Inventory of Senate Ways and Means Changes to Criminal Justice Reform Bill

The Senate Ways and Means version of the criminal justice reform bill includes a number of improvements, both technical and substantive.

The most important substantive changes are:

1. Strengthens the bail reform sections in a number of ways. The changes are intended to make it more likely that non-dangerous defendants will be released on no bail or low bail and also that dangerous defendants will be held. The changes also include language to assure that conditions of release will not be too complex or onerous.
2. Clarifies language in the solitary confinement sections to address questions raised about how the language would handle seriously mentally ill defendants and makes other adjustments requested by prisoner advocates.
3. Narrows the age gaps permitted in the close-age exceptions to the statutory rape law.
4. Empowers the Commissioner of Corrections, rather than the Parole Board to make medical release decisions.

Please see the more detailed inventory below.

Inventory of substantive changes in Senate 2185 from Senate 2170

Prepared by Anne Johnson Landry and Ava Callender Concepción

• Requires the state police to transmit juvenile case disposition information to the FBI and requires the state police simultaneously to transmit an order to seal such information to the FBI.
• Updates the language classifying fentanyl and like synthetic opioids as Class A drugs by naming other substances similar to fentanyl and by referencing the appropriate federal schedules.
• Removes the mandatory minimum sentence (albeit, not a “true mandatory”) in Section 32C of Chapter 94C.
• Requires juvenile complaints to be accompanied by fingerprint-based identification if the juvenile was arrested.
• Removes the requirement that Probation be involved in diversion decisions.
• Updates the statute governing the lockup of juveniles following an arrest. Requires that DCF be notified of the arrest of a child within its custody and care.
• Limits the definition of “disciplinary restrictive housing” to state correctional facilities.
• Excludes mental health watches from the definition of “restrictive housing.”
• Removes the definition of “disciplinary detention” while limiting the restriction of canteen privileges for disciplinary infractions to 10 days in a county correctional facility and 15 days in a state correctional facility.
• Clarifies that the protections currently afforded prisoners with serious mental illness are preserved.
• Removes language allowing prisoners to be placed in restrictive housing because of self-harm.
• Requires that the written statements following a placement review of a prisoner held in restrictive housing for over 60 days include the evidence relied on in addition to the reasons for a decision not to change a prisoner’s placement.
• Assures that data reporting on restrictive housing will not inadvertently reveal the identity of individual prisoners.
• Provides for review of medical parole petitions by the Commissioner of Correction, rather than by the Parole Board. Allows for the district attorney or victim’s family to request a hearing if the prisoner is serving a sentence for murder.
• Allows for cognitive as well as physical incapacitation to constitute permanent incapacitation in a petition for medical parole.
• Reduces the age span by 1 year, compared to the bill reported by the Joint Committee on the Judiciary, in the context of minors under the age of 14 and minors under the age of 12 years of age as it relates to statutory rape.
• Replaces the life imprisonment maximum sentence for witness intimidation in the context of an investigation or prosecution of a crime punishable by life imprisonment or the parole of a person convicted of a crime punishable by life imprisonment with a maximum sentence of 20 years.
• Bail – 276/57
  • Extends the application of the bail definitions section from “sections 57 to 58C, 59” to section 42A and sections 57 to 59 inclusive
  • Moves the definitions for “Bail commissioner” and “Bail magistrate” from section 59 to section 57
  • Permits the use of a separate assessment tool in the case of defendants under the age of criminal majority
  • Requires the superior court clerk to notify the district court clerk holding a defendant’s bail when the defendant has posted bail in the district court and was subsequently arraigned in the superior court for the same offense. At which point, the amount of any bail bond posted by the defendant must be carried over to a bail bond required by the superior court.
• Bail – 276/58
  • Provides that a defendant must consent before pretrial programming participation is imposed as a condition to assure the defendant’s appearance
  • Requires that no financial condition be imposed on a defendant under the age of criminal majority
  • Provides that a defendant must consent before a court imposes participation in a diversion program, an alternative adjudication program, or a drug, mental health, veteran or other treatment court as a condition to assure the defendant’s appearance
  • Provides that a judicial officer cannot consider financial resources when setting any conditions to assure the safety of any other person and the community
  • When setting bail, a judicial officer must state within his findings, in addition to the defendant’s risk of non-appearance being so great that no alternative less restrictive financial or nonfinancial conditions will suffice, that:
    • it is likely that the defendant will be incarcerated if convicted on the charged offense,
    • the judicial officer considered the defendant’s financial resources and personal circumstances, and
    • why the commonwealth’s interest in the secured bond amount outweighs any likely adverse impact on the defendant’s employment, education, mental health treatment, substance or alcohol use treatment and primary caretaker responsibilities.
  • Requires that a judicial officer not order the detainment of a defendant under the age of criminal majority unless he finds that:
    • the defendant’s risk of non-appearance is so great that no alternative, less restrictive condition or combination of conditions will suffice to assure the defendant’s presence at future court proceedings, and
    • the defendant is likely to be incarcerated if convicted on the charged offense
  • If a judicial officer concludes that a defendant under the age of criminal majority should be detained, the judicial officer must provide the following analysis:
    • that 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,
    • that it is likely that the defendant will be incarcerated if convicted on the charged offense, and
    • that the judicial officer considered the defendant’s personal circumstances including any likely adverse impact on the defendant’s employment, education, mental health treatment, substance or alcohol use treatment and primary caretaker responsibilities
  • Provides that, when available, the judicial officer who originally set a defendant’s financial condition shall review said defendant’s application for bail reconsideration.
  • Explains that a financial condition set by a judge may only be considered by a judge
• Bail – 276/58A
  • Removes the risk of non-appearance from 58A hearings
  • Imposes the same standard as adults under 58A to defendants under the age of criminal majority
• Bail – 276/58B
  • Requires that a judge enter an order of revocation and detention if there is probable cause to believe the defendant committed any crime as opposed to only dangerous crimes
  • Permits a judge to use discretion in revoking bail if he finds that:
    • there is probable cause to believe that the defendant has committed a crime while on release or there is clear and convincing evidence that the defendant has violated any condition of release other than committing a crime, and
    • the defendant is unlikely to abide by any condition or combination of conditions of release.
  • Provides that, absent good cause, a defendant under the age of criminal majority detained pursuant to 58B cannot be held for more than 60 days
  • Clarifies that a defendant is entitled to a de novo review of the detention order when his case has not been brought to trial or otherwise resolved by the end of that period prescribed in this section
• Bail – 276/58D
  • Provides that statements made by a defendant during a pretrial services interview are inadmissible in determining if the defendant has violated a condition of probation or pretrial release or a condition of parole
  • Requires that the pretrial services’ annual report be forwarded to the Senate and House chairs of the Joint Committee on the Judiciary
• Bail – 276/58E
  • Removes the requirement that aggregate data concerning pretrial services be made available to the legislature
• BaIL – 276/59
  • Clarifies that failure of a bail commissioner or bail magistrate to appear within the prescribed time does not constitute grounds for dismissal of a defendant’s charges
  • Provides that, when a defendant under the age of criminal majority is detained until the next day court is in session, a bail commissioner or bail magistrate must provide a written finding of fact explaining why no alternative, less restrictive condition or combination of conditions will suffice to assure the defendant’s presence at future court proceedings
• Requires a defendant to prove by a preponderance of the evidence an inability to pay restitution
• Establishes a rebuttable presumption that defendants under the age of criminal majority are indigent for purposes of restitution
• Requires notice to the commissioner of probation before a court can order expungement
• Provides that the court determine by clear and convincing evidence that expungement is in the interest of justice
• Applies minimum mandatory minimum repeals retroactively in the limited sense that currently sentenced inmates will be able to start earning good time
• Adds a 3 year restriction to the considerations a court must make before complying with an expungement request