An Act relative to criminal justice reform includes a number of changes to the way our criminal justice system treats young adults and juveniles. These changes include reforms targeting developmentally appropriate treatment for young adults in the criminal justice system, combating the school to prison pipeline, promoting humane conditions of detention for juveniles, putting in place task forces to develop juvenile justice policy further, and protecting the privacy of juvenile and young adult criminal records.
Many of these changes were developed and promoted by juvenile justice reform advocates in light of a recognition that the brains of children and young people are still developing and that this reality calls for a developmentally appropriate response to their unlawful behavior by our criminal justice system. Many reforms promoted by juvenile advocates stem from the work of the MacArthur Foundation and their research distinguishing the adolescent brain from the adult brain.
I. Targeting developmentally appropriate treatment for young adults in the criminal justice system
The criminal justice reform legislation narrows the category of young people who will be subject to the juvenile court system. It raises the age of juvenile court jurisdiction at the lower end from age 7 to age 12 while specifying that violations of municipal ordinances or by-laws or low-level first offense misdemeanors shall not lead to a designation as a “delinquent child.” These changes mean that a smaller number of incidents resulting from children’s unlawful or problematic behavior will result in a response from the juvenile justice system. Instead, the response will come from the private domain or from state services outside of the juvenile justice system, when warranted.
The legislation also provides an explicit mechanism for pre-arraignment diversion of a juvenile by the juvenile court. It would allow the juvenile court to divert a child to a program prior to arraignment following an assessment by the Massachusetts Probation Service or by a program, or following a determination that sufficient information is available establishing the appropriateness of diversion to a program.
The criminal justice reform package makes clear that juveniles are eligible for community-based restorative justice programs, which are defined under the legislation as voluntary programs established on restorative justice principles that engage parties to a crime or members of the community in order to develop a plan of repair that addresses the needs of the parties and the community.
The law authorizes the creation of young adult units and correctional officers within our houses of correction and prisons to work with young adults ages 18-24 and the designation of young adult probation officers to work with young adults ages 18-24.
These provisions acknowledge the benefit in responding in a developmentally appropriate and different way to young people involved in our criminal justice system. With their brains still developing, through at least the age of 25, they are particularly impressionable, and the opportunity to make a difference- for good or for ill- is profound.
II. Combating the school-to-prison pipeline
For years, the legislature has received testimony that, too often, nonviolent and verbal student misconduct in our elementary and secondary schools gets referred to the criminal justice system, particularly for students of color and students with disabilities. One of the most problematic statutory offenses that facilitated this school-to-prison pipeline, advocates for children told the legislature, was the offense of “disturbing a school assembly,” for which a child could be and were arrested and incarcerated. A 2012 report by the ACLU and Citizens for Juvenile Justice, Arrested Futures: The Criminalization of School Discipline in Massachusetts’ Three Largest School Districts, highlighted this practice in three urban school districts in Massachusetts. At the same time, the legislature heard from law enforcement that the statutory offense of disturbing a school assembly provided a tool in law enforcement’s toolbox and warned that legislatively removing that tool could force police officers to arrest students for more serious offenses, like assault.
The new law makes clear that juveniles cannot be adjudicated delinquent for disturbing a school assembly or for disorderly conduct in school. It also requires police departments who employ school resource officers to develop memoranda of understanding with the school district defining their role in a way that limits the criminalization of behavior better handled through school disciplinary measures. The language ultimately adopted around the memoranda of understanding was the product of collaboration between child advocates and law enforcement.
III. Promoting humane conditions of detention and procedural protections for juveniles
An Act relative to criminal justice reform rewrites the juvenile lockup statute to require DCF to be notified of the arrest of a child within its care and custody. It also codifies existing juvenile court policy preventing restraints and shackling from being used in juvenile court proceedings, unless the justice presiding makes specific findings on the record as to why they are necessary. The new law prohibits the following: incarceration of juveniles with adults, detention of juveniles not charged with any offense, incarceration of a juvenile charged with an offense that would not be criminal if committed by an adult (except for those held in accordance with the interstate compact on juveniles), and detention of a juvenile based on an allegation the juvenile was dependent, neglected, or abused. Further, it codifies the prohibition on involuntary room confinement in Department of Youth Services facilities.
The new law also codifies certain procedural protections for juveniles. It codifies the Supreme Judicial Court ruling that a prisoner serving a life sentence for an offense committed before reaching the age of 18 has the right to counsel at parole hearings and the right to funds for experts.
It also ensures that no person under the age of 18 is assessed an indigency counsel fee. While it would have been ideal from a justice perspective to repeal the counsel fee for all individuals the courts find indigent, the fiscal reality meant the legislature was able to remove this fee for juveniles only.
The new law makes parent-child privilege reciprocal, preventing a parent from testifying against the parent’s minor child in criminal proceedings, in addition to preventing a child from testifying against his or her parent in such a proceeding, provided the victim is not a family member and does not reside in the family household. This change was designed to encourage children to go to their parents when they find themselves in (legal) trouble without fear that what they tell their parents will be used against them.
IV. Putting in place task forces to develop additional juvenile justice policies
The legislation creates a task force to study gender-responsive and trauma-informed approaches to treatment services for juveniles and youthful offenders in the juvenile justice system. The new law also creates a juvenile justice policy and data board, which is tasked with evaluating “policies and procedures related to the juvenile justice system,” examining “the feasibility of the child advocate collecting and disseminating data regarding juvenile contact with criminal justice agencies,” and studying “the implementation of any statutory changes to the juvenile justice system.” The legislation also created a 20-person task force charged with the significant undertaking of examining and studying “the treatment and impact of individuals ages 18 to 24 in the court system and correctional system.”
V. Protecting the privacy of juvenile and young adult criminal records
The criminal justice reform legislation prevents youthful offender offenses tried in juvenile court from becoming a part of that person’s adult criminal record. It also prevents offenses that do not get arraigned from ending up as record entries for both adults and juveniles. It creates a resource booklet to be given to juvenile offenders upon release regarding their CORI rights. It requires juvenile case disposition information to be transmitted to the FBI simultaneously with an order to seal such information. This requirement will prevent juvenile record information from being disseminated to employers like school districts who conduct a national fingerprint-based background check. The legislation also requires public daily police logs to remove entries concerning juvenile arrests. It also allows for limited expungement of juvenile and young adult (up to the age of 21) records.
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