Bill S.760

SENATE DOCKET, NO. 1642 FILED ON: 1/20/2017

SENATE . . . . . . . . . . . . . . No. 760

By Mr. Boncore, a petition (accompanied by bill, Senate, No. 760) of Joseph A. Boncore and Jack Lewis for legislation relative to diversion programs. The Judiciary.

The Commonwealth of Massachusetts

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

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An Act relative to diversion programs.

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 276A of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by striking out sections 1 to 8, inclusive, and inserting in place thereof the following new sections:-

Section 1. The following words, as used in this chapter, unless the context otherwise requires, shall have the following meanings:—

“Assessment”, a thorough and complete measurement of the needs of a person 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 person’s willingness to participate in a diversion program.

''Commissioner'', the commissioner of probation.

''Director'', the person in charge of the operation of a program of community supervision and services.

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

“Program”, any program of community supervision and services certified or approved by the commissioner under the provisions of section x, 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 2. The court shall have jurisdiction to divert from further court processing any person who, as the result of a complaint or indictment, has received a recommendation from the Department of Probation or a program that diversion to the community or a program is appropriate.

Section 3. The probation officer shall, after the appointment of counsel and upon the request of counsel, and prior to arraignment, complete an assessment of each person charged with an offense for the purpose of enabling the judge to consider the suitability of such person 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 established pursuant to section 98A of chapter 276, implement a validated tool to conduct such assessment that is research-based and aligned with best practices in the field.

If the person or the probation officer requests, the court may offer a continuance of up to fourteen-days to allow for additional time for the assessment by the department or, where the judge determines it is appropriate, the personnel of a program to determine if the person would benefit from such program. If such a continuance is granted, the judge shall direct the person 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 person shall not be arraigned and no entry will be made into the CORI systems until such time as a justice of the court so orders for the purposes of resuming the ordinary processing of a criminal proceeding.

Section 4. After the completion of the assessment, or upon the expiration of a continuance granted pursuant to section 3, the probation officer or, where applicable, the director of a program to which the person has been referred, shall submit to the court a recommendation as to whether such person 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 person. 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 person for diversion. There shall be a rebuttable presumption that a person 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 person who is found eligible for diversion 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 person 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 trial court. Such consent shall be with the advice of the person’s counsel. Any request for assessment, or a decision by the person not to enter a program, or a determination by probation or by a program that the person would not benefit from diversion, or any statement made by the person during the course of assessment, shall not be admissible against the person in any proceedings; nor shall any consent by the person 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 person, 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 person 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 person or any codefendant.

If a person has been found eligible for diversion under this section, the person shall not be arraigned and no entry will be made into the CORI systems until such time as a justice so orders for the purposes of resuming the ordinary processing of a criminal proceeding. If a person 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 5. A district attorney may, in his discretion, divert any person to the community or a program either before or after the assessment procedure set forth in section c, 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 person’s status in and completion of such program.

If the person 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 person before the court. When the person 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 person 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 6. Upon the expiration of the initial ninety-day stay of proceedings the probation officer shall indicate to the court the successful completion of diversion by the person or recommending an extension of the stay of proceedings for not more than an additional ninety days, so that the person may complete the diversion program successfully.

If the probation officer indicates the successful completion of diversion by a person, the judge shall dismiss the original complaint or indictment pending against the person. 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 person’s attorney shall be notified prior to the termination of the person from diversion and the judge may grant an extension to the stay of proceedings if the person reasonably satisfies the court that he 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 7. 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 aforementioned advisory board, 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 persons 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 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, superior and district trial courts, and to all justices in the court system evaluating the performance of all programs.

SECTION 2. 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.

Name:	District/Address:
Joseph A. Boncore	First Suffolk and Middlesex
Jack Lewis	7th Middlesex	2/3/2017