HOUSE DOCKET, NO. 3389        FILED ON: 1/20/2023

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 163

The Commonwealth of Massachusetts

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PRESENTED BY:

Michael J. Finn

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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 establishing a pilot diversion program for individuals with developmental and intellectual disabilities.

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PETITION OF:

HOUSE DOCKET, NO. 3389        FILED ON: 1/20/2023

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 163

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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An Act establishing a pilot diversion program for individuals with developmental and intellectual disabilities.

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. Part IV of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by inserting after Chapter 276B the following:

Chapter 276C. Diversion Program for Individuals with Developmental and Intellectual Disabilities.

Section 1. The following words, as used in this chapter, shall have the following meanings:

“Court”, the Boston municipal court.

“Department”, the Department of Developmental Services.

“Development disability”, a group of conditions due to an impairment in physical, learning, language, or behavior areas. These conditions begin during the developmental period, may impact day-to-day functioning, and usually last throughout a person’s lifetime, including Fetal Alcohol Spectrum Disorders.

“Individual”, an adult age 18 years or older with an intellectual disability or developmental disability who is diverted from prosecution under the provisions of this chapter.

''Intellectual disability'', a term used when there are limits to a person’s ability to learn at an expected level and function in daily life.

''Psychiatrist'', a physician licensed pursuant to section two of chapter one hundred and twelve of the general laws who specializes in the practice of psychiatry.

Section 2. There shall be established a Pilot Program to address the unique needs of persons with intellectual and developmental disabilities in the criminal justice system. The Boston municipal courts shall have jurisdiction to divert to the department any person with a developmental disability or an intellectual disability who is charged with an offense or offenses against the commonwealth for which a term of imprisonment may be imposed, over which Boston municipal courts may exercise final jurisdiction, and meets the requirement set forth in Section 5(C) of this chapter. This pilot program shall last for 5 years, from the effective date of this legislation. Upon the effective date of this chapter, the Committee for Public Counsel Services shall be notified of the pilot program by the Massachusetts Probation Service and by the department.

Section 3. The Massachusetts Probation Service and the department shall oversee and develop the pilot program. Annually, both agencies shall jointly provide a report analyzing the number of persons who have been diverted through the pilot program, and the costs of the pilot program, together with recommendations for the pilot program’s future and any other relevant data. This data shall include the collection of demographic data, including but not limited to age, gender, race, and ethnicity. This data shall include direct interviews with program participants on the effectiveness of the diversion and quantitative data about the success of individuals diverted through the program. This report must be filed with the Speaker of the House, the Senate President, the Chairs of the Joint Committee on Children, Families and Persons with Disabilities, and the Chairs of the Joint Committee on the Judiciary. This report shall also be made publicly available on the department’s website.

The Massachusetts Probation Service in partnership with the department shall collaborate with all appropriate state agencies, departments, and secretariats of the commonwealth as necessary to develop the pilot program and provide services to individuals who are diverted through the program.

Section 4. No individual eligible under this statute shall be charged a fee for participation in the pilot program, including fees related to treatment, assessments, or other aspects of their care plan and services.

Section 5. Boston municipal court may approve pretrial diversion at any time after the filing of a criminal complaint, including prior to arraignment. An individual shall qualify for the pilot program and receive services and supports in lieu of prosecution and incarceration if all the following criteria are met: 

(a) Diversion is requested by the individual, the individual’s attorney, or the prosecutor, or the court on its own motion, determines that the individual may benefit from participation in the pilot program;

(b) The individual has medical records diagnosing the individual with a developmental or intellectual disability;

(c) The alleged or charged offense is not a violent or dangerous crime and the individual does not have criminal charges pending for a violent or dangerous crime;

(d) The court, in reviewing the individual’s arrest or application for a complaint, and medical or psychological records and any other relevant documents, is satisfied that the individual’s developmental or intellectual disability was a factor in the commission of the alleged or charged offense;

(e) The individual consents to diversion and services from the department; and

(f) The court, considering the medical records of the individual and any evidence presented by the individual’s attorney and the prosecutor, is satisfied that if ordered to the pilot program the individual would not pose an unreasonable risk of danger to any other person or the community.

Section 6. When an individual is diverted through this program, an interdisciplinary team, including the individual and his or her guardian if any, shall be convened by the department and shall draft an individual care plan (ICP) including supports and services for the participant within 14 days. Once the individual consents to the individual care plan, the department shall cause them to be enrolled in proposed services and notify the court in writing of this development. 

Section 7. Once the court receives notification that the individual has been registered for services with the department under their new ICP, the court shall dismiss the participant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion. If the court dismisses the charges, the court may order the record of the arrest sealed.