Judiciary Amendments

SENATE . . . . . . . . . . . . . . No. 2900

The Commonwealth of Massachusetts

_______________

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

_______________

by inserting at the following sections:-

"SECTION XX. Notwithstanding any general or special law to the contrary, there shall be established a special commission to study the Commonwealth’s response to and resources for victims of domestic violence and sexual assault.

(a) The commission shall be comprised of the following members: the commissioner of probation; the director of the juvenile court probation department; the director of the probate and family court probation department; the director of the office of community corrections; the director of the electronic monitoring center; the executive director of the governor’s council to address sexual assault and domestic violence; an assistant attorney general to be appointed by the attorney general; the secretary of the executive office of public safety and security; the director of the Massachusetts office for victim assistance; two SAFEPLAN advocates to be appointed by the director of the Massachusetts office for victim assistance; the director of Jane Doe Inc. of Boston; the director of New Hope, Inc. of Attleboro; the director of the South Shore Resource and Advocacy Center; the director of the Massachusetts intimate partner abuse education program; a law enforcement officer with experience in domestic violence and sexual assault cases to be appointed by the governor; the head of the domestic violence unit within the Boston police department; and two survivors of domestic abuse to be appointed by the governor. The board shall be chaired by the director of the Massachusetts office for victim assistance. Each such member may appoint a designee to serve in the member's place.

(b) The commission shall analyze current resource offerings to victims of domestic violence and sexual assault; study the efficiency of state departments in maintaining victim safety, including but not limited to probation departments; consider ways to provide robust opportunities for victim and community engagement, ongoing analysis, and oversight of probation department policies, practices, and procedures; analyze income-based privileges and disadvantages for victims in participating with probation proceedings; consider ways to ensure that victims are part of the probation process while holding offenders accountable and simultaneously reducing the rates of recidivism; analyze probation violation reporting advisories and other written resources and whether they are helpful, understandable, and effective for victims; and determine the feasibility of a complaint communication tool for victims to report probation officer misconduct.

(c) The first meeting of the commission shall take place no later than December 1, 2021 and shall be organized by the director of the Massachusetts office for victim assistance.

(d) The commission shall produce a report of their findings and analysis along with any recommendations for legislation to the Clerks of the House and Senate and the chairs of the Joint Committee on the Judiciary no later than December 1, 2023.

SECTION XX. Chapter 276 of the general laws, as so appearing, is hereby amended by inserting the following new section:-

“Section 99C. Domestic violence and sexual assault probation unit

There shall be established in the superior court department, the Boston municipal court department, and divisions of the probate and family and district court departments a domestic violence and sexual assault probation unit within the court’s probation department. For the purposes of this section, the word “victim” shall mean a complainant that has filed a complaint under chapter 209A. For the purposes of this section, the word “unit” shall mean the domestic violence and sexual assault probation unit. The unit shall consist of:

(a) a domestic violence and sexual assault victim advocate who shall be stationed in the probation department and employed by an external non-profit organization whose mission includes but is not limited to advocating for victims of domestic violence and sexual assault by way of prevention and intervention services, receiving and handling victim complaints against probation officers, raising public awareness, and promoting safety and justice. The victim advocate shall act as the primary liaison between a victim that has filed a complaint and probation officers assigned to the victim’s open case. The victim advocate shall notify victims of any scheduled proceedings pursuant to the victim’s complaint, their rights in the probation process as established in the Victims Bill of Rights in Section 3 of Chapter 258B of the General Laws, as amended by this act, as well as the contact information of the probation officer assigned to the respondent of the victim’s complaint. The victim advocate shall interact with certified batterer’s treatment programs if the respondent is so enrolled to obtain current information to provide associated probation officers. The victim advocate shall compile and maintain pertinent information as to the victim and their complaint, including but not limited to victim contact with release risk assessments, police reports relating to arrests and non-arrests, board of probation record, the interstate identification index, restraining orders and affidavits, victim statements, medical reports and photographs evidencing injury, and reports from certified batterer’s treatment programs.

(b) probation officers as established in section 83 of chapter 276 of the general laws who shall exclusively be assigned to cases and complaints involving domestic violence and sexual assault. Probation officers within the unit shall be assigned to an offender or respondent to a domestic violence or sexual assault case or complaint. The probation officer that is assigned to an offender or respondent shall continue to serve the same client if they are found to have re-offended or committed the same offense against the original victim or a new victim. Probation officers within the unit, in addition to the training and education set forth in section 85 of said chapter 276, shall attend a training course on domestic violence and sexual assault and interacting with offenders. Said training course shall be designed and certified by the Governor’s council to address sexual assault and domestic violence in collaboration with any affiliate non-profit organizations. If a probation officer’s assigned respondent or offender enrolls in a certified batterer’s treatment program and is found to be non-compliant with the requirements of the program, the probation officer shall surrender the assigned respondent or offender. During hearings and proceedings, probation officers shall disclose to the judge all material relative to the respondent’s conduct including but not limited to any contact with the victim, global positioning satellite tracking device maintenance, or violations of conditions of release.

SECTION XX. Chapter 276 of the general laws is hereby further amended in section 58A subsection (2) by inserting a new subparagraph after subparagraph (2)(B):-

“(C) subject to the condition that the person maintain or commence a certified batterers’ treatment program in the case of a violation of an order pursuant to section 3, 4 or 5 of chapter 209 A, or a misdemeanor or felony involving abuse as defined in section 1 of said chapter 209A or of a violation of an order of protection issued under said chapter 209A in effect”

SECTION XX. Chapter 209A of the general laws, as so appearing, is hereby amended in section 1 by striking the definition of “Abuse” and replacing it with the following:-

''Abuse'', the occurrence of one or more of the following acts between family, intimate partners, or household members:

(a) attempting to cause or causing physical harm;

(b) placing another in fear of imminent serious physical harm;

(d) coercive control, which is a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty. Examples of coercive control include, but are not limited to, unreasonably engaging in any of the following:

(1) isolating the other party from friends, relatives, or other sources of support;

(2) depriving the other party of basic necessities;

(3) controlling, regulating, or monitoring the other party’s movements, communications, daily behavior, finances, economic resources, or access to services;

(4) compelling the other party by force, threat of force, or intimidation, including threats based on actual or suspected immigration status, to engage in conduct from which the other party has a right to abstain or to abstain from conduct in which the other party has a right to engage.

SECTION XX. Chapter 209A of the general laws is hereby further amended in section 3 in subsection (i) by inserting at the end of the third paragraph the following:-

“When reviewing a request to extend or renew an order, the court shall take into account sobriety and substance use recovery, based on independent medical standards, if substance use was a factor in issuing the original order. A lack of sobriety or continuing existence of substance use shall weigh in favor of extending or renewing the order.”

SECTION XX. Chapter 209A of the general laws is hereby further amended in section 7 in the fifth paragraph by striking out the first sentence and inserting in place thereof the following:-

“Any violation of such order or a protection order issued by another jurisdiction shall be punishable by a fine of not more than ten thousand dollars, or by imprisonment for not more than five years in a house of correction, or by both such fine and imprisonment.”

SECTION XX. Chapter 209A is hereby further amended in section 7 by inserting after the word “compliance” at the end of the sixth paragraph the following sentence:-

“A defendant will not be relieved of his requirement to regularly attend a certified or provisionally certified batterer’s treatment program until said program can confirm in signed writing with the probation department that the defendant has shown marked improvements and has reached a level of understanding and reform that would deem them a non-threat to women. If the defendant is arrested or investigated by the police in connection with reports of domestic violence or sexual assault while enrolled with a certified batterer’s treatment program, said program shall be apprised of the arrest or investigation by the defendant’s probation officer.”

SECTION XX. Chapter 209A is hereby further amended in section 7 by inserting after the word “system” at the end of eighth paragraph the following new paragraph:-

“The removal or destroying of said global positioning satellite tracking device without judicial approval or without a showing of necessity to prevent greater harm shall constitute a felony with a mandatory minimum sentence of 2 years in a state prison.”

SECTION XX. Chapter 209A is hereby amended in section 9 by adding at the end the following:-

“The form of complaint shall be supplied without withholding to any person who requests said form and shall be made easily accessible to the public by the offices promulgating said form.”

SECTION XX. The administrative justices of the superior court, probate and family court, district court, and the Boston municipal court departments shall jointly promulgate a new form of complaint for use under Chapter 209A of the general laws pursuant to this act which shall include but not be limited to the following additional fields:

(1) a field wherein a petitioner may indicate whether they have reasonable cause to be in fear of their life at the time of the complaint form’s submission;

(2) a field wherein a petitioner may indicate whether they are a victim of coercive control, a form of abuse as provided in section 4 of this act.

SECTION XX. The office of public safety and security shall establish, advertise, and maintain a toll-free telephone hotline that shall be capable of responding to and forwarding complaints including but not limited to instances of domestic violence and violations of probation to ensure full and immediate safety of the complainant. For the purposes of this section, “domestic violence” shall have the same meaning as “abuse” as defined in Section 1 of Chapter 209A and as amended by this act.

SECTION XX. Chapter 258B of the general laws, as so appearing, is hereby amended in section 3 in paragraph (b) by adding at the end the following:-

“If the respondent or offender has obtained approval to reschedule a hearing or proceeding, the court shall postpone the commencement of the proceeding if the victim is not present and if they have received communication that the victim is in transit to the proceeding, provided that the court may begin the proceeding within one hour of learning that the victim is in transit. The court may within its discretion postpone the proceeding for any amount of time to allow the victim to be present. If the victim cannot be present for a hearing or proceeding that was rescheduled by the respondent, the court may allow the victim advocate probation officer to offer remarks on behalf of the victim.”

SECTION XX. Chapter 258B is hereby further amended in section 3 in paragraph (g) by inserting after the word “recommendation”, the second time it appears, the following:-

“The prosecutor shall provide ample time to confer with the victim to fully explain the position and answer questions or address concerns.”

SECTION XX. Chapter 258B is hereby further amended in section 3 in paragraph (p) by adding at the end the following:-

“The court has the discretion to allow a victim to make a statement at any time during the proceeding prior to sentencing. The court shall allow a victim of domestic violence abuse as defined in Section 1 of Chapter 209A to make a brief statement at a hearing or proceeding prior to sentencing in response to a statement by the defendant or his attorney regarding a violation of a protective order, a violation of a condition of release, improper tampering with a global positioning satellite tracking device system, or failure to disclose relevant information on such matters. A judge may allow the victim or victim advocate probation officer to stipulate facts provided by the respondent;”

SECTION XX. Chapter 258B is hereby further amended in section 3 by adding the following new subparagraph:-

“(x) In the event of a necessitated change in prosecutors assigned to the victim’s case, the victim shall have the right to confer with the new prosecutor for a minimum of one hour to discuss the facts of the case and familiarize the victim with the prosecutor.”

SECTION XX. Sections XX through XX shall go into effect immediately upon the passage of this act."

SENATE . . . . . . . . . . . . . . No. 2904

The Commonwealth of Massachusetts

_______________

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

_______________

by inserting after section _ the following sections:-

"SECTION XX. Section 1A of chapter 263 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by striking out, in line 3, the word “felony” and inserting in place thereof the following word:- crime.

SECTION XX. Said section 1A of said chapter 263, as so appearing, is hereby further amended by adding the following sentence:- A judge may order that any person arraigned on a criminal charge at the time of arraignment or as soon thereafter as is practicable be photographed and fingerprinted according to the system of the department of state police by a law enforcement agency with jurisdiction over the charge, or by any other entity with that capability.

SECTION XX. The second paragraph of section 18B of chapter 265, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following 2 sentences:- No sentence imposed under the provisions of this section shall be for less or reduced to less than the minimum term of imprisonment. No person convicted under this section be eligible for probation, parole, furlough or work release or receive any deduction from his sentence for good conduct until he shall have served the minimum term of such additional sentence; provided, however, that the commissioner of correction may, on the recommendation of the warden, superintendent or other person in charge of a correctional institution or the administrator of a county correctional institution, grant to such offender a temporary release in the custody of an officer of such institution for the following purposes only: (i) to attend the funeral of a spouse or next of kin; (ii) to visit a critically ill close relative or spouse; or (iii) to obtain emergency medical services unavailable at such institution.

SECTION XX. Section 18C of said chapter 265, as so appearing, is hereby amended by adding the following sentence:- No sentence imposed under this section shall be reduced or suspended nor shall such person so sentenced be eligible for probation, parole, work release or furlough or receive any deduction from such person's sentence for good conduct.

SECTION XX. Chapter 268 of the General Laws is hereby amended by inserting after section 13E the following section:-

Section 13F. Whoever unlawfully removes, destroys, damages, or interferes with the proper functioning of a geolocation monitoring device, breath-testing instrument, or other mechanism intended to facilitate recognizance or compliance with conditions of pretrial release, probation or parole, shall be punished by imprisonment in the state prison for not more than 10 years or imprisonment in a house of correction for not more than 2 and ½ years. In any proceeding under section 58, 58A, 58B or 59 of chapter 276, the fact of a person’s prior conviction pursuant to this section shall be prima facie evidence that there is no financial condition or other condition of release that will reasonably assure the presence of the person so convicted.

SECTION XX. Section 42A of chapter 276 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by striking out the first 6 paragraphs and inserting in place thereof the following paragraph:-

As part of the disposition of any criminal complaint involving a crime of abuse, as defined in section 57, the court may establish such terms and conditions of probation as will insure the safety of the person who has suffered such abuse or threat thereof, and will prevent the recurrence of such abuse or threat thereof.

SECTION XX. Said chapter 276 is hereby amended by striking out sections 57 through 58B, inclusive, as so appearing, and inserting in place thereof the following 6 sections:-

Section 57. (a) As used in sections 57 through 59, the following words shall, unless the context clearly requires otherwise, have the following meanings:

“Controlled substance”, the same meaning as in section 1 of chapter 94C.

“Crime of abuse”, a crime that involves assault and battery, trespass, threat to commit a crime, or any other criminal conduct and that involves the infliction, or the imminent threat of infliction, of physical harm upon a person by such person’s family or household member as defined in section 1 of chapter 209A; any violation of an order issued pursuant to section 18 or 34B of chapter 208, section 32 of chapter 209, section 3, 4 or 5 of chapter 209A or section 15 or 20 of chapter 209C; or any act that would constitute abuse, as defined in section 1 of chapter 209A; or a violation of section 13M or 15D of chapter 265.

“Dangerous crime”, any of the following:

(A) a felony that has as an element of the crime the use, attempted use or threatened use of physical force against the person of another;

(B) the crimes of burglary or arson;

(C) a violation of an order pursuant to section 18, 34B or 34C of chapter 208, section 32 of chapter 209, section 3, 4 or 5 of chapter 209A or section 15 or 20 of chapter 209C;

(D) a misdemeanor or felony involving abuse as defined in section 1 of chapter 209A;

(E) a sex offense involving a child as defined in section 178C of chapter 6;

(F) a violation of section 13B of chapter 268;

(G) a violation of section 13, 13 ½, 13B, 13B ½, 13 B ¾, 13F, 18B, 22, 22A, 22B, 22C, 23, 23A, 23B, 24, 25, 26B, 26C, 37, 43A, 50 or 51 of chapter 265 or a violation of section 13D of said chapter 265 in which the public employee is a police officer;

(H) a violation of section 4A, 4B, 16, 29A, 29B, 29C, 77 or 105 of chapter 272;

(I) a violation of section 24G of chapter 90 which occurs under the influence of alcohol or drugs, or a violation of section 8B of chapter 90B; or a third or subsequent violation of section 24 of chapter 90 or section 8 of chapter 90B;

(J) a crime under chapter 94C for which the maximum term of imprisonment is more than 10 years;

(K) any violation of sections 102 or 102A, or a malicious violation of section 127 of chapter 266;

(L) a violation of section 131N of chapter 140 or subsection (a), (b), (c), (d), (h), (j) or (m) of section 10 or section 11C of chapter 269;

(M) a violation of section 10A, 10E, or 10G of chapter 269;

(N) threats to kill, rape, or cause serious bodily injury;

(O) conspiracy or solicitation to commit any of the above enumerated crimes.

“Financial condition”, a secured or unsecured bond.

“Judicial officer”, a judge or a clerk or assistant clerk of the superior, district, Boston municipal, or juvenile court.

“Release order”, any order releasing a defendant on personal recognizance or on conditions, regardless of whether the defendant has satisfied any financial condition.

“Secured bond”, payment to the court of a specified amount of money that in the discretion of the judicial officer will reasonably assure the presence of a defendant, taking into consideration the defendant’s ability to pay.

“Unsecured bond”, a defendant’s promise to pay to the court a specified amount of money if the defendant does not appear before the court on a date certain or fails to abide by any conditions of release set under clause (B) of paragraph (1) of subsection (b) of section 58, such amount being an amount that in the discretion of the judicial officer will reasonably assure the presence of a defendant, taking into consideration the defendant’s ability to pay.

(b) Upon the appearance of a defendant charged with a crime, the judicial officer shall hold a hearing, at which the defendant and his counsel, if any, may participate and inquire into the case, to determine whether the defendant shall be released or detained pending trial of the case, as provided in this section and sections 58, 58A, and 58B. At the hearing, the judicial officer shall have immediate access to all pending and prior criminal offender record information, board of probation records, out of state criminal records, and police and incident reports related to the defendant, upon oral, telephonic, facsimile or electronic mail request, to the extent practicable.

At the conclusion of such hearing, the judicial officer shall issue an order that, pending trial, the defendant be:

(1) Released on personal recognizance under clause (A) of paragraph (1) of subsection (b) of section 58;

(2) Released on financial or other conditions under clauses (B) or (C) of paragraph (1) of subsection (b) of section 58;

(3) Detained under section 58A;

(4) Released on financial or other conditions under section 58A; or

(4) Temporarily detained to permit an opportunity for the attorney for the commonwealth to move for revocation of conditional release under section 58B.

(c)For a person who is arrested and not released under section 59, a hearing under section 58 shall take place no later than the next day that the superior, district, Boston municipal, or juvenile court in the place of jurisdiction is in session, provided that, in a case that involves a crime of abuse, (1) the commonwealth shall be the only party permitted to move for arraignment within 3 hours of a complaint being signed by a magistrate or a magistrate’s designee; and (2) a defendant arrested, who has attained the age of 18 years, shall not be released sooner than 6 hours after arrest, except by a judge in open court.

Any hearing under section 58A shall be held immediately upon the motion of the commonwealth unless the defendant, or the attorney for the commonwealth, seeks a continuance. Except for good cause, a continuance on motion of the defendant may not exceed 5 business days, and a continuance on motion of the attorney for the commonwealth may not exceed 3 business days. During a continuance, the individual shall be detained. The commonwealth may move for an initial hearing under section 58A at any time before disposition of the case. Once a hearing under section 58A commences, the defendant shall be detained pending completion of the hearing.

In any pending case where the defendant has been first arraigned in the district, Boston municipal, or juvenile court and is subsequently arraigned in superior court for the same or related crimes arising out of the same incident, the superior court may conduct a new hearing under section 58 or, upon motion of the commonwealth, section 58A, provided that any order of the district, Boston municipal, or juvenile court concerning the defendant issued under section 58 or 58A shall remain in effect until such time as the superior court issues a new order under section 58 or 58A. In any such new hearing in the superior court, the judicial officer shall consider the defendant’s compliance with any previously ordered conditions of release.

Any hearing under section 58 may be reopened by the judicial officer, and any hearing under section 58A may be reopened by the judge. Any hearing under either section may also be reopened upon motion of the commonwealth or the defendant, provided that the judicial officer or judge determines by a preponderance of the evidence that: (1) information exists that was not known to the movant at the time of the hearing or there has been a material change in circumstances; and (2) such information or change in circumstances has a substantial bearing on the issue of whether the defendant’s detention, defendant’s release on conditions, or conditions imposed on the defendant are necessary and sufficient to reasonably assure the appearance of the defendant and the safety of any other person and the community. In any such reopened hearing, the judicial officer shall consider the defendant’s compliance with any previously ordered conditions of release.

Section 58. (a) Unless the attorney for the commonwealth has moved for detention under section 58A, the judicial officer shall order the pretrial release of a defendant on personal recognizance, subject to the condition that the defendant not commit a new crime during the period of release, unless the judicial officer determines, in the exercise of his or her discretion, that the release will not reasonably assure the appearance of the defendant or will endanger the safety of any other person or the community.

(b) If the judicial officer determines, in the exercise of his or her discretion, that the release described in subsection (a) will not reasonably assure the appearance of the defendant or will endanger the safety of any other person or the community:

(1) the judicial officer shall order the pretrial release of the defendant subject to:

(A) the condition that the defendant not commit a new crime during the period of release; and

(B) the least restrictive further condition, or combination of conditions, that the judicial officer determines will reasonably assure the appearance of the defendant, which may include the condition or combination of conditions that the defendant during the period of release shall:

(i) abide by specified restrictions on place of abode or travel;

(ii) report on a regular basis to a designated law enforcement agency, pretrial services agency, or other agency;

(iii) refrain from use of alcohol, marijuana, or other intoxicants, and from use of any controlled substance, except as prescribed or certified by a licensed medical practitioner;

(iv) submit to random testing to monitor compliance with any conditions ordered under subclause (iii);

(v) comply with a specified curfew or home confinement;

(vi) undergo medical, psychological, or psychiatric treatment, including treatment for substance or alcohol use disorder, if available, and remain in a specified institution if required for that purpose;

(vii) submit to electronic monitoring, provided that any condition of electronic monitoring may include either specified inclusion or exclusion zones or a curfew;

(viii) participate in a community corrections program pursuant to chapter 211F; provided, however, that the defendant shall consent to such participation;

(ix) participate in a notification program pursuant to subsection (c);

(x) provide an unsecured or secured bond to satisfy a financial condition that the judicial officer may specify; provided that a financial condition shall be set in an amount no higher than what would reasonably assure the appearance of the person before the court after taking into account the person’s financial resources; provided, however, that a higher than affordable financial condition may be set if neither alternative nonfinancial conditions nor an amount which the person could likely afford would adequately assure the person’s appearance before the court; and provided further that for crimes that do not carry a penalty of incarceration, no secured bond may be ordered unless the defendant has previously failed to appear on that charge; and

(xi) satisfy any other condition that is reasonably necessary to assure the appearance of the defendant; and

(C) the least restrictive further condition, or combination of conditions, that the judicial officer determines will reasonably assure the safety of any other person and the community, which may include the condition or combination of conditions that the defendant during the period of release shall:

(i) refrain from abusing and harassing any alleged victim of the charged crime and any potential witness who may testify concerning the charged crime;

(ii) stay away from and have no contact with an alleged victim of the charged crime and with any potential witness who may testify concerning the charged crime;

(iii) refrain from possessing a firearm, rifle, shotgun, destructive device, or other dangerous weapon;

(iv) comply with restrictions on personal associations, a curfew or home confinement;

(v) refrain from use of alcohol, marijuana, or other intoxicants, and from use of any controlled substance except as prescribed or certified by a licensed medical practitioner;

(vii) submit to electronic monitoring, provided that any condition of electronic monitoring may include either specified inclusion or exclusion zones or a curfew;

(viii) satisfy any other condition that is reasonably necessary to assure the safety of any other person and the community.

(2) When setting any conditions under clause (B) of paragraph (1), the judicial officer shall consider where relevant the following factors concerning the defendant:

(A) financial resources;

(B) family ties;

(C) any record of convictions under the laws of the commonwealth or the laws of another state, the United States, or a military, territorial or Indian tribal authority;

(D) potential penalty the defendant faces;

(E) any illegal drug distribution or present drug dependency;

(F) any employment record;

(G) any history of mental illness;

(H) any flight to avoid prosecution or fraudulent use of an alias or false identification;

(I) any failure to appear at any court proceedings to answer to a charge;

(J) any prior violation of conditions of release, probation, or parole, or of a temporary or permanent order issued under section 18 or 34B of chapter 208, section 32 of chapter 209, section 3, 4 or 5 of chapter 209A or section 15 or 20 of chapter 209C;

(K) the nature and circumstances of the crimes charged;

(L) whether the defendant was, at the time of the crime charged, on release pending adjudication, sentencing or appeal of a prior charge;

(M) whether the defendant was, at the time of the crime charged, under the supervision of the commissioner of probation, the parole board or any other comparable authority of this or another state or of the federal government.

(3) When setting any conditions under clause (C) of paragraph (1), the judicial officer shall consider where relevant the following factors concerning the defendant:

(A) any factors listed in clauses (B) through (M) of paragraph (2);

(B) whether the acts alleged involve a crime of abuse;

(C) any history of orders issued against the defendant pursuant to section 18 or 34B of chapter 208, section 32 of chapter 209, section 3, 4 or 5 of chapter 209A or section 15 or 20 of chapter 209C; and

(D) any risk that the defendant will attempt to obstruct justice, or attempt to threaten, injure, or intimidate a prospective witness or juror.

(4) In establishing any financial condition under clause (B) of paragraph (1), any order must comply with the following requirements:

(A) A judicial officer may not impose a financial condition to assure the safety of any other person or the community, but may impose a financial condition when necessary to reasonably assure the defendant’s appearance.

(B) Where it appears, based on credible evidence, that the defendant lacks sufficient financial resources to post any secured bond required by the judicial officer, such that requiring such secured bond will result in the long-term pretrial detention of the defendant, the judicial officer must provide findings of fact and a statement of reasons for the decision, either in writing or orally on the record, confirming that the judicial officer considered the defendant's financial resources and explaining why the defendant's risk of non-appearance is so great that no alternative, less restrictive financial or nonfinancial conditions will suffice to assure the defendant’s presence at future court proceedings and explaining how the amount was calculated after taking the person’s financial resources into account and why the commonwealth’s interest in a financial condition outweighs the potential adverse impact on the person, their immediate family or dependents resulting from pretrial detention.

(C) When reconsidering or reviewing a financial condition in a case where a defendant has been detained due to his inability to meet the financial condition, a judicial officer shall consider the length of the defendant’s pretrial detention and the equities of the case.

(5) If the judicial officer imposes a financial condition, the clerk and assistant clerks of the court shall accept, without charging any fee, any money tendered in satisfaction of such financial condition during the regular business hours of that court.

(6) Before ordering the release of any defendant charged with a crime against the person or property of another, the judicial officer shall comply with the domestic abuse inquiry requirements of section 56A.

(7) In a release order issued under this section, the judicial officer shall:

(A) Include a written statement that sets forth all the conditions to which the release is subject, in a manner sufficiently clear and specific to serve as a guide for the defendant’s conduct; and

(B) If the defendant is not released on personal recognizance or unsecured bond, include a written summary of the reasons for denying such release and detailed reasons for imposing any financial condition; and

(i) The consequences of violating a condition of release, including immediate arrest or issuance of a warrant for the defendant’s arrest, revocation of release, and, if applicable, the potential that the person may face criminal penalties, including penalties for violating section 13B of chapter 268; and

(ii) If the defendant is charged with a crime of abuse, informational resources related to domestic violence, which shall include, but shall not be limited to, a list of certified intimate partner abuse education programs located within or near the court’s jurisdiction.

(c) A person who has been charged with a crime shall provide the court with his or her cellular telephone number, if the defendant has such a device, unless the defendant opts out of the service provided under this subsection; provided, however, that upon the order of a judicial officer pursuant to subclause (ix) of clause (B) of paragraph (1) of subsection (b), a defendant may not opt out of such service. The court shall provide a service using a system of automated text messaging to remind criminal defendants of mandatory court appearance dates in advance of the date of such appearance. The court shall keep all information provided by a criminal defendant pursuant to this subsection confidential, and such information may not be used in any proceeding; provided, however, that the fact that a defendant did or did not participate in this system shall be marked on the docket and may be used in a proceeding if otherwise admissible.

(d) There shall not exist in the case of a person charged with murder a right to release pending trial; provided, however, that a judge may in his or her discretion, order a defendant so charged released subject to any conditions enumerated in paragraph (1) of subsection (b).

Section 58A. (a) Upon motion of the attorney for the commonwealth, the judge shall hold a hearing to determine whether any condition or combination of conditions set forth in section 58 will reasonably assure the safety of any other person and the community, in a case:

(1) where the defendant is charged with a dangerous crime; or

(2) where the defendant is charged with a crime for which the potential penalty includes a sentence to the house of correction or state prison and

(A) the defendant has been convicted of a dangerous crime, or has been convicted of a like violation of the laws of another state, the United States or a military, territorial or Indian tribal authority; or

(B) there are specific, articulable facts and circumstances demonstrating a serious risk that the defendant may attempt to obstruct justice, or attempt to threaten, injure, or intimidate a law enforcement officer, an officer of the court, or a prospective witness or juror in any criminal investigation or judicial proceeding.

(b) (1) If, after a hearing, the judge finds by clear and convincing evidence that no condition or combination of conditions will reasonably assure the safety of any other person and the community, the judge shall order that the defendant be detained pending trial. Such order shall:

(A) include written findings of fact and a written statement of the reasons for the detention;

(B) direct that the defendant be committed to a corrections facility separate, to the extent practicable, from persons serving sentences; and

(2) If, after a hearing, the judge does not issue an order under paragraph (1), the defendant shall be released, pursuant to section 58, on personal recognizance or unsecured bond or on such conditions as the judge determines to be necessary to reasonably assure the safety of any other person and the community.

(1) the judge shall take into account available information concerning:

(A) any of the factors listed in paragraph (3) of subsection (b) of section 58 where relevant; and

(B) the nature and seriousness of the danger to any person or the community that would be posed by the defendant’s release;

(2) the defendant shall have the right to be represented by counsel at a hearing under this section and, if financially unable to obtain adequate representation, to have counsel appointed;

(3) the defendant shall be afforded an opportunity to testify;

(4) the defendant shall be afforded an opportunity to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise; provided, however, that before issuing a summons to an alleged victim, or a member of the alleged victim’s family, to appear as a witness at the hearing, the defendant shall demonstrate to the court a good faith and reasonable basis for believing that the testimony from the witness will be material and relevant to support a conclusion that the defendant should not be detained; and

(5) the law concerning admissibility of evidence in criminal trials shall not apply to the presentation and consideration of information at a hearing under this section.

(d) When a defendant has been released pursuant to section 58 and the attorney for the commonwealth subsequently files a motion seeking to detain the defendant under this section, the attorney for the commonwealth may file such motion ex parte. Upon such ex parte filing, the court may, for good cause shown, issue a warrant for the defendant’s arrest to secure his presence for such hearing. Any such hearing shall occur as otherwise set forth in this section.

(e) A defendant detained under this section shall be detained until the disposition of the case and shall brought to trial as soon as reasonably possible.

(f) Nothing in this section shall be construed as modifying or limiting the presumption of innocence.

Section 58B. (a) A defendant who has been released after a hearing pursuant to section 58, 58A, 59 or 87 and who has violated a condition of his release, shall be subject to a revocation of release and an order of detention following a motion by the attorney for the commonwealth and a hearing as provided below. If there is probable cause to believe that, while on release, the defendant committed a felony or a dangerous crime a rebuttable presumption shall arise that no condition or combination of conditions will assure that the person will not pose a danger to the safety of any other person or the community.

(b)The judge shall enter an order of revocation and detention if after a hearing the judge finds:

(1) that there is probable cause to believe that the defendant has committed a felony or dangerous crime while on release; and

(2) by a preponderance of the evidence, that there are no conditions of release that will reasonably assure the defendant will not pose a danger to the safety of any other person or the community, or the defendant is unlikely to abide by any condition or combination of conditions of release.

(c) The judge may enter an order of revocation and detention if after a hearing the judge finds that there is probable cause to believe that the defendant has committed any crime while on release or clear and convincing evidence that the defendant has violated any other condition of release.

(d) If, following a hearing under this section, the judge does not issue a revocation order, the judge may issue a release order that may include any condition or combination of conditions of release set forth in clauses (B) and (C) of paragraph (1) of subsection (b) of section 58.

(e) Upon the defendant’s first appearance before the judge in the court which that conduct proceedings for revocation of a release order under this section, the hearing concerning revocation shall be held immediately unless the defendant or the attorney for the commonwealth seeks a continuance. During a continuance the defendant shall be detained. Except for good cause, a continuance on motion of the defendant shall not exceed 5 business days, a continuance on motion of the attorney for the commonwealth or probation shall not exceed 3 business days.

(f) A defendant detained under an order of revocation and detention shall be detained until the disposition of the case and shall be brought to trial as soon as reasonably possible.

(g)Where a person who is released under section 58, 58A, this section or 59 is the subject of a new criminal charge, the probation officer of the court issuing the new criminal charge shall notify the probation officer and the attorney for the commonwealth for the court or courts that have ordered the defendant’s release on any earlier criminal charges

Section 58C. In a case involving a crime of abuse or a dangerous crime with an identified victim, no person shall be released pursuant to section 58, 58A, 58B or 59 before the alleged victim is notified of the defendant’s imminent release; provided, however, that the defendant shall not be held more than 6 hours in order to permit prior notice to the alleged victim.

When a defendant is to be released from the custody of a police department, such notice shall be provided by the police department. When a defendant is to be released from a courthouse, such notice shall be provided by the attorney for the commonwealth. When a defendant is to be released from a jail or correctional facility, such notice shall be provided by the superintendent. The person or agency responsible for providing notice shall undertake to provide notice promptly.

Section 58D. Either the defendant or the attorney for the commonwealth, if aggrieved by the entry of an order or granting or denial of a motion under section 58, 58A or 58B by the district, Boston municipal or juvenile court, may petition the superior court for a review of such decision. Upon entry of such order or ruling on such motion, the justice of the district, Boston municipal or juvenile court shall immediately notify a defendant of his right to file a petition for review in the superior court. The trial court shall establish rules for the filing of such petitions, scheduling the hearing of such petitions and ensuring the transmission of necessary information to the superior court and notice to the parties and the probation department. The superior court shall in accordance with such rules, hear the petition for review as speedily as practicable and except for unusual circumstances, on the same day the petition is filed; provided, however, that the court may continue the hearing to the next business day if the required records and other necessary information are not available. The superior court may, after a hearing on the petition for review, grant the petition only upon a finding that the decision of the district, Boston municipal or juvenile court was the result of an error of law or abuse of discretion.

Section 59. (a) As used in this section, the following words, unless the context clearly requires otherwise, shall have the following meanings:-

“Bail commissioner”, a person other than a statutorily authorized magistrate or a superior court assistant clerk appointed by the trial court to admit people to bail after court hours.

“Bail magistrate”, a clerk-magistrate or assistant clerk-magistrate of the district, Boston municipal, or juvenile court departments, or a clerk of court of the superior court department or an assistant clerk of the superior court who has been approved by the trial court to admit people to bail after court hours.

(b) Except as provided in subsection (n), a bail commissioner or bail magistrate shall order the pretrial release of a person arrested and charged with a crime on personal recognizance subject to the condition that the person not commit a new crime during the period of release, unless the bail commissioner or bail magistrate determines that release on personal recognizance will not reasonably assure the appearance of the person or will endanger the safety of any other person or the community. Prior to issuing a release order or any other order under this section, the bail commissioner or bail magistrate shall have immediate access to all pending and prior criminal offender record information, board of probation records, out of state criminal records, and police and incident reports related to the person detained, upon oral, telephonic, facsimile or electronic mail request, to the extent practicable.

(c) If the bail commissioner or bail magistrate determines that a release on personal recognizance subject to the condition that the person not commit a new crime during the period of release will not reasonably assure the appearance of the person or will endanger the safety of any other person or the community, the bail commissioner or bail magistrate shall order the pretrial release of the person subject to:

(1) the condition that the person not commit a new crime during the period of release; and

(2) the least restrictive further condition, or combination of conditions, that the bail commissioner or bail magistrate determines will reasonably assure the appearance of the person and the safety of any other person and the community, which may include the condition or combination of conditions that the person during the period of release shall:

(A) abide by specified restrictions on place of abode or travel;

(B) refrain from use of alcohol, marijuana, or other intoxicants, and from use of any controlled substance, except as prescribed or certified by a licensed medical practitioner;

(D) refrain from abusing and harassing any alleged victim of the charged crime and any potential witness who may testify concerning the charged crime;

(E) stay away from and have no contact with an alleged victim of the charged crime and with any potential witness who may testify concerning the charged crime;

(F) refrain from possessing a firearm, rifle, shotgun, destructive device, or other dangerous weapon;

(G) provide unsecured or secured bond to satisfy a financial condition that the bail commissioner or bail magistrate may specify; or

(H) satisfy any other condition that is reasonably necessary to assure the appearance of the person or the safety of any other person or the community.

When setting conditions under this subsection, the bail commissioner or bail magistrate shall consider, where relevant, the factors set forth in paragraphs (2) and (3) of subsection (b) of section 58.

(d) In a case that meets the criteria set forth in subsection (a) of section 58A, the bail commissioner or bail magistrate shall order the person held until the next day that court is in session unless the bail commissioner or bail magistrate determines that some condition or combination of conditions will reasonably assure the safety of any alleged victim, any witness to the alleged crime and the community. In making this determination, the bail commissioner or bail magistrate shall consider the factors set forth in subsection (c) of section 58A. The bail commissioner or bail magistrate shall memorialize such determination in a written statement of reasons.

(e) Bail commissioners and bail magistrates may not impose a financial condition to assure the safety of any other person or the community, but may impose a financial condition when necessary to reasonably assure the person’s appearance.

(f) Before issuing any release order under this section for a person who has been charged with a new crime while released pending adjudication of a prior charge or who is on probation, the bail commissioner or bail magistrate shall contact the probation service electronic monitoring center to inform the service of the person’s arrest and charge.

(g) In a release order issued under this section, the bail commissioner or bail magistrate shall advise the person of:

(1) The consequences of violating a condition of release, including immediate arrest or issuance of a warrant for the person’s arrest, revocation of release, and, if applicable, the potential that the person may face criminal penalties, including penalties for violating section 13B of chapter 268; and

(2) if the person is charged with a crime of abuse, informational resources related to domestic violence, which shall include, but are not limited to, a list of certified intimate partner abuse education programs located within or near the court’s jurisdiction.

(h) The terms and conditions of any order by the bail commissioner or bail magistrate shall remain in effect until the person is brought before the court for arraignment.

(i) When a bail commissioner or bail magistrate releases a person on conditions under subsection (c), the bail commissioner or bail magistrate shall record the conditions and provide a copy of such conditions to the person and the detaining authority and shall transmit a copy to the court.

(j) If a person released on conditions by a bail commissioner or bail magistrate under subsection (b) or (c) violates any such condition, the person may be subject to an order of revocation of release and detention pursuant to section 58B.

(k) All bail commissioners and bail magistrates authorized to release a person on recognizance, release a person on conditions, or detain a person under this section shall be governed by rules established by the chief justice of the trial court, subject to review by the supreme judicial court.

(l) Nothing in this section shall authorize a bail commissioner or bail magistrate to release a person arrested and charged with murder or a person arrested and charged with a crime of abuse while an order of protection under chapter 209A was in effect against such person.

SECTION X. Said chapter 276 is hereby further amended by inserting after section 82Athe following section:-

Section 82B. A person who is found violating any condition ordered under section 58 of chapter 119, section 58, 58A, 58B, 59, or 87 of this chapter, or section 1 or 1A of chapter 279, or any other condition of probation imposed by a court after conviction or admission to sufficient facts, or any term or condition of parole imposed by the parole board, may be arrested by a sheriff, deputy sheriff or police officer and kept in custody in a convenient place, not more than 24 hours, Sunday excepted, until notice of the violation can be given to the probation service, and such person be taken before the court upon a warrant issued by the probation service; or, in the case of a person under parole supervision, to the parole board.

SECTION X. Subsection (a) of section 25 of chapter 279 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by adding the following sentence:- No sentence imposed under this subsection shall be reduced or suspended nor shall such person so sentenced be eligible for probation, parole, work release or furlough or receive any deduction from such person's sentence for good conduct.

SECTION X. There shall be a task force on criminal history data enhancements. The task force shall develop recommendations for enhancements to the criminal history information available to bail commissioner, bail magistrates, judicial officers, prosecutors and defense counsel that will allow actors in the criminal justice system to make more informed recommendations and decisions regarding questions of pre-trial release and allow for access to pre-trial release conditions by law enforcement. The task force shall consider the value, cost and practicality of adding to a defendant’s criminal history information regarding determinations of dangerousness, custody status, release conditions, reasons for detention, incidents of non-compliance with any conditions of pre-trial release and decisions regarding revocation of release. The task force shall identify, with respect to each recommendation, whether it requires legislation and, if so, prepare draft legislation.

The task force shall be comprised of the following persons or their designees: the secretary of the executive office of public safety and security, who shall serve as chair; the secretary of the executive office of technology services and security; the chief justice of the trial court; the commissioner of probation; the president of the Massachusetts district attorneys association; the chief counsel of the committee for public counsel services; and the president of the Massachusetts chiefs of police association. The task force shall consult with other individuals who have relevant expertise as needed.

The task force shall, within 180 days of the passage of this bill, submit its recommendations to the governor and to the clerks of the senate and house of representatives and the clerks shall forward the report to the senate and house chairs of the joint committee on the judiciary

SECTION XX. Subsection (c) of section 58 of chapter 276 shall take effect on July 1, 2023.

SENATE . . . . . . . . . . . . . . No. 2905

The Commonwealth of Massachusetts

_______________

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

_______________

by inserting after section _ the following new section:-

"SECTION _. Paragraph A of section 99 of chapter 272 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by striking out the third subparagraph and inserting in place thereof the following 2 subparagraphs:-

The general court further finds that in certain circumstances normal investigative procedures may not be effective in the investigation of specific illegal acts not associated with organized crime as enumerated in clause (b) of subparagraph 7 of paragraph B of this section. Therefore, law enforcement officials may be permitted to use modern methods of electronic surveillance, under strict judicial supervision, when investigating these specific enumerated crimes.

The general court further finds that the uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth. Therefore, the secret use of such devices by private individuals must be prohibited. The use of such devices by law enforcement officials must be conducted under strict judicial supervision and must be limited to the investigation of designated offenses as defined in subparagraph 7 of paragraph B of this section. Because the commonwealth has a substantial interest in the investigation and prosecution of designated offenses committed within its borders, this section shall authorize, under appropriate judicial supervision, the interception of electronic communications between parties located outside the commonwealth, so long as the designated offense under investigation is one over which the commonwealth has jurisdiction, and the listening post is within the commonwealth.

SECTION _. Paragraph B of said section 99 of said chapter 272, as so appearing, is hereby amended by striking out the first subparagraph and inserting in place thereof the following subparagraph:-

1.The term “wire communication” means any transfer made in whole or in part through the use of facilities which allow for the transmission of communications by the aid of wire, cable, wireless, electronic, digital, radio, electromagnetic, satellite, cellular, optical or other technological means in order to achieve a connection between the point of origin and the point of reception, regardless of whether or not such communication travels in part within a switching station or other facility. The term “wire communication” shall also include: any transfer of signs, signals, writing, images, photographs, videos, texts, sounds, data or intelligence of any nature transmitted in whole or in part by using a cellular telephone, smartphone, personal data assistant or similar device, but shall not include: (i) any communication made through a tone-only paging device; (ii) any communication from a tracking device, defined as an electronic or mechanical device which permits the tracking of the movement of a person or object; or (iii) electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds.

SECTION _. Said paragraph B of said section 99 of said chapter 272, as so appearing, is hereby further amended by striking out the third, fourth and fifth subparagraphs and inserting in place thereof the following 3 subparagraphs:-

3. The term “intercepting device” means any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication other than a hearing aid or similar device which is being used to correct subnormal hearing to normal; and other than any telephone or telegraph instrument, equipment, facility, or a component thereof, (a) furnished to the subscriber or user by a communications common carrier in the ordinary course of business under its tariff and being used by the subscriber or user in the ordinary course of its business; or (b) being used by a communications common carrier in the ordinary course of its business. No body-mounted camera with an audio recording feature shall be considered an intercepting device when such an instrument is worn openly by a uniformed investigative or law enforcement officer or one conspicuously displaying his or her badge of authority or other visible indicator of his or her status as an investigative or law enforcement officer. No vehicle-mounted camera with an audio recording feature shall be considered an intercepting device when it is mounted on a marked law enforcement vehicle, or when such an instrument is used to record a motor vehicle stop or other encounter involving a uniformed law enforcement officer, or one conspicuously displaying his or her badge of authority or other visible indicator of his or her status as a law enforcement officer.

4. The term ''interception'' means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication; provided that it shall not constitute an interception (a) for an investigative or law enforcement officer to obtain information in real time concerning the existence of a communication and the identity of the parties to a communication, but not the contents of the communication itself, where such action has been specifically authorized by the order of a court of competent jurisdiction pursuant to the procedure prescribed by 18 U.S.C. § 3123; or (b) for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein.

5. The term ''contents'', when used with respect to any wire or oral communication, means any information concerning the contents, substance, purport, or meaning of that communication, including any spoken words, visual images or written material.

SECTION _. Said paragraph B of said section 99 of said chapter 272, as so appearing, is hereby further amended by striking out the seventh subparagraph and inserting in place thereof the following subparagraph:-

7. The term ''designated offense'' shall include (a) the following offenses in connection with organized crime as defined in the preamble:

; the illegal use, possession, theft, transfer or trafficking of one or more firearms, rifles, shotguns, sawed-off shotguns, machine guns, assault weapons, large capacity weapons, covert weapons as defined by section 121 of chapter 140, or silencers; any arson; assault and battery with a dangerous weapon; bribery; any felony burglary; money laundering in violation of chapter 267A; enterprise crime in violation of chapter 271A; extortion; forgery; gaming in violation of sections 38, 39, 40, 41 and 43 of chapter 23K and sections 16A and 17 of chapter 271; kidnapping; any felony larceny; lending of money or things of value in violation of the general laws; perjury; any felony involving prostitution; robbery; subornation of perjury; any violation of section 13B of chapter 268; any violation of sections 29A, 29B and 105 of chapter 272; any violation of this section; being an accessory to any of the foregoing offenses; and conspiracy, attempt or solicitation to commit any of the foregoing offenses; and (b) the following offenses, whether or not in connection with organized crime, as referenced in paragraph 3 of the preamble: any murder or manslaughter, except under section 13 ½ of chapter 265; rape as defined in sections 22, 22A, 22B, 22C, 23, 23A, 23B, 24 and 24B of chapter 265; human trafficking in violation of sections 50 through 53 of chapter 265; any violation of chapter 94C involving the trafficking, manufacture, distribution of, or intent to distribute controlled substances; illegal trafficking in weapons; the illegal use or possession of explosives or chemical, radiological or biological weapons; civil rights violation causing bodily injury; intimidation of a witness or potential witness, or a judge, juror, grand juror, prosecutor, defense attorney, probation officer or parole officer; being an accessory to any of the foregoing offenses; and conspiracy, attempt or solicitation to commit any of the foregoing offenses.

SECTION _. Paragraph I of said section 99 of said chapter 272, as so appearing, is hereby amended by striking out the second subparagraph and inserting in place thereof the following subparagraph:-

2. The date of issuance, the date of effect, and termination date which in no event shall exceed 40 days from the date of effect. The warrant shall permit interception of oral or wire communications for a period not to exceed 30 days. If physical installation of a device is necessary, the 40 day period shall begin upon the date of installation. If the effective period of the warrant is to terminate upon the acquisition of particular evidence or information or oral or wire communication, the warrant shall so provide; and

SECTION _. Said paragraph I of said section 99 of said chapter 272, as so appearing, is hereby further amended by striking out the sixth subparagraph and inserting in place thereof the following 3 subparagraphs:-

6. The identity of the agency authorized to intercept the communications, and of the person authorizing the application; and

7. A statement providing for service of the warrant pursuant to paragraph L except that if there has been a finding of good cause shown requiring the postponement of such service, a statement of such finding together with the basis therefor must be included and an alternative direction for deferred service pursuant to paragraph L, subparagraph 2.

8. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in 30 days.

SECTION _. Paragraph J of said section 99 of said chapter 272, as so appearing, is hereby amended by striking out the second subparagraph and inserting in place thereof the following subparagraph:-

2. Upon such application, the judge may issue an order renewing the warrant and extending the authorization for a period not exceeding 30 days from the entry thereof. Such an order shall specify the grounds for the issuance thereof. The application and an attested copy of the order shall be retained by the issuing judge to be transported to the chief justice in accordance with the provisions of paragraph N of this section. In no event shall a renewal be granted which shall terminate later than 2 years following the effective date of the warrant.

SECTION _. Said section 99 of said chapter 272, as so appearing, is hereby further amended by striking out paragraph K and inserting in place thereof the following paragraph:-

K. Warrants: manner and time of execution

1. A warrant may be executed pursuant to its terms anywhere in the commonwealth, or any other place that facilitates a wire communication to which at least 1 party is within the commonwealth; or which otherwise involves a communication regarding a criminal offense for which criminal jurisdiction would exist in the commonwealth.

2. Such warrant may be executed by the authorized applicant personally or by any investigative or law enforcement officer of the commonwealth designated by him for the purpose, or by any designated individual operating under a contract with the Commonwealth or its subdivisions, acting under the supervision of an investigative or law enforcement officer authorized to execute the warrant.

3. The warrant may be executed according to its terms during the hours specified therein, and for the period therein authorized, or a part thereof. The authorization shall terminate upon the acquisition of the oral or wire communications, evidence or information described in the warrant. Upon termination of the authorization in the warrant and any renewals thereof, the interception must cease at once, and any device installed for the purpose of the interception must be removed as soon thereafter as practicable. Entry upon private premises for the removal of such device is deemed to be authorized by the warrant.

4. In the event the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception.

5. Upon request of the applicant, the issuing judge may direct that a provider of wire or electronic communications service, landlord, custodian, or other person shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party whose communications are to be intercepted. Any provider of wire or electronic communications service, landlord, custodian or other person furnishing such facilities or technical assistance shall be compensated therefore by the applicant for reasonable expenses incurred in providing such facilities or assistance."

SENATE . . . . . . . . . . . . . . No. 2901

The Commonwealth of Massachusetts

_______________

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

_______________

by adding the following section:-

“SECTION XX. Chapter 149 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by inserting after section 203 the following section:-

Section 203 ½: Leave from work when a contract worker has been victim of abusive behavior

(a) For purposes of this section, the following words shall have the following meanings, unless the context clearly indicates otherwise:

''Abuse'', (i) attempting to cause or causing physical harm; (ii) placing another in fear of imminent serious physical harm; (iii) causing another to engage involuntarily in sexual relations by force, threat or duress or engaging or threatening to engage in sexual activity with a dependent child; (iv) engaging in mental abuse, which includes threats, intimidation or acts designed to induce terror; (v) depriving another of medical care, housing, food or other necessities of life; or (vi) restraining the liberty of another.

''Abusive behavior'', (i) any behavior constituting domestic violence, (ii) stalking in violation of section 43 of chapter 265, (iii) sexual assault, which shall include a violation of sections 13B, 13B1/2, 13B3/4, 13F, 13H, 22, 22A, 22B, 22C, 23, 23A, 23B, 24, 24B, 26D, 50 or 51 of chapter 265 or sections 3 or 35A of chapter 272 and (iv) kidnapping in violation of the third paragraph of section 26 of chapter 265.

“Client employers”, a business entity, regardless of its form, that obtains or is provided workers to perform labor or services within its usual course of business from a labor contractor, which includes a staffing agency as defined by section 159C of chapter 149.

''Contract workers'', individuals who perform services for an employer but are not considered employees under section 148B of chapter 149 of the General Laws, including individuals who are contracted by client employers.

''Domestic violence'', abuse against a contract worker by: (i) a current or former spouse of the contract worker; (ii) a person with whom the contract worker shares a child in common; (iii) a person who is cohabitating with or has cohabitated with the contract worker; (iv) a person who is related by blood or marriage to the contract worker; or (v) a person with whom the contract worker has or had a dating or engagement relationship.

(b) An employer shall permit a contract worker to take up to 15 days of leave from work in any 12 month period if:

(i) the contract worker is a victim of abusive behavior; and

(ii) the contract worker is using the leave from work to: seek or obtain medical attention, counseling, victim services or legal assistance; secure housing; obtain a protective order from a court; appear in court or before a grand jury; meet with a district attorney or other law enforcement official; or attend child custody proceedings or address other issues directly related to the abusive behavior against the contract worker.

The employer shall have sole discretion to determine whether any leave taken under this section shall be paid or unpaid.

(c) Except in cases of imminent danger to the health or safety of a contract worker, a contract worker seeking leave from work under this section shall provide appropriate advance notice of the leave to the employer as required by the employer's leave policy.

If there is a threat of imminent danger to the health or safety of a contract worker, the contract worker shall not be required to provide advanced notice of leave; provided, however, that the contract worker shall notify the employer within 3 workdays that the leave was taken or is being taken under this section. Such notification may be communicated to the employer by the contract worker, a family member of the contract worker or the contract worker's counselor, social worker, health care worker, member of the clergy, shelter worker, legal advocate or other professional who has assisted the contract worker in addressing the effects of the abusive behavior on the contract worker.

If an unscheduled absence occurs, an employer shall not take any negative action against the contract worker if the contract worker, within 30 days from the unauthorized absence or within 30 days from the last unauthorized absence in the instance of consecutive days of unauthorized absences, provides any of the documentation described in paragraphs (1) to (7), inclusive, of subsection (d).

(d) An employer may require a contract worker to provide documentation evidencing that the contract worker has been a victim of abusive behavior and that the leave taken is consistent with the conditions of clauses (i) and (ii), inclusive, of subsection (b); provided, however, that an employer shall not require a contract worker to show evidence of an arrest, conviction or other law enforcement documentation for such abusive behavior. A contract worker shall provide such documentation to the employer within a reasonable period after the employer requests documentation relative to the contract worker's absence. A contract worker shall satisfy this documentation requirement by providing any 1 of the following documents to the employer.

(1) A protective order, order of equitable relief or other documentation issued by a court of competent jurisdiction as a result of abusive behavior against the contract worker.

(2) A document under the letterhead of the court, provider or public agency which the contract worker attended for the purposes of acquiring assistance as it relates to the abusive behavior against the contract worker.

(3) A police report or statement of a victim or witness provided to police, including a police incident report, documenting the abusive behavior complained of by the contract worker.

(4) Documentation that the perpetrator of the abusive behavior against the contract worker has: admitted to sufficient facts to support a finding of guilt of abusive behavior; or has been convicted of, or has been adjudicated a juvenile delinquent by reason of, any offense constituting abusive behavior and which is related to the abusive behavior that necessitated the leave under this section.

(5) Medical documentation of treatment as a result of the abusive behavior complained of by the contract worker.

(6) A sworn statement, signed under the penalties of perjury, provided by a counselor, social worker, health care worker, member of the clergy, shelter worker, legal advocate or other professional who has assisted the contract worker in addressing the effects of the abusive behavior.

(7) A sworn statement, signed under the penalties of perjury, from the contract worker attesting that the contract worker has been the victim of abusive behavior. Any documentation provided to an employer under this section may be maintained by the employer in the contract worker’s employment record but only for as long as required for the employer to make a determination as to whether the contract worker is eligible for leave under this section.

(e) All information related to the contract worker’s leave under this section shall be kept confidential by the employer and shall not be disclosed, except to the extent that disclosure is:

(i) requested or consented to, in writing, by the contract worker;

(ii) ordered to be released by a court of competent jurisdiction;

(iii) otherwise required by applicable federal or state law;

(iv) required in the course of an investigation authorized by law enforcement, including, but not limited to, an investigation by the attorney general; or

(v) necessary to protect the safety of the contract worker or others employed at the workplace.

(f) Any contract worker seeking leave under this section shall exhaust all annual or vacation leave, personal leave and sick leave available to the contract worker, prior to requesting or taking leave under this section, unless the employer waives this requirement.

(g) No employer shall coerce, interfere with, restrain or deny the exercise of, or any attempt to exercise, any rights provided under this section or to make leave requested or taken hereunder contingent upon whether or not the victim maintains contact with the alleged abuser.

(h) No employer shall discharge or in any other manner discriminate against a contract worker for exercising the contract worker’s rights under this section. The taking of leave under this section shall not result in the loss of any employment benefit accrued prior to the date on which the leave taken under this section commenced. Upon the contract worker’s return from such leave, the contract worker shall be entitled to restoration to the contract worker’s original job or to an equivalent position.

(i) The attorney general shall enforce this section and may seek injunctive relief or other equitable relief to enforce this section.

(j) Employers shall notify each contract worker of the rights and responsibilities provided by this section including those related to notification requirements and confidentiality.

(k) This section shall not be construed to exempt an employer from complying with chapter 258B, section 14B of chapter 268 or any other general or special law or to limit the rights of any contract worker under said chapter 258B, said section 14B of chapter 268 or any other general or special law.

(l) Any benefit received from this section shall not be considered relevant in any criminal or civil proceeding as it relates to the alleged abuse unless, after a hearing, a justice of the district, superior or probate court determines that such benefit is relevant to the allegations.”

SENATE . . . . . . . . . . . . . . No. 2902

The Commonwealth of Massachusetts

_______________

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

_______________

by adding the following sections:-

“SECTION XX. Section 1A of chapter 263 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by striking out, in line 3, the word “felony” and inserting in place thereof the following word:- crime.