The House is taking up a major criminal justice reform bill. Here is a section-by-section summary of the current bill. It is still subject to amendment during floor debate.
LEGISLATIVE SUMMARY: H. 4011 AN ACT RELATIVE TO CRIMINAL JUSTICE REFORM
An Act relative to criminal justice reform builds upon the gains made in the legislation implementing the recommendations of the Council of State Governments. This legislation implements important reforms in the criminal justice system.
This legislation raises the minimum age of criminal responsibility from seven to ten.
It decriminalizes first offense misdemeanors for which the punishment is a fine or imprisonment for not more than six months, including disrupting a school assembly.
It also eliminates license revocation as a penalty for juveniles and adults, and expands Good Samaritan protections for alcohol incapacitation.
This bill establishes a Juvenile Justice Policy and Data Commission to analyze and report on impacts of legislation, diversion, and programs within the juvenile justice system. These reporting requirements will also make the state eligible for additional federal funding.
It also establishes a Childhood Trauma Task Force to study and recommend gender responsive and trauma-informed approaches to treatment of juveniles in the juvenile justice system.
DIVERSION AND RESTORATIVE JUSTICE
Currently, district court diversion programs are only available to defendants up to the age of 22. This legislation expands district court diversion by removing the age restriction.
This legislation requires district attorneys to create pre-arraignment diversion programs for active service members, veterans, and individuals with substance abuse disorders and mental illness. Diverting these groups of individuals prior to arraignment will prevent the creation of a criminal record and provide them with more appropriate services and programs.
This bill establishes restorative justice as a voluntary pre-arraignment program available to adults and juveniles to help victims and offenders.
This legislation establishes that bail should not be set at an amount higher than what would reasonably assure the appearance of the person before the court and requires that a person’s financial resources be taken into account when determining bail.
Bail may be authorized at a higher amount than the person can afford if neither alternative nonfinancial conditions, nor an affordable amount, would adequately assure the person’s appearance.
If bail is set at an amount that is likely to lead to the long term pre-trial detention of the person, findings and a statement must be recorded explaining why nonfinancial conditions or an affordable amount would not assure the persons appearance at trial.
This legislation creates expungement for the first time in Massachusetts; currently records can only be sealed. This bill establishes a process for expunging certain juvenile and criminal records for young adults (18-21), and permits the court to expunge records in cases where there was fraud upon the court or where the offense is no longer a crime, including marijuana.
This bill prevents third party data mining companies from disseminating expunged records and directs the commissioner of probation to request the FBI and DOJ to seal or expunge a record.
This legislation builds upon the CORI reforms made in 2010. It reduces the wait time to seal a conviction from 10 years to 7 years for a felony, and from 5 years to 3 years for a misdemeanor. It also allows a conviction for resisting arrest to be sealed.
This bill expands the ability of an applicant with a sealed record to be able to answer “no record” on housing applications and creates an appeal process for applicants who have been denied a professional license due to a sealed record of a conviction.
It also establishes protections for businesses and landlords who shall be presumed to have no notice or ability to know about criminal records that have been sealed or expunged.
This legislation eliminates mandatory and statutory minimum sentences for certain low level drug offenses that do not involve trafficking or minors.
Mandatory and Statutory Minimums
- First offense Dist/Poss w/ intent Cocaine 1 year minimum
- First offense Dist/Poss w/ intent Meth 1 year minimum
- First offense Dist/Poss w/ intent Phencyclidine 1 year minimum
- Sec./Subs. Dist/Poss w/ intent Class C 1.5 year minimum
- Sec./Subs. Dist/Poss w/ intent Class B 2 year minimum
- Sec./Subs. Dist/Poss w/ intent Cocaine 3.5 year minimum
- Sec./Subs. Dist/Poss w/ intent Meth 3.5 year minimum
- Sec./Subs. Dist/Poss w/ intent Phencyclidine 3.5 year minimum
- Sec./Subs. Dist/Poss w/ intent Class D 1 year minimum
- Dist/Poss w/ intent drug paraphernalia 1 year minimum
CARFENTANIL AND FENTANYL TRAFFICKING
This legislation adds Carfentanil to Class A and moves Fentanyl from Class B to Class A.
This bill also strengthens the current Fentanyl trafficking law by changing 10 net grams of Fentanyl to 10 grams of a mixture containing Fentanyl, and adding a minimum penalty of 3.5 years.
It creates the strongest law in the nation for trafficking Carfentanil. This legislation establishes a penalty for anyone who knowingly trafficks in Carfentanil in any amount by imprisonment for 3.5 to 20 years.
This legislation creates comprehensive data collection initiatives to evaluate policy changes in this bill and in the Council of State Governments legislation. This includes CSG recommended data collection and reporting reform that will allow tremendous improvements in the ability to analyze statewide trends and outcomes in the criminal justice system.
National Incident-Based Reporting System (NIBRS)
The House language requires all arresting agencies to adopt NIBRS, which standardizes the information collected on all arrests. Uniform implementation of this state-wide system will help provide information on how laws intended to address public safety are being implemented and how effective they are.
Sheriffs Inmate Management System (SIMS)
The Sheriffs are currently implementing a universal data collection system (SIMS) in conjunction with EOPSS. This legislation requires the inclusion of a series of data fields proposed by CSG to adequately record and report information on all HOC and county jail populations.
Probation Central File Number (PCF)
Everyone who is arraigned in Massachusetts receives a Probation Central File Number. The House has adopted the strong recommendation of CSG that all subsequent criminal justice agencies that touch or have custody of an individual be required to enter the PCF number as a required data field upon the individual’s transfer to their custody.
Reporting requirements for Segregation and Medical Parole
In addition, this legislation also requires regular and detailed reporting from all correctional facilities on their use of disciplinary and administrative segregation, as well as reporting requirements on the newly-created option of medical parole.
This legislation increases the felony threshold for the following crimes: larceny, misuse of a credit card, fraudulent use of a credit card, receiving stolen goods, and malicious destruction of property, from $250 to $750, and increases penalties proportionately
FINES AND FEES
This legislation establishes a uniform standard by which certain fines and fees may be reducible or waivable upon a showing that a “substantial financial hardship” would result from the imposition of the fees.
This legislation also increases the daily incarceration credit from $30/day to $90/day in order to reduce the time spent in confinement for not paying fines or expenses.
It adds a six month grace period after release from custody during which a person shall not be assessed parole fees or supervised or administrative probation fees if that person can show a substantial financial hardship.
This legislation sets limits on the length of time an inmate can be held in solitary confinement without review for disciplinary or administrative reasons.
This bill precludes the use of segregation for pregnant women and juveniles
It creates a segregation review board to review and approve the extraordinary circumstance in which an inmate is held in solitary confinement longer than the allowed upon limits in the bill.
It also creates a segregation oversight committee to collect data on the use of segregation and its impact on inmates, violence, recidivism, and cost. The committee will report this data annually to the legislature.
Under current Massachusetts law, there is no specific mechanism to release a terminally ill or incapacitated inmate from incarceration for medical reasons. This legislation establishes an independent medical parole board and a process through which an inmate with a terminal illness or permanent incapacitation, an inmate’s family, an inmate’s medical provider, or institutional staff may initiate a petition to have the inmate medically paroled.
This legislation creates a penalty of a fine of not more than $250,000 and optional debarment of up to 10 years for a corporation or other business organization that is convicted of manslaughter.
This legislation creates the crime of solicitation that is tied to the severity of the underlying crime.
INCREASED OUI PENALTIES
The existing OUI laws provide for specified penalties up to a fifth offense. This legislation updates the OUI laws to include increasing penalties for a sixth, seventh, eighth, and ninth or subsequent offense. This allows for enhanced punishments for the most egregious and dangerous re-offenders.
Under current law, an adult convicted of a felony and a juvenile adjudicated as a youthful offender for committing an offense punishable by state prison time shall submit a DNA sample to the state police within one year of conviction/adjudication or release from incarceration whichever occurs first.
This legislation removes the one year waiting period to submit a DNA sample and requires the sample to be collected forthwith, or upon intake to a correctional facility.
Special Commission to Study the Ability of a Defendant to Pay Fines and Fees
This legislation establishes a commission to study the ability of a defendant to pay fines and fees, including the establishment of uniform definitions and standards for indigency and “substantial financial hardship” and the feasibility of establishing a portal for the Officer of the Commissioner of Probation to access DOR tax returns when determining whether a person would suffer a substantial financial hardship if ordered to pay fines or fees.
Special Commission to Investigate and Study the Massachusetts State Police Crime Lab
This legislation establishes a commission to study and make recommendations on the operation and management of the state crime lab, including evaluating the capability of the crime lab and its ability to comply with the General Laws, establishing professional qualifications necessary to serve as the head of the crime lab, determining if the crime lab should be transferred to another executive agency or have an independent executive director, and determining proper term limits and reappointment standards for the head of the crime lab.