Bill H.1665

HOUSE DOCKET, NO. 2751 FILED ON: 2/18/2021

HOUSE . . . . . . . . . . . . . . . No. 1665

By Mr. Holmes of Boston, a petition (accompanied by bill, House, No. 1665) of Russell E. Holmes relative to the juvenile offender law. The Judiciary.

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 1439 OF 2019-2020.]

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Second General Court
(2021-2022)

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An Act reforming juvenile offender law.

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. Section 52 of chapter 119 of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by striking out, in lines 5 and 15, the figure “18” and inserting in place thereof, in each instance, the following figure:- 19.

SECTION 2. Said chapter 119, as so appearing, is hereby further amended by striking out section 72B and inserting in place thereof the following section:–

Section 72B. If a person is found guilty of murder in the first degree committed on or after his sixteenth birthday and before his nineteenth birthday under the provisions of section 1 of chapter 265, the superior court shall commit the person to such punishment as is provided by law for the offense. Said person shall be afforded a meaningful opportunity to obtain release on parole based on demonstrated maturity and rehabilitation and in accordance with the provisions of law governing the granting of parole permits by the parole board.

If a person is found guilty of murder in the second degree committed on or after his sixteenth birthday and before his nineteenth birthday under the provisions of section 1 of chapter 265, the superior court shall commit the person to such punishment as is provided by law. Said person shall be eligible for parole under section 133A of chapter 127 when such person has served 15 years of said confinement. Said person shall be afforded a meaningful opportunity to obtain release on parole based on demonstrated maturity and rehabilitation and in accordance with the provisions of law governing the granting of parole permits by the parole board.

If a person is alleged to have committed murder in the first or second degree under the provisions of section 1 of chapter 265 after having attained the age of 14 but before attaining the age of 16, the superior court shall forthwith transfer the proceeding to the juvenile court where the minor shall be subject to the provisions of section 58 of chapter 119.

The superior court shall not suspend the commitment of a person found guilty of murder in the first or second degree, nor shall the provisions of section 129C or 129D of chapter 127 apply to such commitment. In all cases where a person is alleged to have violated section 1 of chapter 265, the person shall have the right to an indictment proceeding under section 4 of chapter 263.

A person who is found guilty of murder and is sentenced to a state prison but who has not yet reached his eighteenth birthday shall be held in a youthful offender unit separate from the general population of adult prisoners; provided, however, that such person shall be classified at a facility other than the reception and diagnostic center at the Massachusetts Correctional Institution, Concord, and shall not be held at the Massachusetts Correctional Institution, Cedar Junction, prior to his eighteenth birthday.

The department of correction shall not limit access to programming and treatment including, but not limited to, education, substance abuse, anger management and vocational training for youthful offenders, as defined in section 52, solely because of their crimes or the duration of their incarcerations. If the youthful offender qualifies for placement in a minimum security correctional facility based on objective measures determined by the department, the placement shall not be categorically barred based on a life sentence. The placement shall be barred for a qualifying youthful offender only if the prisoner meets 1 or more of the following objective criteria: (i) more than 5 years to his or her earliest release date; (ii) outstanding legal issues; (iii) possible civil commitment; (iv) pending immigration detainer or deportation; (v) pending disciplinary report; (vi) investigative hold; or (vii) documented on-going STG involvement.

If a defendant is not found guilty of murder in the first or second degree, but is found guilty of a lesser included offense or a criminal offense properly joined under Massachusetts Rules of Criminal Procedure 9(a)(1), then the superior court shall make its disposition in accordance with section 58.

Any person who has attained the age of 14 but has not yet attained the age of 16 who is alleged to have committed murder, as described in section 2 of chapter 265, shall be prosecuted as a youthful offender pursuant to section 58 and subject to the penalties outlined therein.

SECTION 3. Subsection (f) of section 15 of chapter 123 of the General Laws is hereby repealed.

SECTION 4. Said chapter 123, as appearing in the 2018 Official Edition, is hereby further amended by inserting after section 15 the following section:-

Section 15A. (a) The provisions of this section shall apply to any juvenile delinquency, youthful offender, or murder proceeding where the juvenile’s adjudicative competence is raised as an issue by any party or sua sponte by the court at any time in the proceeding against the juvenile. Once an issue of the juvenile’s adjudicative competence is raised, the proceeding shall be stayed until the court makes a determination regarding the competence of the juvenile pursuant to the following provisions.

(b) As used in this section, the following words and phrases shall have the following meanings:

“Juvenile”, any person who is under the age of 19 at the time of arraignment on the charge before the court.

“Competence”, a legally competent youth means the person has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him.

“Rebuttable presumption”, a presumption that all children under the age of 13 are not legally competent. The commonwealth may overcome the presumption by proving by a preponderance of the evidence that the child is competent.

“Causes of incompetence”, may include: cognitive disability such as mental retardation, learning disability or other neurological disease or defect; psychiatric disease or disability; physical disease or disability; developmental disability such as autism, pervasive developmental disorder or other similar condition; developmental immaturity or young age; any other relevant condition or circumstance contributing to any current impairment in the juvenile’s competence to proceed.

“Burden of proof”, whenever the issue of competence is raised, the commonwealth shall bear the burden to prove by a preponderance of the evidence that the juvenile is competent.

“Qualified examiner”, a psychiatrist or psychologist who is qualified by training and experience in the clinical and forensic evaluation of juveniles.

(c) Whenever a court of competent jurisdiction finds that a reasonable basis exists for doubt about a youth’s competence, the court shall order an evaluation of the youth by 1 or more qualified examiners. The court shall direct that the examiner be provided any information or materials likely to be relevant to the evaluation and determination of the issue of competence including, but not limited to, charging documents, arrest of incident reports, juvenile criminal history information, prior mental health evaluations, special education evaluations and individual education plans.

The evaluation shall be performed in the least restrictive environment and any juvenile otherwise entitled to release or bail shall not be held in a place of detention solely for the purposes of conducting the evaluation.

Upon an order for an evaluation, all proceedings shall be stayed and the period of delay until the youth is determined legally competent shall constitute an exclusion from any speedy trial provision.

Upon completion of the evaluation, the examiner shall promptly and in no event exceeding 14 days after receipt of all required information, submit a report in writing to the court and the attorneys of record concerning the youth’s competence. If the court appointed evaluator reports that the youth lacks the capacities associated with competence, the report shall address, with specificity, the following: (i) the youth’s capacity to understand the proceedings against him or her; (ii) his or her ability to assist the attorney in the preparation of a defense; (iii) the causes of incompetence; (iv) the likelihood that he or she shall attain competency in the foreseeable future; and (v) a description of suggested services, supports or other interventions to assist the youth in the attainment or restoration of competency. No statement or disclosure of the youth concerning the alleged offense made during a evaluation shall be included in the report or used against the youth at trial, adjudication or disposition hearings as evidence or as a basis for such evidence.

Upon receipt of the report, the court shall promptly schedule a hearing on the issue of competence. If the attorneys of record stipulate to the findings of the qualified examiner and jointly waive the hearing, and if the court concurs, a finding as to the youth’s competence to stand trial shall be entered into the record. If either party or the court wishes to proceed to a hearing, the court shall promptly conduct an evidentiary hearing on the matter no later than fourteen days after the filing of the report. The commonwealth shall bear the burden of proving by a preponderance of the evidence that the youth is competent. Upon completion of the hearing, the court shall make a determination on the issue of competence. If the court finds the youth incompetent, the court shall make findings as to whether there is substantial probability that the youth will attain competence in the foreseeable future and the findings shall be entered into the record.

If the court is satisfied that the youth is competent to stand trial, the case shall continue according to the usual course of proceedings.

If the court finds the youth incompetent, the case shall be stayed until such time as the juvenile becomes competent to stand trial, unless the case is dismissed.

(d) If the court determines that the youth is incompetent, but there is a substantial probability that he or she will attain or be restored to competence in the foreseeable future, the court shall stay the proceedings and order the youth to receive services designed to achieve competence based on the recommendations made by the qualified examiner in the competency evaluation. The court shall order the services be provided in the least restrictive setting and the court shall review the youth’s progress toward competence every 180 days. No statement or disclosure of the youth concerning the alleged offense made during the receipt of services shall be included in any report or used against the youth at trial, adjudication or disposition hearings as evidence or as a basis for such evidence.

(e) If the youth was charged with a misdemeanor, and still has not achieved competence at the end of 180 days, the court shall dismiss the case with prejudice and, if appropriate, be deemed to have accepted an application pursuant to section 39E of chapter 119 or initiate civil commitment proceedings pursuant to chapter 123.

(f) If the youth was charged with a felony, and still has not achieved competence at the end of 2 years following the finding of incompetence, and there is no substantial evidence that the youth will attain competence within a year, the court shall dismiss the case with prejudice and shall initiate civil commitment proceedings if appropriate.

(g) If the youth is charged with murder, the court may retain jurisdiction for up to 5 years or until the juvenile reaches the age of 21. The court may order update examinations of the youth by a qualified examiner every 6 months during the period of oversight. If at the end of this time period, the youth has not attained competence, the court shall dismiss the case with prejudice and shall initiate civil commitment proceedings if appropriate.

(h) If the court determines that the youth is incompetent and will not attain or be restored to competence in the foreseeable future, the court shall: (i) in a case where the most serious charge is a misdemeanor dismiss the case with prejudice and, if appropriate, be deemed to have accepted an application pursuant to section 39E of chapter 119 or initiate civil commitment proceedings pursuant to chapter 123; (ii) where the most serious charge is a felony, dismiss the case with prejudice unless the court makes specific findings of good cause to retain jurisdiction. However, in no case shall the court’s jurisdiction extend beyond the juvenile’s twenty-first birthday. If appropriate, the court shall initiate civil commitment proceedings pursuant to chapter 123.

SECTION 5. Chapter 127 of the General Laws is hereby amended by striking out section 130 and inserting in place thereof the following section:-

Section 130. A parole permit shall be granted at a prisoner’s first parole eligibility and at any subsequent review hearing, unless the board determines by clear and convincing evidence that, if the prisoner is released with appropriate conditions and community supervision, the prisoner will not live and remain at liberty without violating the law. If the prisoner was convicted of murder in the first or second degree for a crime committed while under the age of 19, the board shall give substantial weight to the prisoner’s diminished culpability at the time of the crime and his subsequent demonstrated maturity and rehabilitation.

The parole board shall make this determination based on the findings of validated risk assessment tools, the prisoner’s participation in available work opportunities, educational opportunities and treatment programs, and the prisoner’s demonstrated good behavior. The board shall consider whether risk reduction programs, made available through collaboration with criminal justice agencies, and other aspects of the prisoner’s parole plan would minimize the probability of the prisoner’s offending once released.

The board shall issue its written decision no later than 90 days from the date of the hearing. Any record of decision denying parole shall specify in detail, and not in conclusory terms, the reasons why denial was appropriate in light of the findings of the validated risk assessment tool, and shall identify the particular tasks the applicant must complete prior to the next parole hearing in order to gain parole. Any minority or dissenting opinions shall be included in the record of decision. If such permit is not granted, a subsequent review shall occur no later than 5 years from the date of the hearing if the prisoner was over age 19 at the time of the crime, and no later than 3 years from the date of the hearing if the prisoner was under age 18 at the time of the crime.

Name:	District/Address:	Date Added:
Russell E. Holmes	6th Suffolk	2/18/2021