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Governor Baker Signs Sweeping Criminal Justice Reform Bill into Law

signature-sticker-1239475-1-300x226According to a recent news article in Commonwealth Magazine, Governor Charlie Baker signed a sweeping criminal justice reform bill into law on April 13, 2018.  The bill had been passed by both the House and Senate earlier this month.

The major provisions of the new law are as follows:

Decriminalizes minor offenses

  • Civil infractions, first offense misdemeanors with penalties under 6 months, and disruptive behavior in school cannot be the subject of delinquency findings;
  • Repeals offense of being the presence of heroin;
  • Expands scope of good Samaritan protections to youth use of alcohol and to probation violations;
  • Specifies that use of prescribed drugs and medical marijuana shall not constitute a probation violation.

Diverts minor offenses away from prosecution/incarceration

  • Creates mechanism for judicial diversion of juveniles for less serious offenses;
  • Improves and expands mechanism for district court diversion of adults;
  • Eliminates defunct requirement for probation certification of diversion programs;
  • Eliminates age restrictions on diversion;
  • Excludes serious offenses from diversion;
  • Assures that victims are heard in diversion decisions;
  • Creates legal/administrative framework to expand use of restorative justice programs for diversion of both juveniles and adults;
  • Requires judges to make written findings before imposing a sentence of incarceration of primary caretakers of children;
  • Improves drug diversion by increasing range of professionals who can make findings of dependence;
  • Preserves powers of District Attorneys to divert cases.

Reforms Bail to reduce unnecessary incarceration

  • Codifies main holding of the Brangan case;
  • Requires that if judge needs to set unaffordable bail to assure return, the judge make written findings that the Commonwealth’s interest in assuring return outweighs the harm of detention to the individual and their family;
  • Allows judges to use community corrections facilities for pre-trial release;
  • Creates pre-trial services unit to remind defendants of upcoming court dates using modern messaging approaches;
  • Creates commission on bail to monitor change and suggest improvements.

Repeals/limits mandatory minimums for non-opiate, non-weight retail drug offenses

  • Limits applicability of school zone law to cases involving guns or minors;
  • Eliminates mandatory sentence for first offense cocaine/PCP/meth;
  • Eliminates mandatory sentence for second offense class B (moving fentanyl to class A), class C, and class D;
  • Eliminates mandatory sentence for sales of drug paraphernalia.

Strengthens minimum mandatories for opiate trafficking

  • Makes all federally scheduled opioids class A drugs in Massachusetts;
  • Includes fentanyl, carfentanil and emerging synthetic opiates in trafficking weight ladder, including mixtures containing these substances;
  • Modifies fentanyl trafficking statute so that it applies to mixtures;
  • Adds minimum mandatory of 3 years to fentanyl in the trafficking weight ladder;
  • Adds a minimum mandatory applicable to mixtures of any weight containing carfentanil in any quantity but, Commonwealth must prove knowledge that the mixture contained carfentanil.

Strengthens Protections for Public Safety

  • Strengthens penalties for intimidation of witnesses;
  • Broadens eligibility for witness protection programs;
  • Strengthens penalties for solicitation of murder and other penalties;
  • Allows district court prosecution of conspiracy, solicitation, and intimidation;
  • Strengthens penalties for high repetition of OUI offenses;
  • Broadens definition of inhalants that may result in OUI prosecution;
  • Strengthens penalties for reckless homicide by motor vehicle;
  • Creates new crime of assault and battery on police officer causing serious injury;
  • Creates new crime of unlawful possession of credit card scanner;
  • Expands crime of providing false information to police officer;
  • Discloses findings of not guilty by reason of insanity in the same way as convictions for general employers and landlords;
  • Strengthens DNA collection procedures from serious offenders;
  • Mandates creation of police training for bias-reduction and de-escalation.

Reduces solitary confinement

  • Repeals solitary confinement concept (“isolation”);
  • Requires that prisoners confined to restrictive housing have “access to vocational, educational and rehabilitative programs to the maximum extent possible consistent with the safety and security of the unit;”
  • Requires 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;
  • Assures that correctional officers staffing restrictive housing facilities have appropriate training;
  • Protects LGBTQ prisoners from arbitrary use of restrictive housing;
  • Assures that those segregated from other inmates for their own safety are placed in conditions comparable to general population;
  • Creates a balanced oversight board to report on conditions in restrictive housing and progress in reducing restrictive housing.

Generally improves prison conditions

  • Assures that transgender prisoners are housed with prisoners of the same gender identity unless it would endanger the prisoner or other prisoners;
  • Requires that all prisoners without high school diplomas have access to education programming;
  • Requires that all prisoners are assessed for substance use disorders (but do not require medically assisted treatment);
  • Preserves inmate access to regular in-person visitation – video visits permitted, but not in lieu of in person visits;
  • Expressly authorizes creation of special prison units for emerging adults (18 to 24);
  • Creates commission to study LGBTQ prison health;
  • Creates task force to study correctional officer suicides;
  • Studies prison long distance phone costs.

Releases prisoners who are permanently incapacitated and pose no safety risk

  • 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 the inmate is incapacitated and the medical release plan is appropriate;
  • The parole board will supervise the released prisoners and re-incarcerate them if they are recovering contrary to expectations;
  • Judicial review is only by certiorari.

Makes it easier for people to get back on their feet

  • Reduces fees imposed on defendants;
  • No parole fee for the first year after release;
  • No probation fee for the first six months after release;
  • Makes more fees waivable and standardize waiver language across fees;
  • Streamlines waiver process for probation fees;
  • Improves 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;
  • Assures that when state criminal records are sealed or expunged, national fingerprint records are also sealed or expunged;
  • Requires that offense based tracking number (OBTN) associated with a set of fingerprints taken at arrest is recorded in court files;
  • Assures that when cases are disposed of, the disposition is transmitted to the national system (using the OBTN);
  • Similarly assures that sealing and expungement orders are transmitted for parallel action in the national system;
  • Makes criminal records more private;
  • Assures that cases dismissed before arraignment do not appear on criminal records;
  • Assures that youthful offender cases tried in juvenile court are treated as juvenile instead of adult CORI;
  • Accelerates sealing availability from 10 years to 7 years for felonies and from 5 years to 3 years for misdemeanors;
  • Fixes the glitch that causes resisting arrest charges to be non-sealable;
  • Allows expungement of cases involving errors of justice and non-serious cases up to age 21 (both juveniles and young adults);
  • Excludes juvenile arrests from public police log and expunge young adult police logs if the court case is expunged;
  • Raises threshold that defines felony larceny from $250 to $1200;
  • Requires that licensing authorities disclose in advance offenses that may be disqualifying;
  • Confirms that sealed records need not be mentioned in applications for housing or professional licensure;
  • Prevents employers from inquiring about sealed or expunged cases;
  • Reduces entanglements with the registry of motor vehicles;
  • No longer suspends licenses upon court defaults and conviction of tagging or vandalism;
  • Assures that parents will not lose their license for non-payment of child support if the warning notice is going to a bad address.

Takes better care of juveniles and young adults

  • Raises minimum age of juvenile court jurisdiction to 12;
  • Does not raise age of criminal adulthood to 19, but expressly authorize creation of young adult units within Houses of Correction (age 18-24);
  • Expressly authorizes designation of youth probation officers;
  • Creates 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;”
  • Minimizes harsh detention of minors;
  • Assures swift parental notification upon arrest;
  • Limits shackling in court room settings;
  • Prohibits housing of juveniles in contact with adults;
  • Limits the use of room confinement as a disciplinary measure for juveniles;
  • Protects the parent-child relationship by disqualifying parents and children from being called to testify against each other in court;
  • Creates a juvenile justice policy and data board to oversee treatment of juveniles;
  • Creates task force on trauma-informed juvenile care;
  • Provides access to counsel at parole hearings for juveniles sentenced to life.

Improves transparency of the criminal justice system

  • Mandates 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;
  • Requires the Secretary of Public Safety to lead improvement of adult criminal justice data systems, creates adult criminal justice systems board.

Better protects women in the criminal justice system

  • Mandates better tracking and retention of rape kits;
  • Allows vacatur of crimes committed by victims of human trafficking;
  • Creates commission on justice involved women;
  • Mentioned above: Requirement to make written findings before incarcerating primary caretakers.

Reduces and remedies errors of justice

  • Empowers stronger oversight of forensic labs and techniques;
  • Increases access to compensation for wrongful convictions.

This legislation has the potential to impact a number of individuals charged with criminal offenses.  If you or a loved one needs assistance in determining how and/or whether these changes may impact you, you will need the help of an experienced and skilled attorney.  Attorney Daniel Cappetta is such an attorney – contact him for a free consultation today.