HOUSE DOCKET, NO. 1775        FILED ON: 1/19/2017

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 755

The Commonwealth of Massachusetts

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PRESENTED BY:

Claire D. Cronin

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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 to promote child well-being, community supervision and efficient use of state resources.

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PETITION OF:

HOUSE DOCKET, NO. 1775        FILED ON: 1/19/2017

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 755

The Commonwealth of Massachusetts

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

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An Act to promote child well-being, community supervision and efficient use of state resources.

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. Chapter 119 of the General Laws, as so appearing, is hereby amended by inserting after section 85 the following new sections:-

Section 86. The following words, as used in the following sections, except as otherwise provided, shall have the following meanings:—

“Assessment”, a thorough and complete measurement of the needs of a child in, but not limited to, the following areas: education, vocational training, job readiness, housing, behavioral and physical health, family and social services, and an analysis of a child’s willingness to participate in a diversion program.

“Official designee”, a representative of a community program who has been approved by the presiding justice of a juvenile court to work in conjunction with that court’s probation office to screen children who may be eligible for diversion.

“Program”, any program of community supervision and services certified or approved by the commissioner of probation under the provisions of section ninety-three, including, but not limited to, medical, educational, vocational, social and psychological services, corrective and preventive guidance, training, performance of community service work, counseling, and other rehabilitative services designed to protect the public and benefit the individual.

Section 87.  The juvenile court shall have jurisdiction to divert from further court processing any child who is subject to the jurisdiction of the juvenile court as the result of a complaint or indictment brought under Section 54 of this Chapter, and who has received a recommendation from the Department of Probation or a Program, as described in Section 89, that diversion to the community or a Program is appropriate

Section 88. The probation officer of a juvenile court shall, after the appointment of counsel and upon the request of counsel, and prior to arraignment, complete an Assessment of each child complained of as a delinquent child or youthful offender for the purpose of enabling the judge to consider the suitability of the child for diversion from any further court processing, for diversion to the community or to a Program prior to arraignment.  The Department of Probation shall, in consultation with the advisory board at Section 94, implement a validated tool to conduct such Assessment that is research-based and aligned with best practices in the field.

If the child or the probation officer requests it, the court may offer a continuance of up to fourteen-days to allow for additional time for the Assessment by the Department of Probation or, where the judge determines it is appropriate, the personnel of a Program to determine if the child would benefit from such program. If such a continuance is granted, the judge shall direct the child to the probation officer for further assessment or, where applicable, to a Program for such assessment, and shall inform said probation officer or Program of such action.

If a case is continued under this section, the child shall not be arraigned and no entry will be made into the CORI systems until such time as a Justice of the Juvenile Court so orders for the purposes of resuming the ordinary processing of a delinquency or youthful offender proceeding.

Section 89. After the completion of the Assessment, or upon the expiration of a continuance granted pursuant to section 88, the probation officer or, where applicable, the director of a Program to which the child has been referred, shall submit to the court a recommendation as to whether the child would benefit from diversion to the community or a Program.

The judge, upon receipt of the recommendation, shall provide an opportunity for a recommendation by the prosecution regarding the diversion of the child. After receiving the report and having provided an opportunity for the prosecution to make its recommendation, the judge shall make a final determination as to the eligibility of the child for diversion. There shall be a rebuttable presumption that a child who is charged with a misdemeanor for which the punishment is a fine, imprisonment in a jail or house of correction for not more than six months, or both such fine and imprisonment, and who does not have any outstanding warrants, continuances, appeals or juvenile court cases pending, shall be found eligible for diversion.

The proceedings of a child who is found eligible for diversion under section 87 shall be stayed for a period of ninety days, unless the judge in his discretion considers that the interest of justice would best be served by a lesser period of time.

In no event shall a stay of proceedings be granted pursuant to this section unless the child consents in writing to the terms and conditions of the stay of proceedings and knowingly executes a waiver of his right to a speedy trial on a form approved by the chief justice of the juvenile courts. Such consent shall be with the advice of the child’s counsel. Any request for assessment, or a decision by the child not to enter a program, or a determination by probation or by a program that the child would not benefit from diversion, or any statement made by the child during the course of assessment, shall not be admissible against the child in any proceedings; nor shall any consent by the child to the stay of proceedings or any act done or statement made in fulfillment of the terms and conditions of such stay of proceedings be admissible as an admission, implied or otherwise, against the child, should the stay of proceedings be terminated and proceedings resumed on the original complaint or indictment. No statement or other disclosure or records thereof made by a child during the course of assessment or during the stay of proceedings shall be disclosed at any time to a prosecutor or other law enforcement officer in connection with the investigation, or prosecution of any charge or charges against said child or any co-defendant.

If a child has been found eligible for diversion under this section, the child shall not be arraigned and no entry will be made into the CORI systems until such time as a Justice of the Juvenile Court so orders for the purposes of resuming the ordinary processing of a delinquency or youthful offender proceeding.  If a child is found eligible under this section, this eligibility is not considered an issuance of a criminal complaint for the purposes of Section 37H ½ of Chapter 70.

Section 90.  A district attorney may, in his discretion, divert any child to the community or a Program either before or after the assessment procedure set forth in section 88, with or without the permission of the court.  A district attorney who diverts a case pursuant to this section may request a report from a Program regarding the child’s status in and completion of such Program. 

If the child during the stay of proceedings is charged with a subsequent offense, a judge in the court that entered the stay of proceedings may issue such process as is necessary to bring the child before the court. When the child is brought before the court, the judge shall afford him an opportunity to be heard. If the judge finds probable cause to believe that the child has committed a subsequent offense, the judge may order, when appropriate, that the stay of proceedings be terminated and that the commonwealth be permitted to proceed on the original complaint or indictment as provided by law.

Section 92. Upon the expiration of the initial ninety-day stay of proceedings the probation officer of the juvenile court shall indicate to the court the successful completion of diversion by the child or recommending an extension of the stay of proceedings for not more than an additional ninety days, so that the child may complete the diversion program successfully.

If the probation officer  indicates the successful completion of diversion by a child, the judge shall dismiss the original complaint or indictment pending against the child. If the report recommends an extension of the stay of proceedings, the judge may, on the basis of the report and any other relevant evidence, take such action as he deems appropriate, including the dismissal of the complaint or indictment, the granting of an extension of the stay of proceedings or the resumption of proceedings.

If the conditions of diversion have not been met, the juvenile’s attorney shall be notified prior to the termination of the child from diversion and the judge may grant an extension to the stay of proceedings if the juvenile reasonably satisfies the court that he or she does not have the means to comply with the conditions of diversion.             

If the judge dismisses a complaint or indictment under this section, the court shall enter an order directing expungement of any records of the complaint or indictment and related proceedings maintained by the clerk, the court, the department of criminal justice information services, the court activity record index and the probation department that directly pertain to the complaint or indictment.

Section 93. The office of the Commissioner of Probation shall, in its discretion, certify, monitor and aid all programs to which children may be diverted pursuant to this chapter. The office of the commissioner of Probation shall, in its discretion, (a) issue for a term of two years, and may renew for like terms, a certification, subject to revocation for cause, to any person, partnership, corporation, society, association or other agency or entity of any kind, other than a licensed general hospital or a department, agency or institution of the federal government, the commonwealth or any political subdivision thereof, deemed to be responsible and suitable to establish and maintain such a program and to meet applicable certification standards and requirements; and in the case of a department, agency or institution of the commonwealth or any political subdivision thereof, grant approval to establish and maintain a program for a term of two years, and may renew such approval for like terms, subject to revocation for cause;  (b) promulgate, in consultation with the advisory board established in section 94, rules and regulations establishing certification and approval standards and requirements; (c) establish limits for caseloads and enrollment so that programs are able to provide high quality intensive individualized service to those children participating in such programs; (d) procure, where appropriate, by contract, the personnel, facilities, services, and materials necessary to carry out the purposes of this act, subject to all applicable laws and regulations; (e) prepare reports for said advisory board showing the progress of all programs in fulfilling the purposes set forth; (f) notify the appropriate presiding justice of the individual court that adequate facilities and personnel are available to fulfill an appropriate array of programs and services for that court; (g) provide technical assistance to such program as may be certified hereunder; (h) provide for the audit of any funds expended by the office for the support of programs certified hereunder; (i) promote the cooperation of all agencies which provide education, training, counseling, legal, employment, or other services to assure that eligible individuals diverted to programs may benefit to the maximum extent practicable; (j) prepare and submit an annual report to the advisory board to the office of the Commissioner of Probation, the chief justices of the supreme judicial, appeals, and juvenile courts and to all justices in the juvenile court system evaluating the performance of all programs.

Section 94.

The fourth paragraph of section 98A of chapter 276 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by adding at the end thereof the following:-

The advisory board shall assist the commissioner in coordinating the efforts of all public agencies and private organizations and individuals within the commonwealth concerned with the providing of services to defendants by said programs.