid in the recovery of impacted parties either in action or through symbolic gesture structured by the community-based restorative justice program. 

(3) Help identify the causes of crime and ways community members and municipal and Commonwealth can reduce or prevent crime in the future.

SECTION 2. Section 52 of chapter 119 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by adding the following:

“Community-based restorative justice program”, a diversion and rehabilitation option established on restorative justice principles that partners with police, courts, the office of probation and the community within which the offense occurred to offer impartial facilitators trained in restorative justice practices to engage responsible parties and impacted parties, or members of the community if there are no identifiable impacted parties, in a restorative justice meeting to develop a plan of repair.

“Impacted party”, the person or persons alleged to have suffered harm caused by, or been the victims of a crime committed by, the responsible party.

“Plan of repair”, a confidential written blueprint developed during the restorative justice process and agreed to by all parties consisting of specific actions to be taken by the responsible party to redress the harm caused to the impacted party or the community, which includes a timeline for the completion of the plan.

“Responsible party”, an offender or a person alleged to have caused harm to or committed a crime against the impacted party and who is willing to accept responsibility for that harm or crime.

“Restorative justice”, a comprehensive approach to community harm including criminal justice that emphasizes repairing the harm caused by an event or crime. Restorative justice is a set of principles that supports responsible parties to accept responsibility for their actions and prioritizes repairing the harm done to the impacted parties or the community.

“Restorative justice meeting”, includes but is not limited to responsible party-impacted party conferences, restorative dialogues, family group conferences, restorative circles of accountability and support, community group conferences, solution circles, peace circles, restorative circles and restorative mediation.

SECTION 3. Section 55B of said chapter 119, as so appearing, is hereby amended in lines 12-13 by inserting after the words “upon compliance with specific terms and conditions” the following:-

including a community-based restorative justice program,

SECTION 4. Section 39H of said chapter 119, as so appearing, is hereby amended after the second paragraph by inserting the following:-

The law enforcement officer may refer such child to a community-based restorative justice program, as defined by section 52 of this chapter.

SECTION 5. Section 3 of chapter 276A of the General Laws, as appearing in the 2012 Official Edition, is hereby amended after the third paragraph by inserting the following:-

Such programs may include a community-based restorative justice program, as defined in section 52 of chapter 119.

SECTION 6. Section 87A of chapter 276 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended in line 5 by inserting after the words “specified rehabilitative programs” the following:-

including a community-based restorative justice program, as defined in section 52 of chapter 119.

SECTION 7. Said chapter 276, as so appearing, is hereby amended by adding the following section:-

Section  X. Notwithstanding the provisions of any general or special law to the contrary, there shall be established an advisory committee to study and track the use of and referral to community-based restorative justice programs, as defined in section 52 of chapter 119. The advisory committee shall be trained in restorative justice practices prior to undertaking the duties in this section. The advisory committee shall consist of 18 members: 1 of whom shall be the secretary of public safety and security, or a designee; 1 of whom shall be the secretary of health and human services or a designee; 1 of whom shall be a representative of the Massachusetts District Attorneys Association; 1 of whom shall be a representative from the Massachusetts Committee for Public Counsel Services; 2 of whom shall be co-chairs of the joint committee on judiciary or their designees; 2 of whom shall be the co-chairs of the joint committee on children, families and persons with disabilities or their designee; 2 of whom shall represent police, of which one shall be a representative of the Massachusetts Police Association and one shall be a representative of the Massachusetts Chiefs of Police Association; 8 of whom shall be representatives of community-based restorative justice programs, as defined by section 52 of chapter 119, of which 1 shall be from a program that accepts police referrals, 1 shall work with school-aged juveniles and 1 shall be from a program that accepts referrals from the office of probation, a district attorney or a court; and 1 of whom shall be a representative from an organization that serves or advocates for victims of domestic violence, rape or sexual assault. The advisory committee shall track the use of community-based restorative justice programs and may make legislative, policy and regulatory recommendations to aid in the use of community-based restorative justice programs, including but not limited to: qualitative and quantitative outcomes for participants; recidivism rates of responsible parties; criteria for youth involvement and training; cost savings for the commonwealth; training guidelines for restorative justice facilitators and criteria for state certified programs; data on racial, socioeconomic and geographic disparities in the use of community-based restorative justice programs; guidelines for restorative justice best practices; appropriate training and funding sources for community-based restorative programs; and plans for the expansion of restorative justice programs and opportunities throughout the commonwealth. The advisory committee shall file a report of its findings and recommendations with the Governor, the clerks of the house of representatives and senate no later than December 31, 2016.

SECTION 8. Said chapter 276, as so appearing, is hereby amended by adding the following section:-

SECTION X. Notwithstanding the provisions of any general or special law to the contrary, there shall be established an Office of Restorative Justice under the Judiciary. The Office of Restorative Justice shall be staffed by at least one person to monitor and provide technical assistance to the community-based restorative justice programs, providers and other parties to the plan of repair. Subject to appropriation, the Office of Restorative Justice shall be funded not less than $200,000 to implement and execute duties.

SECTION 9. Said chapter 119, as so appearing, is hereby amended by adding the following:-

Section X.

(a) In deciding whether to divert a matter to a community-based restorative justice program, the following criteria may be considered: an alleged offender’s willingness to take responsibility; an alleged victim’s willingness to engage the alleged offender either in person or through a representative; the desires of other alleged victims, if any; whether the restorative justice process may be appropriately used in the case of multiple alleged victims; and reasonable assurances for physical and emotional safety of all in the process.

(b) Impacted and responsible parties may be referred to a community-based restorative justice program by police departments on a pre-complaint basis pursuant to the provisions of this act. 

(c) A responsible party may be diverted to a community-based restorative justice program pursuant to sections 39H or 55B of chapter 119 or section 3 of chapter 276A with the consent of the impacted party. An impacted party’s participation in a community-based restorative justice program shall be voluntary and the impacted party may participate through a representative. If there is not an impacted party to a harm or crime, or if an impacted party cannot be identified, cannot be contacted, does not wish to participate or does not respond, then the responsible party may be diverted to a community-based restorative justice program. If impacted parties participate in a community-based restorative justice program, then they may select community members, if any, which can participate in the process with them.

(d) A community-based restorative justice program shall engage the impacted party, if any, or the impacted party’s representative, if any, the responsible party, members of the community, if any, and other required parties to develop a plan of repair. The plan of repair may be made available for the review. The community-based restorative justice program may determine whether a responsible party has sufficiently completed a community-based restorative justice program, including the plan of repair. The plan of repair may be subject to changes during implementation of the plan if community-based restorative justice program recommends it. The completion of the plan of repair shall mark the end of the responsible party’s participation in a community-based restorative justice program.

(e) The Office of Restorative Justice shall ensure that a community-based restorative justice program provides a trained restorative justice facilitator to manage the restorative justice process, including holding the restorative justice meeting and the development of a plan of repair.

(f) Participation in a community-based restorative justice program shall not be used as evidence or as admission of guilt or civil liability in current or subsequent legal proceedings; provided however, that a responsible party’s participation in a community-based restorative justice program may be used as evidence in any legal proceeding to determine whether that responsible party has complied with the terms of any court order, condition of probation or other agreement stipulating a responsible party’s participation in such a program. All memoranda, and other work product prepared by a community-based restorative justice program and the program case files shall be confidential and not subject to disclosure in any judicial or administrative proceeding involving any of the parties to which such materials apply. Any communication made in the course of and relating to the subject matter of any plan of repair or restorative justice meeting shall be a confidential communication and not subject to disclosure in any judicial or administrative proceeding.