Bill H.3579

HOUSE DOCKET, NO. 2488 FILED ON: 1/19/2017

HOUSE . . . . . . . . . . . . . . . No. 3579

By Ms. Dykema of Holliston, a petition (accompanied by bill, House, No. 3579) of Carolyn C. Dykema and others relative to juvenile or youthful offenders. The Judiciary.

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninetieth General Court
(2017-2018)

_______________

An Act to support dual-status youth in the Commonwealth.

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 16U of chapter 6A of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by adding the following clause:-

(9) include assessments of the utilization of family resource centers by families with adolescents generally and at-risk youth specifically; provided, that the goal of this assessment shall be to establish the current level of and types of service utilization and the need for expansion of services that may reduce risk factors.

SECTION 2. Chapter 6A of the General Laws is hereby amended by inserting after section 16X the following section:-

Section 16Y. The department of children and families shall conduct a survey of families with children in kinship care to assess the need for additional supports for caretakers.

SECTION 3. The General Laws are hereby amended by adding the following chapter:-

Chapter 18D.

COLLECTION OF JUVENILE JUSTICE CONTACT DATA

Section 1. As used in this chapter the following words shall have the following meanings:-

“Contact”, any action, order, practice, or procedure by law enforcement personnel, court personnel, or any official of the commonwealth in interacting with a juvenile in response to any type of offense.

“Juvenile”, a youth between the age of seven and eighteen and up to the age of 22 if the individual remains within the jurisdiction of the juvenile court, and children aged fourteen to eighteen who are charged with first or second degree murder pursuant to section 74 of chapter 119;

“Racial and ethnic category”, the socio-cultural racial and ethnic category of an individual as determined in a manner that is consistent with the categories established by the United States Department of Justice Office of Juvenile Justice and Delinquency Prevention.

“Type of offense”, category of offense that is consistent with the categories established and utilized by the National Incident-Based Reporting System published by the Uniform Crime Reporting Program of the Federal Bureau of Investigation.

Section 2. (a). The child advocate shall identify information to be collected by the attorney general, the chief justice for administration and management of the trial court, the commissioner of probation, the secretary of public safety and security, and the secretary of health and human services in order to evaluate the frequency and outcome of contacts between juveniles of each racial and ethnic category and law enforcement personnel, court personnel, and other Commonwealth officials. Information shall include, but not be limited to, the type of offense which resulted in the contact and the age, gender, and racial and ethnic category of the juvenile. The child advocate may provide guidance regarding the manner in which racial and ethnic category data is collected, with consideration of the juvenile’s self-reporting of such categories. In identifying information to be collected, the child advocate shall include information the Commonwealth is required to report under the United States Juvenile Justice & Delinquency Prevention Act, including without limitation the requirements for applications and reporting for formula grants under 28 CFR 31.

(b) The attorney general, the chief justice for administration and management of the trial court, the commissioner of probation, the secretary of public safety and security, and the secretary of health and human services shall collaborate to establish procedures for the collection of the information identified under subsection (a).

Section 3. (a). The commissioner of the department of correction, the sheriffs of each county, the parole board and law enforcement officials including the department of state police, municipal police departments, Massachusetts Bay Transportation Authority police, any school-based police from a local education authority, shall collect the information identified in section 2 for each juvenile with whom they have contact and transmit the information to the secretary of public safety and security on a quarterly basis. The secretary shall study and analyze the information collected and file a report with the clerks of the house of representatives and senate each year on January 15. A copy of the report and the information collected shall be provided to the office of the child advocate and made available to the public on the website of the executive office of public safety and security.

(b) Judicial officials including clerk magistrates, the commissioner and personnel of the department of probation, and personnel and justices of the trial court shall collect the information identified in section 2 for each juvenile with whom they have contact and transmit the information to the trial court’s chief justice for administration and management on a quarterly basis. The chief justice shall study and analyze the information collected and file a report with the supreme judicial court and the clerks of the house of representatives and senate each year on January 15. A copy of the report and the information collected shall be provided to the office of the child advocate and made available to the public on the websites of the trial court and the department of probation.

(c) District attorneys shall collect the information identified in section 2 for each juvenile with whom they have contact and transmit the information to the attorney general on a quarterly basis. The attorney general shall study and analyze the information collected and file a report with the clerks of the house of representatives and senate each year on January 15. A copy of the report and the information collected shall be provided to the office of the child advocate and made available to the public on the website of the attorney general.

(d) The department of youth services shall collect the information identified in section 2 for each juvenile with whom they have contact and transmit the information to the secretary of health and human services on a quarterly basis. The secretary shall study and analyze the information collected and file a report with the clerks of the house of representatives and senate each year on January 15. A copy of the report and the information collected shall be provided to the office of the child advocate and made available to the public on the website of the executive office of health and human services.

Section 4. The information acquired under the provisions of this chapter shall be used only for statistical purposes. Data concerning the identity of an individual who had contact with the juvenile justice system shall be removed from information made available to the public.

SECTION 4. Chapter 119 of the General Laws is hereby amended by inserting after section 58 the following section:-

Section 58A½. (a) The chief justice for the juvenile court department shall direct judges of the juvenile court to implement the sentencing best practices as set forth in this section:-

(i) At sentencing and case disposition, a judge shall keep the mandates of section 53 in mind, ensuring that the juvenile code shall be liberally construed so that the care, custody, and discipline of the children brought before the court shall approximate as nearly as possible that which they should receive from their parents, and that, as far as practicable, they shall be treated, not as criminals, but as children in need of aid, encouragement and guidance;

(ii) A judge shall consider that the principal aim and underlying philosophy of the commonwealth’s juvenile justice system is not a punitive scheme strictly akin to the adult criminal justice system, but is primarily rehabilitative, cognizant of the inherent differences between juvenile and adult offenders, and geared toward the correction and redemption to society of delinquent children;

(iii) A judge shall consider that society has a reasonable expectation that juvenile offenders will be held accountable, mindful to balance this expectation with the rehabilitative nature of juvenile court.

(iv) In formulating a disposition or sentence for a juvenile or youthful offender, a judge may consider the following:

(1) traditional factors and sources of information;

(2) the nature and circumstances of the offense;

(3) the victim impact statement;

(4) a pre-sentence report of probation;

(5) the court and prior delinquency record;

(6) the success or lack of success of any past treatment or delinquency disposition;

(7) the nature of services available through the juvenile justice system;

(8) the youth’s age and maturity; and

(9) the likelihood of avoiding future criminal conduct.

(v) A judge may wish to consider that, as a general proposition, research on adolescent brain development indicates that adolescents are:

(1) less able than adults to control impulses through reason;

(2) disposed to over-value short term benefits as compared to long term consequences; and

(3) are immensely susceptible to negative peer influences.

(vi) A judge may wish to consider the research which shows adolescents develop over time and pose less of a public safety risk as they become less impulsive and more capable of making considered decisions. Pursuant to the maturational arc of adolescence, under a theory experts call “natural desistance,” research suggests that more than half of the juveniles who are arraigned would not return to juvenile court.

(vii) A judge may consider that in some cases, confinement of the youth is necessary to achieve the goals of rehabilitation and public safety. A judge shall be mindful that, in the vast majority of cases, the goals of juvenile court can be met through community-based rehabilitation. Unnecessary institutional confinement, even for one night, may lead to harmful exposure to negative peer influences, and may have the unintended consequence of an adolescent self-identifying as an offender, and may actually increase recidivism rates among juvenile offenders.

(viii) A judge shall tailor a probation sentence and conditions to carefully meet the goals of probation. This is dependent upon, both the circumstances and characteristics of the particular juvenile as well as the nature and circumstances of the offense. Careful consideration shall be given to not only the length of supervision, but also the specific conditions taking into account that: (1) extended program involvement beyond the average length of program involvement does not increase effectiveness; (2) that “less may be best” for some juveniles; or (3) that the issue facing the juvenile is best addressed in the juvenile court system, or whether the issue is best addressed through some other service delivery system.

(ix) When available, risk versus need assessments may be used to help a disposition or sentencing judge determine who may best be served by probation, and with what conditions. For example a youth with a low risk to reoffend should be involved with the court minimally or in a diversion program. Youth with a moderate to high risk of reoffending should be subject to the minimum level of supervision and control necessary to promote public safety.

(x). At sentencing, a judge may wish to consider whether certain probation conditions will have unintended consequences: a supervision fee that creates an impossible financial hardship for example, or whether the youth may face other serious collateral consequences for an adjudication or conviction.

(xi) To promote confidence in the fairness of the proceedings, where appropriate, a judge may wish to articulate the reasons for why they are imposing a certain sentence or certain probationary conditions.

(xii) At case disposition or sentencing, a judge shall consider whether the youth before the court has suffered trauma, whether sufficient evaluation has occurred to determine the youth’s needs), the effect trauma has had on the youth and their behavior, and whether there are steps that can be taken to help address the trauma and resulting behavioral issues.

(xiii) At sentencing or disposition, a judge may wish to consider the principles of positive youth development (PYD), to ensure the youth has their formative needs met to make a successful transition into adulthood. Principles of PYD include ensuring the youth has access to nurturing relationships with caring adults, positive peer relationships, good physical and mental health, effective education and job skills, and leadership and autonomous decision making opportunities.

(xiv) A sentencing or dispositional judge should strive to be ever-mindful of the effects of implicit bias on decision making. For example, disparate treatment of minority individuals has long-reaching impact and youth of color are vastly over-represented in the justice system.

(xv) The potential benefits of diversion and pre-trial probation as a dispositional tool should be considered whenever possible. Research suggests that youth given the opportunity for diversion have lower rates of recidivism.

(xvi) At sentencing or case disposition, a judge should consider whether the youth before the court has substance abuse issues, whether further evaluation is warranted, and if so, whether the most effective means to address the issue been identified for this particular youth.

(xvii) At sentencing or disposition, each youth before the court shall be individual assessed. A judge may wish to consider the use of reliable risk and needs assessment tools to connect appropriate services to the needs and risk level of each youth. In appropriate cases, a judge may also wish to consider ordering an evaluation of the youth pursuant to section 68A.

(xviii) Careful consideration shall be given by the judge to whether the youth before the court is “dually-involved”, which for the purposes of this section shall mean a youth with both department of children and families’ and delinquency involvement, or whether the youth has mental health issues. For example, dually involved youth have significant trauma histories, and have often suffered significant disruption and losses in their normal functioning and development. A sentencing or dispositional judge may consider an integrated team approach where diversion or other appropriate case services can be explored.

(xix) Pursuant to chapter 258B, a judge shall ensure that the victim of a crime has the right to confer with probation prior to the filing of a pre-sentence report, request restitution, and be heard through an oral or written impact statement, or at any other time as deemed appropriate by the court.

(xx). A judge shall participate in coordinated sentencing and case disposition panel discussions with peers, and take the opportunity to view first-hand division for youth services facilities.

(xi). A judge shall periodically review relevant and material data and statistics relative to juvenile sentencing, and shall keep informed of the current state of the science and research as it relates to adolescent development and evidence-based best sentencing practices.

SECTION 5. Chapter 276 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by striking out section 100B and inserting in place thereof the following section:-

Section 100B. (a) Any person having a record of entries of a court appearance in any proceeding pursuant to section 52 to 62 of chapter 119, inclusive, in the commonwealth on file in the office of the commissioner of probation may, on a form furnished by the commissioner, signed under the penalties of perjury, request that the commissioner seal such file. The commissioner shall comply with such request provided: (1) that any court appearance or disposition including court supervision, probation, commitment or parole, the records for which are to be sealed, terminated not less than one year prior to said request; (2) that said person has not been adjudicated delinquent or found guilty of any criminal offense within the commonwealth in the one year preceding such request, except motor vehicle offenses in which the penalty does not exceed a fine of five-hundred and fifty dollars nor been imprisoned under sentence or committed as a delinquent within the commonwealth within the preceding one year; and (3) said form includes a statement by the petitioner that he has not been adjudicated delinquent or found guilty of any criminal offense in any other state, United States possession or in a court of federal jurisdiction, except such motor vehicle offenses as aforesaid, and has not been imprisoned under sentence or committed as a delinquent in any state or county within the preceding one year.

(b) At the time of dismissal of a case, nolle prosequi, non-adjudication or when imposing any sentence, period of commitment or probation, or other disposition under section 58 of said chapter 119, the court shall inform all juveniles in writing of their right to seek sealing under this section, and that if the case ended in a dismissal, nolle prosequi, or without an adjudication, the court shall order sealing of the record at the time of the disposition unless the person charged with the offense objects. The court shall also notify said juvenile that the record will be expunged three years after it is sealed unless the person charged with the offense objects.

(c) When records of delinquency and youthful offender appearances and dispositions are sealed by the commissioner in his files, the commissioner shall notify forthwith the clerk and the probation officer of the courts in which the adjudications or dispositions have occurred, or other entries have been made, police department from where the charges originated and the department of youth services of such sealing, and said clerks, probation officers, police department and department of youth services likewise shall seal records of the same proceedings in their files. Sealing of records under this section shall not preclude expungement of police records. The commissioner of probation also shall notify the State Police of such sealing and the State Police shall notify the Federal Bureau of Investigation of the sealing order and request that the FBI note that the record was sealed in its records if it has a record of the case. Such sealed records of a person shall not operate to disqualify a person in any future examination, appointment or application for public service under the government of the commonwealth or of any political subdivision thereof; nor shall such sealed records be admissible in evidence or used in any way in any court proceedings or hearings before any boards of commissioners, except in imposing sentence for subsequent offenses in juvenile or criminal proceedings.

Notwithstanding any other provision to the contrary, the commissioner shall report such sealed juvenile record to inquiring police and court agencies only as ''sealed juvenile record over one year old'' and to other authorized persons who may inquire as ''no record''. The information contained in said sealed juvenile record shall be made available to a judge or probation officer who affirms that such person, whose record has been sealed, has been adjudicated a delinquent or has pleaded guilty or has been found guilty of and is awaiting sentence for a crime committed subsequent to sealing of such record. Said information shall be used only for the purpose of consideration in imposing sentence.

SECTION 6. Said chapter 276, as so, is hereby further 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 the information is no longer maintained in any file or record in an electronic, paper or other physical form.

(b) Notwithstanding section 100B, a person with a record of court appearances and dispositions in any proceeding pursuant to section 52 to 62 of chapter 119, inclusive, shall have the records of such a proceeding expunged upon the filing of a petition to expunge records with the commissioner of probation provided that:

(1) any juvenile court appearance or disposition including court supervision, probation, commitment or parole, the sealed records of misdemeanor offenses for which are to be expunged terminated not less than 3 years prior to said request; other sealed records may be expunged upon the filing of a petition with the court in which the appearance or disposition occurred if there is good cause to expunge the record, which shall include a determination of whether there is a foreseeable disadvantage related to employment, housing or access to other opportunities if the records are not expunged.

(2) that said person had no juvenile adjudication, was not found guilty of any criminal offense within the commonwealth in the 3 years preceding such request, except motor vehicle offenses in which the penalty does not exceed a fine of $550, and was not imprisoned under sentence or committed to the department of youth services within the commonwealth within the preceding 3 years; and

(3) said form includes a statement by the petitioner that during the preceding three years, the petitioner had no juvenile adjudication , was not found guilty of a criminal offense in any other state, United States possession or in a court of federal jurisdiction, except such motor vehicle offenses as aforesaid, and was not imprisoned under sentence or committed as a juvenile in any state or county within the preceding 3 years.

(c) The court shall also allow a petitioner to expunge the record if a case ended in a dismissal, nolle prosequi, or without an adjudication because: (1) the person charged with an offense was misidentified or mistakenly charged with an offense due to an error by law enforcement or court employees, or the person arrested or accused of committing the offense provided a false name; or (2) fraud was perpetrated on the court related to offense.

(d) The form of the petition to expunge shall be furnished by the commissioner of probation.

(e) For any petition to expunge granted under this section, the clerks and probation officers of the courts in which the proceedings occurred or were initiated shall expunge all the records of the proceedings in their files in their paper, electronic, and any other form.

(f) Notwithstanding any other general or special law to the contrary, in the case of an expunged record, the commissioner of probation and the clerk of courts in a district court, superior court, juvenile court and the Boston municipal court, shall report that no record exists in response to inquiries.

An applicant for employment, housing or an occupational license with an expunged record may answer no record to any inquiry regarding prior arrests, adjudications or other dispositions that were contained in an expunged record.

The expunged record 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.

(g) Notwithstanding any general or special law to the contrary, once the commissioner of probation expunges the records within the commissioner’s possession, the commissioner shall notify the department of youth services of the expungement and the department shall expunge such records from the department’s files. Any records subject to an expungement order shall be expunged in their paper, electronic and any other physical form.

(h) The commissioner of probation shall also notify the department of state police of such expungement and the department of state police shall notify the Federal Bureau of Investigation (FBI) of the expungement order and request that the FBI expunge its fingerprint and other records related to the case.

SECTION 7. Notwithstanding any general or special law to the contrary, juvenile records, including, but not limited to, juvenile conviction data, juvenile arrest data, or juvenile sealed record data, shall not be shared with the registry of motor vehicles by the court, probation, district attorney, law enforcement agencies, the department of criminal justice information services, or any other agency or entity that lawfully possesses such records.

SECTION 8. Notwithstanding any general or special law to the contrary, the department of youth services shall assess and report to the General Court the results of the Hampden county dual-status youth pilot program funded through private grants in the years 2012 and 2013. The report shall include feasibility, estimated costs, and resource and technology needs for expanding the program into each county. Cost and resource estimates shall include long-term cost savings of reduced incarceration and recidivism. The department shall file its report with the clerks of the house of representatives and the senate, who shall forward the report to the appropriate legislative committees.

SECTION 9. Section 37P of Chapter 71, as appearing in the 2014 Official Edition, is hereby amended by striking the second paragraph in subsection (b) and inserting in place thereof the following:

In assigning a school resource officer (hereinafter, “SRO”), the chief of police shall assign officers that the chief believes would strive to foster an optimal learning environment and educational community. The chief of police shall give preference to candidates who demonstrate the requisite personality and character to work with children and educators in a school environment and who have received specialized training relating to working with adolescents and children, including cognitive development, de-escalation techniques, and alternatives to arrest and diversion strategies. The appointment shall not be based solely on seniority. The performance of an SRO 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 which shall be placed on file in the offices of the school superintendent and the chief of police.

The memorandum of understanding shall, at minimum, describe the following:

(i) mission statement, goals, and objectives of the SRO program;

(ii) roles and responsibilities of the SROs, the police agency, and the schools;

(iii) process for selecting SROs;

(iv) mechanisms to incorporate SROs into the school environment, including school safety meetings;

(v) information sharing between SROs, school staff, and other partners;

(vi) organizational structure of the SRO program, including supervision of SROs and the lines of communication between the school district and police agency; and

(vii) training for SROs, including but not limited to continuing professional development in child and adolescent development, conflict resolution, and diversion strategies

The memorandum of understanding shall state that SROs shall not serve as formal counselors, school disciplinarians, or enforcers of school regulations, and further that officers shall not use police powers to address traditional school discipline issues, including non-violent disruptive behavior.

The chief of police, in consultation with the school superintendent, shall establish standard operating procedures (hereinafter, “SOP”) to provide guidance to SROs about daily operations, policies, and procedures. At minimum, the SOP, as established by the chief of police, shall describe the following for the school resource officer:

(1) the SRO uniform;

(2) use of police force, arrest, citation, and court referral on school property;

(3) a statement and description of students’ legal rights, including the process for searching and questioning students and when parents and administrators shall be notified and present;

(4) chain of command, including delineating to whom the SRO reports and how school administrators and the SRO work together;

(5) performance evaluation standards, which shall incorporate monitoring compliance with the MOU and use of arrest, citation, and police force in school;

(6) protocols for diverting and referring at-risk students to school- and community-based supports and providers; and

(7) information sharing between the SRO, school staff, and parents or guardians

The executive office of public safety and security, in consultation with the department of elementary and secondary education, shall make available to all communities examples of model memoranda of understanding, statements of procedures, and non-binding advisories on how to establish said documents.

SECTION 10. Section 2JJJJ of Chapter 29, is hereby amended by striking the following words-

“and for the municipal police training committee, under section 116 of chapter 6”

and inserting in place thereof the following words:-

“, municipal police training committee, under section 116 of chapter, and the school resource officer training program”

SECTION 11. Section 12 of chapter 89 is hereby amended by striking out the word “$5” and inserting in place thereof “$6”

SECTION 12. Section 20 of chapter 90 is hereby amended by striking out the word “$25” and inserting in place thereof “$30”

SECTION 13. Section 37P of Chapter 71, as appearing in the 2014 Official Edition, is hereby amended by inserting the following subsections:

(g) The municipal police training committee shall establish a school resource officer training program (hereinafter, program) to train school resource officers (hereinafter, SRO) and chiefs of police, police supervisors, and school administrators who oversee or administer SRO programs. The municipal police training committee shall offer grants to municipalities, regional school districts, county agricultural schools, charter schools, and police agencies to cover the tuition and fees for training. Grants shall fund training offered by the committee or the following organizations:

(1) national association of school resource officers;

(2) the national center for mental health and juvenile justice; and

(3) any other training program that is consistent with subsections (i) and (j) and approved by the municipal police training committee or the department of elementary of secondary education.

(h) The secretary of public safety and security shall direct funding from the public safety training fund for the school resource officer training program.

(i) Program training for officers shall include instruction on:

(1) school building security;

(2) school resource officer roles and responsibilities;

(3) child and adolescent development;

(4) de-escalation and conflict resolution techniques with children and adolescents, positive school discipline, and implicit bias

(5) data collection and analysis;

(6) juvenile law

(7) Information sharing, including federal and state privacy laws; and,

(8) diversion strategies, including restorative justice and community based supports;

(j) Program training for school administrators, chiefs of police, and supervising police officers shall include instruction to promote knowledge, skills, and strategies in:

(1) school building security;

(2) SRO roles and responsibilities;

(3) integrating SROs into the school environment;

(4) developing memoranda of understanding;

(6) program evaluation, data collection and analysis; and,

(7) administering a school resource officer program

(k) The municipal police training committee shall develop a school resource officer certificate for officers who have completed requisite training in topics described in subsection (i). The municipal police training committee shall develop requirements defining continuing education for recertification.

(l) The municipal police training committee shall develop standards defining minimum training standards for school resource officers that are consistent with subsection (i). The municipal police training committee shall publish on the committee website a collection of resources and experts guides relating to SRO programs, training, and administration.

(m) The secretary of public safety and security, in consultation with the department of elementary and secondary education, shall promulgate rules and regulations for subsections (g) through (l), inclusive.

SECTION 14. Section 32 of chapter 12 of the General Laws is hereby amended by striking out subsection (b) and inserting in place thereof the following subsection:-

(b) A district attorney’s community based juvenile justice program shall work with program participants to provide support services to juvenile offenders and at-risk youth and their families to reduce the risk of offending or re-offending. The office of the district attorney shall work with the schools and community representatives on development of violence prevention and intervention programs which may include implementation of restorative justice programs.

SECTION 15. Section 32 of Chapter 12 is hereby further amended by inserting after "system." in subsection (c) the following sentence:-

The office shall notify the legal guardian(s) of minors affected by this section.

SECTION 16. Chapter 12 of the General Laws is hereby amended by inserting after section 32 the following section:-

Section 32A. (a) The district attorneys shall provide for pre-arraignment trauma and mental health screening for all detained minors.

Name:	District/Address:	Date Added:
Carolyn C. Dykema	8th Middlesex	1/19/2017
Danielle W. Gregoire	4th Middlesex	4/4/2017
Kay Khan	11th Middlesex	4/7/2017
Jonathan Hecht	29th Middlesex
Kimberly N. Ferguson	1st Worcester