Criminal Justice Reform Act of 2018 Summary

UPDATE: Criminal Justice Reform Bill of 2018 New Crime Bill for Massachusetts

Within the past few weeks, recent legislation has been written that changes the criminal justice system in Massachusetts. The law is lengthy and detailed. I hope and expect to post more on the expansive law in the future. Until then, a summary of the many changes below.

Criminal Justice Reform Act: Summary of Decriminalization Portion of Act

  • Minor offenses for juveniles – civil infractions and first offense misdemeanors with penalties under 6 months – cannot be the subject of delinquency findings.
  • Disruptive behavior in school (disturbing assembly or disorderly conduct) cannot be the subject of delinquency findings (note that more serious behavior can still be prosecuted).
  • Repeal offense of being in the presence of heroin.
  • Expand scope of Good Samaritan protections to youth alcohol violations and to probation violations.
  • Specify that use of prescribed drugs and medical marijuana shall not constitute a probation violation.
  • Repeal/Limit Mandatory Minimums for Non-Opiate, Non-Weight Retail Drug Offenses
  • Limit applicability of school zone law to cases involving guns or minors.
  • Eliminate mandatory minimum for second offense class B (move fentanyl to class A).
  • Eliminate mandatory minimum for first offense cocaine/PCP/meth.
  • Eliminate mandatory minimum for second offense class cocaine/PCP/meth.
  • Eliminate mandatory minimum for second offense class C.
  • Eliminate mandatory minimum for second offense class D.
  • Eliminate mandatory minimum for sales of drug paraphernalia.

Criminal Justice Reform Act: Create mechanism for judicial diversion of juveniles for less serious offenses.

  • Improve and expand mechanism for District Court diversion of adults.
  • Eliminate defunct requirement for probation certification of diversion programs.
  • Eliminate age restrictions on diversion.
  • Exclude serious offenses from diversion.
  • Assure that victims are heard in diversion decisions.
  • Create legal/administrative framework to expand use of restorative justice programs for diversion of both juveniles and adults.
  • Require judges to make written findings before imposing a sentence of incarceration of primary caretakers of children.
  • Make drug diversion more workable by making it possible for a wider range of professionals to make findings of dependence.
  • Preserve power of District Attorneys to divert cases.

Criminal Justice Reform Act: Reform Bail to Reduce Unnecessary Incarceration

  • Codify main holding of the Brangan decision – judge should consider financial capability of defendant and set bail only as high as needed to assure defendant’s return.
  • Require that if judge needs to set unaffordable bail to assure return, the judge makes written findings that the Commonwealth’s interest in assuring return outweighs the harm of detention to the individual and their family.
  • Allow judges to use community corrections facilities for pre-trial release (consistent with Council on State Government report).
  • Create pre-trial services unit to remind defendants of upcoming court dates using modern messaging approaches, such as email and text.
  • Create commission on bail to monitor change and suggest further improvements.

Criminal Justice Reform Act: Reduce the Use of Solitary Confinement

  • Repeal archaic solitary confinement concept (“isolation”) and define more humane restrictive housing concept.
  • Require that prisoners confined to restrictive housing shall, under regulations to be developed, have “access to vocational, educational and rehabilitative programs to the maximum extent possible consistent with the safety and security of the unit.”
  • Require that prisoners confined to restrictive housing receive regular reviews to see if they are ready to return to general prison population and have an opportunity to participate in those reviews.
  • Assure that correctional officers staffing restrictive housing facilities have appropriate training.
  • Protect LGBTQ prisoners from arbitrary use of restrictive housing.
  • Assure that those segregated from other inmates for their own safety are not placed in restrictive housing, but in conditions comparable to general population.
  • Create a balanced oversight board with access to data, prison facilities, and prisoners to report on conditions in restrictive housing and progress in reducing restrictive housing. Note that the oversight committee will have no authority over individual prisoner confinement decisions.

Criminal Justice Reform Act: Incarceration Amendments

  • Assure that transgender prisoners are housed with prisoners of the same gender identity unless it would endanger the prisoner or other prisoners.
  • Require that all prisoners without high school diplomas have access to education programming.
  • Preserve inmate access to regular in-person visitation – video visits permitted, but not in lieu of in-person visits.
  • Expressly authorize creation of special prison units for emerging adults (ages 18 to 24).
  • Create commission to study LGBTQ prison health.
  • Create task force to study correctional officer suicides.
  • Study prison long distance phone costs.

Criminal Justice Reform Act: Rehabilitation

  • Prisoners who are so debilitated that they do not present a public safety risk may petition their superintendent or sheriff for medical release.
  • The sheriff or superintendent shall make a recommendation to the commissioner of correction.
  • The commissioner of correction will determine whether an inmate is incapacitated and the medical release plan is appropriate.
  • The parole board will supervise released prisoners and re-incarcerate them if they are recovering contrary to expectations.
  • Judicial review is only by certiorari.
  • Measures to Help Prevent the Criminalization of Poverty, Limit Certain Collateral Consequences, and Further Reform CORI
  • Reduce fees imposed on defendants.
  • No parole fee for the first year after release from prison.
  • No probation fee for the first six months after release from prison.
  • Allow more fees to be waived and standardize waiver language across fees.
  • Streamline waiver process for probation fees – no written finding required.
  • Improve procedural protections for people facing incarceration for non-payment of fines and increase rate at which fines are worked off from $30 per day to $90 per day.
  • Assure that when state criminal records are sealed or expunged, national fingerprint records are also sealed or expunged.
  • Require that offense-based tracking number (OBTN) associated with a set of fingerprints taken at arrest is recorded in court files (but not expand scope of fingerprinting).
  • Assure that when cases are disposed of, the disposition is transmitted to the national system (using the OBTN).
  • Similarly assure that sealing and expungement orders are transmitted for parallel action in the national system.
  • Make criminal records more private.
  • Assure that cases dismissed before arraignment do not appear on criminal records.
  • Assure that youthful offender cases tried in juvenile court are treated as juvenile instead of adult CORI.
  • Accelerate sealing availability from 10 years to 7 years for felonies and from 5 years to 3 years for misdemeanors.
  • Fix the glitch that causes resisting arrest charges to be non-sealable.
  • Allow expungement of cases involving errors of justice.
  • Allow expungement of non-serious cases up to age 21 (for both juveniles and young adults).
  • Exclude juvenile arrests from public police log and expunge young adult police logs if the court case is expunged.
  • Raise threshold that defines felony larceny from $250 to $1200, making more cases misdemeanors that can be quickly sealed or expunged (but preserve ability of officers to arrest defendants in cases above $250).
  • Require that licensing authorities disclose in advance offenses that may be disqualifying.
  • Confirm that sealed records need not be mentioned in applications for housing or professional licensure.
  • Prevent employers from inquiring about sealed or expunged cases.
  • Reduce entanglements with the registry of motor vehicles.
  • No longer suspend licenses upon court defaults.
  • No longer suspend licenses upon conviction of tagging or vandalism.
  • Assure that parents will not lose their license for non-payment of child support if the warning notice is sent to a bad address (but do not otherwise limit ability of the DOR to suspend licenses).

Criminal Justice Reform Act: Juvenile Justice Reform

  • Raise minimum age of juvenile court jurisdiction to 12.
  • Does not raise age of criminal adulthood to 19.
  • Expressly authorize creation of young adult units within Houses of Correction (18-24).
    Expressly authorize designation of youth probation officers.
  • Create task force to “to examine and study the treatment and impact of individuals ages 18 to 24 in the court system and correctional system of the commonwealth.
  • Minimize harsh detention of minors (mostly codifying existing good practice).
  • Assure swift parental notification and appropriate handling upon arrest.
  • Limit shackling in court room settings.
  • Prohibit housing of juveniles in contact with adults.
  • Limit the use of room confinement as a disciplinary measure for juveniles.
  • Protect the parent-child relationship by disqualifying parents and children from being called to testify against each other in court (note the prohibition does not apply to domestic situations and does not prevent parents from asking the police for assistance with their children if necessary).
  • Create a juvenile justice policy and data board to oversee and improve treatment of juveniles.
  • Create task force on trauma-informed juvenile care.
  • Provide access to counsel at parole hearings for juveniles sentenced to life.
  • See decriminalization section above for additional measures affecting juveniles.

Criminal Justice Reform Act: Improve Data Collection and Tracking of Racial and Ethnic Statistics

  • Mandate National Incident Based Reporting System for arrests, including racial data. Juvenile justice policy and data board is to drive consolidation of information about juvenile contacts with the system.
  • Require the Secretary of Public Safety to lead improvement of adult criminal justice data systems; create adult criminal justice systems board.
  • Steps to Reduce Wrongful Convictions and Increase Compensation to Persons Wrongfully Convicted
  • Empower stronger oversight of forensic labs and techniques.
  • Increase access to compensation for wrongful convictions.