SENATE DOCKET, NO. 1797        FILED ON: 1/20/2017

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 847

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. 1797        FILED ON: 1/20/2017

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 847

The Commonwealth of Massachusetts

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

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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. It is the policy of this Commonwealth that principles of restorative justice are included as an option for criminal and juvenile justice practitioners and parties to certain harms. It is the goal that law enforcement officials employ restorative justice approaches wherever applicable, as it may mend and strengthen the social fabric, increase the safety, security and wellbeing of communities, and reduce recidivism and the risk of more serious crimes that would require a more intensive and costly response from the legal system, such as prosecution and incarceration. Local community members should design restorative justice approaches, considering the elements of truth-telling and confidentiality; impacted parties are encouraged to participate when they so choose. Nothing in this chapter shall be construed to limit restorative justice practices or approaches that are, or may be utilized, outside the scope of this bill.

SECTION 2. The General Laws are hereby amended by inserting after chapter 276A the following chapter:-

CHAPTER 276B.

RESTORATIVE JUSTICE.

Section 1. Definitions

As used in this chapter, the following terms shall have the following meanings unless the context clearly requires otherwise:

“Restorative justice”, a voluntary process whereby the offenders, victims, and members of the community collectively identify and address harms, needs and obligations resulting from an offense, in order to understand the impact of that offense. Restorative justice requires an offender’s acceptance of responsibility for their actions and supports the offender as they make repair to the victim or community in which the harm occurred.

“Community-based restorative justice program”, a program established on restorative justice principles and approved by the restorative justice advisory committee that engages parties to a crime or members of the community in order to develop a plan of repair that addresses the needs of the parties and the community. Programs may include the parties to a case, their supporters, and community members, or one-on-one dialogues between a victim and offender.

Section 2. Participation

Participation in a community-based restorative justice program shall be voluntary and shall be available to both a juvenile and adult defendant. A juvenile or adult defendant may be diverted to a community-based restorative justice program at any stage of a case beginning immediately post arraignment and with the consent of the District Attorney and the victim. Restorative justice may be contemplated as a means of disposition, with judicial approval. If a juvenile or adult defendant successfully completes the restorative justice program, the charge will be dismissed. If a juvenile or adult defendant does not successfully complete the program or is found to be in violation of program requirements, the case will be returned to the court in which it was arraigned in order to commence with proceedings.

Section 3. Ineligible Offenses

A person shall not be eligible to participate in a community-based restorative justice program if that person is charged with: (i) a sexual offense as defined by section 1 of chapter 123A; (ii) any offense against a family or household member as defined by section 13M of chapter 265; or (iii) any offense resulting in substantial impairment of the physical condition including any burn, subdural hematoma, injury to any internal organ, any injury which occurs as the result of repeated harm to any bodily function or organ including human skin or any physical condition which substantially imperils a person’s health or welfare. A person charged with an offense that resulted in the fracture of a bone is not automatically ineligible, but may be considered ineligible in light of the facts and circumstances of the case.

Section 4. Confidentiality

Participation in a community-based restorative justice program shall not be used as evidence or as an admission of guilt, delinquency, or civil liability in current or subsequent legal proceedings. A statement made by a juvenile or adult defendant during the course of an assignment to a community-based restorative justice program shall be confidential and shall not be subject to disclosure in any judicial or administrative proceeding; provided, however, that nothing in this section shall preclude any evidence obtained through an independent source or that would have been inevitably discovered by lawful means from being admitted at such proceedings.

SECTION 3. Chapter 119 of the General Laws is hereby amended by inserting after section 85 the following section:-

Section 86. Restorative justice

A child against whom a complaint is brought under this chapter may participate in a community-based restorative justice program pursuant to the requirements of chapter 276B.

SECTION 4. There shall be established a restorative justice advisory committee to review community-based restorative justice programs. The advisory committee shall consist of sixteen members: the co-chairs of the joint committee on the judiciary, who shall serve as co-chairs of the advisory committee; the Secretary of Public Safety and Security or a designee; the Secretary of Health and Human Services or a designee; the President of the Massachusetts District Attorneys Association or a designee; the Chair of the Committee for Public Counsel Services or a designee; the Commissioner of Probation or a designee; the President of the Massachusetts Chiefs of Police Association or a designee; the Executive Director of the Massachusetts Office for Victim Assistance or a designee; and 7 persons to be appointed by the governor, 1 of whom shall be a retired Massachusetts Trial Court judge and 6 of whom shall be representatives of community-based restorative justice programs. Each member of the advisory committee shall serve a 6-year term and members appointed through an official title shall be members for as long as they hold that title.

The committee shall, in its discretion, approve, monitor and assist all community-based restorative justice programs to which a juvenile or adult defendant may be diverted pursuant to this chapter. The committee shall issue approval of new and existing programs for a term of 2 years, and may renew approval for additional 2-year terms, subject to revocation for cause. The committee shall establish criteria to determine approval of a program. The committee may issue approval to a person, partnership, corporation, society, association or other agency or entity.

The advisory committee shall track the use of community-based restorative justice programs through a partnership with an educational institution and shall 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; 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 annually submit a report with findings and recommendations to the governor and the clerks of the senate and house of representatives no later than December 31.

Appointments to the advisory committee shall be made not later than October 1, 2018 and the first meeting of the advisory committee shall be held not later than December 1, 2018.