Ruled Out of Order
CLERK 1
ASSAULT AND BATTERY ATTEMPTING TO DISARM A POLICE OFFICER
Messrs. Morrissey and Donnelly and Ms. Flanagan move to amend the bill, Senate 2210, by adding the following new section:
SECTION 70. Whoever commits an offense set forth in section thirteen D of chapter two hundred and sixty-five of the Massachusetts General Laws where said offense includes the attempt to disarm a police officer in the performance of his duty, shall be punished by imprisonment in the state prison for not more than ten years, or by a fine of not more than one thousand dollars and imprisonment in a jail or house of correction for not more than two and one-half years.
Rejected
CLERK 2
Relative to Sex Offenders
Mr. Brown moves to amend the bill (S.2210) by inserting at the end thereof the following section:-
SECTION XX. Section 178E of Chapter 6 of the General Laws, as so appearing in the 2008 Official Edition, is hereby amended by inserting after paragraph (q) the following new paragraph:-
(r) The board shall maintain accurate records of registered sex offenders born outside of the United States. Said records are to be submitted semi-annually on the first Wednesday in March and the first Wednesday in September to the Federal Bureau of Investigation and Immigration and Customs Enforcement for purposes of verifying immigration status. The board shall submit an annual letter of compliance containing the number of offenders submitted to federal agencies and the number of offenders in violation of immigration laws. Said letter shall be submitted by the board on the first Wednesday in October to the Governor, attorney general, state auditor, the joint committee on the judiciary, the joint committee on public safety and homeland security, and the department of public safety. Said records shall be subject to review at the discretion of the state auditor.
Rejected
CLERK 3
Relative to Sex Offenses 2
Mr. Brown moves to amend the bill (S.2210) in lines 893-897 by striking out the words “for 10 years following their disposition, including termination of supervision, probation or any period of incarceration, or for so long as the offender is under a duty to register in the commonwealth or in any other state where the offender resides or would be under such a duty if residing in the commonwealth, whichever is longer.”
Ruled Out of Order
CLERK 4
Relative to Sex Offender Classification
Mr. Brown moves to amend the bill (S.2210) by inserting at the end thereof the following sections:-
SECTION XX. Paragraph (b) of subsection (2) of section 178K of chapter 6 of the General Laws, is hereby further amended by inserting after the first sentence the following:-
If an offender designated as a level 2 offender was convicted of a sex offense involving a child, such offender shall be given a level 2(a) designation and shall be subject to the level 3 community notification requirements. If an offender designated as a level 2 offender committed any offense other than a sex offense involving a child, such offender shall be given a level 2(b) designation and shall be subject to the requirements of a level 2 offender.
SECTION XX. Said chapter 6 is hereby amended by adding the following section:-
Section 178R. (a) No sex offender designated as a level 2(a) or level 3 offender convicted of a sex offense involving a child shall knowingly establish a home address or intended home address or any other living accommodation within 1000 feet of the property on which any public or private school, licensed day care center, or any other child care facility is located. Nor shall any level 2(a) or level 3 sex offender knowingly establish a home address or intended home address or any other living accommodation within 1000 feet of the property on which the offender’s former victim or victims, or said victim’s immediate family members reside, nor shall such offender knowingly and willfully come within 100 feet of any of the offender’s former victims. Violations of this paragraph shall be punished in accordance with a violation of the conditions of probation or parole.
(b) No sex offender designated as a level 2(a) or level 3 offender convicted of a sex offense involving a child shall knowingly accept employment within 1000 feet of the property on which any public or private school, licensed day care center or any other child care facility is located. No sex offender designated as a level 2(a) or level 3 sex offender shall knowingly accept employment within 1000 feet of the property on which the offender’s former victim or victims, or the victim’s immediate family members reside. Violations of the provisions of this paragraph shall be punished in accordance with a violation of the conditions of probation or parole.
(c) No sex offender designated as a level 2(a) or level 3 offender convicted of a sex offense involving a child shall establish living conditions within, be placed in, or be transferred to any state-owned, operated or funded housing or any facility contracted with the state within 1 ½ miles of the property on which any public or private school, licensed day care center, or any other child care facility is located, or any residence occupied by at least one minor.
Rejected
CLERK 5
Relative to Youthful Offenders
Mr. Brown moves to amend the bill (S.2210) by inserting at the end thereof the following section:-
SECTION XX. . Subsection (e) of section 178E of chapter 6 of the General Laws, shall by amended by striking out the subsection in its entirety.
Rejected
CLERK 6
Relative to the Unsealing of Records
Mr. Brown moves to amend the bill (S.2210) by inserting after section 59 the following section:-
SECTION 59A. Section 100A of chapter 276 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by inserting after the word “court”, in line 69, the following words:- a victim wishing to obtain information on a sex offense, as defined in section 178C of chapter 6, committed against them when said victim was a juvenile at the time of the offense committed by an offender who was an adult at such time.
Rejected
CLERK 7
Trial Lists
Messrs. Baddour and Morrissey moves to amend SB 2210 by inserting the following new section;
SECTION 1: Section 1 of Chapter 278 of the General Laws, as appearing in the 2006 Official Edition, is hereby amended by striking out section 1 and inserting in place thereof the following section:
Section 1. The district attorney in each district shall, in the exercise of his sole responsibility and discretion, determine what criminal cases are to be tried and prioritize the order of those trials, notwithstanding any other statute or rule of court. At the beginning of each monthly court session, the district attorney shall deposit with the clerk, for the inspection of parties, a list of all such cases to be tried at that session. The cases shall be tried in the order of such trial list, unless otherwise agreed by the parties or ordered by the court upon motion of a party and for cause shown. Cases may be added to such list by agreement of the parties or if ordered by the court upon motion of the district attorney or of the defendant.
No criminal case shall proceed to trial unless the district attorney so moves; the court shall have no authority to order a case to trial over the objection of the district attorney or upon his refusal to move for trial. No case may be dismissed because of the district attorney's failure or refusal to move for trial. No case shall be dismissed on grounds of timeliness of prosecution except upon a judicial finding that the Commonwealth has violated the defendant’s right to a speedy trial under the Sixth Amendment to the United State Constitution, art. XI of the Declaration of Rights of the Massachusetts Constitution, or Rule 36 (b) of the Massachusetts Rules of Criminal Procedure.
Ruled Out of Order
CLERK 8
Sentencing
Messrs. Baddour, Tarr and Morrissey moves to amend the bill (Senate, No. 2210) by inserting after section 62 the following section:-
SECTION 62A. Chapter 279 of the General Laws, as so appearing, is hereby amended by striking out section 25 and inserting in place thereof the following section:-
Section 25. (a) Whoever has been twice convicted in this or another state or by the Federal government, or once in this and once or more in another state or by the Federal government, of a felony punishable by 15 years or more in prison, and does not show that he has been pardoned for either crime on the ground that he was innocent, shall, upon conviction of any felony, either in the Boston Municipal Court, District Court, or Superior Court be considered an habitual criminal and be punished by imprisonment for the maximum term provided by law as a penalty for the felony for which he is then to be sentenced.
(b) A prosecution commenced under this section shall not be continued without a finding or placed on file and all offenders sentenced under this section shall be ineligible for probation.
(c) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction by either certified attested copies of original court papers, or certified attested copies of the defendant's biographical and informational data from records of the department of probation, any jail or house of correction or the department of correction showing that defendant served a sentence or probationary term for the offense in question, shall be prima facie evidence that the defendant before the court has been convicted previously by a court of the commonwealth or any other jurisdiction. Such documentation shall be self-authenticating and admissible, after the commonwealth has established the defendant's guilt on the primary offense, as evidence in any court of the commonwealth to prove the defendant's commission of any prior conviction described therein. The commonwealth shall not be required to introduce any additional corroborating evidence or live witness testimony to establish the validity of such prior conviction.
ADOPTED
CLERK 9
Dangerousness Hearing
Mr. Baddour moves to amend the bill (Senate, No. 2210) by inserting after section 51 the following section:-
“SECTION 51A. Section 58A of chapter 276 of the General Laws, as so appearing, is hereby amended by striking out subsection (1) and inserting in place thereof the following subsection:-
(1) The commonwealth may move, based on dangerousness, for an order of pretrial detention or release on conditions for a felony offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person of another, or any other felony that by its nature involves a substantial risk that physical force against the person of another may result, including the crime of burglary and arson whether or not a person has been placed at risk thereof, or a violation of an order pursuant to section18, 34B or 34C of chapter 208, section 32 of chapter 209, section 3, 4 or 5 of chapter 209 A, or section 15 or 20 of chapter 209C, or arrested and charged with a misdemeanor or felony involving abuse as defined in section 1 of said chapter 209A or while an order of protection issued under said chapter 209A was in effect against said person, an offense for which a mandatory minimum term of 3 years or more is prescribed in chapter 94C, arrested and charged with a violation of section 13 of chapter 268 or a third or subsequent conviction for a violation of section 24 of chapter 90, or arrested and charged with a violation of paragraph (a) or (c) of section 10 of chapter 269, or arrested and charged with a violation of section 10G of chapter 269.
ADOPTED
Redraft CLERK 9.1 FURTHER
Dangerousness statute
Messrs. Montigny, Baddour, Timilty, Panagiotakos, Brewer, Tisei, Brown, Tarr, Moore and Pacheco and Ms. Menard move to amend Amendment no. 9, by striking out the text and inserting in place thereof the following text:-. “moves to amend the bill (Senate, No. 2210) by inserting after section 51 the following section:-
“SECTION 51A. Section 58A of chapter 276 of the General Laws, as so appearing, is hereby amended by striking out subsection (1) and inserting in place thereof the following subsection:-
(1) The commonwealth may move, based on dangerousness, for an order of pretrial detention or release on conditions for a felony offense that has as an element of the offense the use, attempted use or threatened use of physical force against the person of another or any other felony that, by its nature, involves a substantial risk that physical force against the person of another may result, including the crimes of burglary and arson whether or not a person has been placed at risk thereof, or a violation of an order pursuant to section 18, 34B or 34C of chapter 208, section 32 of chapter 209, section 3, 4 or 5 of chapter 209 A or section 15 or 20 of chapter 209C, or arrested and charged with a misdemeanor or felony involving abuse as defined in section 1 of said chapter 209A or while an order of protection issued under said chapter 209A was in effect against such person, an offense for which a mandatory minimum term of 3 years or more is prescribed in chapter 94C, arrested and charged with a violation of section 13B of chapter 268 or a third or subsequent conviction for a violation of section 24 of chapter 90, or arrested and charged with a violation of paragraph (a), (c) or (m) of section 10 of chapter 269; provided, however, that the commonwealth may not move for an order of detention under this section based on possession of a large capacity feeding device without simultaneous possession of a large capacity weapon; or arrested and charged with a violation of section 10G of said chapter 269.”
ADOPTED
CLERK 10
Assault and Battery on Healthcare Providers
Messrs. Michael O. Moore and Morrissey and Ms. Flanagan move that the bill be amended by the addition of the following section:
Section 70. Chapter 265 of the General Laws is hereby amended by striking out in section 13I, as appearing in the 2000 Official Edition, and inserting in place thereof the following section:—
Section 13I. Whoever commits an assault or assault and battery on an emergency medical technician, an ambulance operator, registered nurse, registered nurse psychologist, physical therapist, occupational therapist, or an ambulance attendant, while said technician, operator, registered nurse, registered nurse psychologist, physical therapist, occupational therapist or attendant is treating or transporting, in the line of duty, a person, shall be punished by imprisonment in the house of correction for not less than ninety days nor more than two and one half years, or by a fine of not less than five hundred nor more than five thousand dollars, or both.
ADOPTED
CLERK 10.1 FURTHER
Assault and Battery on Healthcare Providers
Mr. Petruccelli, Mr. Michael O. Moore and Mr. Morrissey move to further amend Clerk 10 by striking the entirety and inserting in place thereof the following:
Section X. Section 13I of chapter 265 of the General Laws, as appearing in the 2006 official edition, is hereby amended by striking out the language in the section and inserting in place thereof the following language:
Section 13I. Whoever commits an assault or assault and battery on an emergency medical technician, an ambulance operator, an ambulance attendant, or a health care provider as defined in section 1 of chapter 111, while said technician, operator, attendant, or provider is treating or transporting a person in the line of duty, shall be punished by imprisonment in the house of correction for not less than ninety days nor more than two and one-half years, or by a fine of not less than five hundred nor more than five thousand dollars, or both.
ADOPTED
Redraft CLERK 11
Offender Pay Model
Messrs. Michael O. Moore and Tarr moves that the bill be amended in Section 44, in line 699 by the addition of the following:
"Provided further that the Sheriff’s Office in the county where the court that committed the detainee is sitting may prescribe a program administrative fee to be paid by each sentenced inmate or pre-trial detainee participating in this program that shall be determined according to his or her ability to pay, finances, household income, number of dependents and medical status. The inability to pay all or a portion of the program fees shall not preclude participation in the program, and eligibility shall not be enhanced by reason of ability to pay. For those deemed unable to pay, the Sheriff’s Office will agree to cover the cost for those participants at a reduced and agreed upon rate with the electronic monitoring agency or entity."
Rejected
CLERK 12
Further Protection of Children
Senator Michael O. Moore moves that the bill be amended by adding the following new section:
Section 70. SECTION 1. Section 178C of chapter 6 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by inserting after the words “13B of chapter 265;”, in lines 56, 87 and 106, the following words:- aggravated indecent assault and battery on a child under the age of 14 under section 13B½ of said chapter 265; a repeat offense under section 13B¾ of said chapter 265;
SECTION 2. Said section 178C of said chapter 6 is hereby further amended by inserting after the words “22A of said chapter 265;”, in lines 60, 88 and 109, the following words:- aggravated rape of a child under 16 with force under section 22B of said chapter 265; a repeat offense under section 22C of said chapter 265;
SECTION 3. Said section 178C of said chapter 6 is hereby further amended by inserting after the words “23 of said chapter 265;”, in lines 61 and 89, the following words:- aggravated rape and abuse of a child under section 23A of said chapter 265; a repeat offense under section 23B of said chapter 265;
SECTION 4. Section 178H of said chapter 6 is hereby amended by inserting after the word “13B”, in line 12, the following words:- 13B½, 13B¾,
SECTION 5. Said section 178H of said chapter 6 is hereby further amended by inserting after the word “22A,”, in line 12, the following words:- 22B, 22C,
SECTION 6. Said section 178H of said chapter 6 is hereby further amended by inserting after the word “23,”, in line 12, the following words:- 23A, 23B,
SECTION 7. Section 1 of chapter 9A of the General Laws, as so appearing, is hereby amended by inserting after the word “22A,”, in line 16, the following words:- 22B, 22C,
SECTION 8. Said section 1 of said chapter 9A is hereby further amended by inserting after the word “23,”, in line 16, the following words:- 23A, 23B,
SECTION 9. Said section 1 of said chapter 9A is hereby further amended by inserting after the word “13B,”, in line 18, the following words:- 13B½, 13B¾,
SECTION 10. Section 37 of chapter 22C of the General Laws, as so appearing, is hereby amended by inserting after the word “thirteen B”, in line 6, the following words:- thirteen B½, thirteen B¾,
SECTION 11. Section 72K of chapter 111 of the General Laws, as so appearing, is hereby amended by inserting after the word “13B,”, in line 13, the following words:- 13B½, 13B¾,
SECTION 12. Said section 72K of said chapter 111 is hereby further amended by inserting after the word “22A,”, in line 13, the following words:- “22B, 22C, 23, 23A, 23B,”
SECTION 13. Section 51B of chapter 119 of the General Laws, as amended by section 98 of chapter 176 of the acts of 2008, is hereby further amended by striking out the words “section 13B, 13H, 22, 22A, 23, 24 or 24B of chapter 265”, in subsection (k)(2), and inserting in place thereof the following words:- section 13B, 13B½, 13B¾, 13H, 22, 22A, 22B, 22C, 23, 23A, 23B, 24 or 24B of chapter 265
SECTION 14. Section 55B of chapter 119 of the General Laws, as appearing in the 2006 Official Edition, is hereby amended by inserting after the word “13B,”, in line 16, the following words:- 13B½, 13B¾,
SECTION 15. Said section 55B of said chapter 119 is hereby further amended by inserting after the word “22A,”, in line 16, the following words:- 22B, 22C,
SECTION 16. Said section 55B of said chapter 119 is hereby further amended by inserting after the word “23,”, in line 16, the following words:- 23A, 23B,
SECTION 17. Section 58 of said said chapter 119 is hereby amended by inserting after the word “13B,”, in line 12, the following words:- 13B½, 13B¾,
SECTION 18. Said section 58 of said chapter 119 is hereby further amended by inserting after the word “22A”, in line 12, the following words:- “, 22B, 22C,”
SECTION 19. Said section 58 of said chapter 119 is hereby further amended by striking out the words “or section 23”, in lines 12 and 13, and inserting in its place the following words:- 23, 23A, or 23B
SECTION 20. Section 12 of chapter 120 of the General Laws, as so appearing, is hereby amended by inserting after the words “thirteen B of said chapter two hundred and sixty-five;”, in line 12, the following words:- or aggravated indecent assault and battery on a child under the age of fourteen, as defined by section thirteen B½ of said chapter two hundred and sixty-five; or a repeat offense, as defined by section thirteen B¾ of said chapter two hundred and sixty-five;
SECTION 21. Said section 12 of said chapter 120 is hereby further amended by inserting after the words “twenty-two A of said chapter two hundred and sixty-five;”, in line 8, the following words:- or aggravated rape of a child under 16 with force, as defined by section twenty-two B of said chapter two hundred and sixty-five; or a repeat offense, as defined by section twenty-two C of said chapter two hundred and sixty-five;
SECTION 22. Said section 12 of said chapter 120 is hereby further amended by inserting after the words “twenty-five of said chapter two hundred and sixty-five;”, in line 10, the following words:- or aggravated rape and abuse of a child, as defined in section twenty-three A of said chapter two hundred and sixty-five; or a repeat offense, as defined by section twenty-three B of said chapter two hundred and sixty-five;
SECTION 23. Section 1 of chapter 123A of the General Laws, as so appearing, is hereby amended by inserting after the words “thirteen B of chapter two hundred and sixty-five;”, in line 39, the following words:- aggravated indecent assault and battery on a child under the age of fourteen under the provisions of section thirteen B½ of chapter two hundred and sixty-five; a repeat offense under the provisions of section thirteen B¾ of chapter two hundred and sixty-five;
SECTION 24. Said section 1 of said chapter 123A is hereby further amended by inserting after the words “twenty-two A of chapter two hundred and sixty-five;”, in line 46, the following words:- aggravated rape of a child under sixteen with force under the provisions of section twenty-two B of chapter two hundred and sixty-five; a repeat offense under the provisions of section twenty-two C of chapter two hundred and sixty-five;
SECTION 25. Said section 1 of said chapter 123A is hereby further amended by inserting after the words “twenty-three of chapter two hundred and sixty-five;”, in lines 47 and 48, the following words:- aggravated rape and abuse of a child under the provisions of section twenty-three A of chapter two hundred and sixty-five; a repeat offense under the provisions of section twenty-three B of chapter two hundred and sixty-five;
SECTION 26. Said section 1 of said chapter 123A is hereby further amended by inserting after the word “13B,”, in line 52, the following words:- 13B½, 13B¾,
SECTION 27. Said section 1 of said chapter 123A is hereby further amended by inserting after the word “22A,”, in line 53, the following words:- 22B, 22C,
SECTION 28. Said section 1 of said chapter 123A is hereby further amended by inserting after the word “23,”, in line 53, the following words:- 23A, 23B,
SECTION 29. Section 49B of chapter 127 of the General Laws, as so appearing, is hereby amended by inserting after the word “thirteen B,”, in lines 24 and 25, the following words:- thirteen B½ , thirteen B¾,
SECTION 30. Said section 49B of said chapter 127 is hereby further amended by inserting after the word “twenty-two A,”, in line 25, the following words:- twenty-two B, twenty-two C,
SECTION 31. Said section 49B of said chapter 127 is hereby further amended by inserting after the word “twenty-three,”, in line 25, the following words:- twenty-three A, twenty-three B,
SECTION 32. Section 49C of said chapter 127 is hereby amended by inserting after the word “thirteen B,”, in lines 21 and 22, the following words:- thirteen B½, thirteen B¾ ,
SECTION 33. Said section 49C of said chapter 127 is hereby further amended by inserting after the word “twenty-two A,”, in line 22, the following words:- twenty-two B, twenty-two C,
SECTION 34. Said section 49C of said chapter 127 is hereby amended by inserting after the word “twenty-three,”, in line 22, the following words:- twenty-three A, twenty-three B,
SECTION 35. Section 83B of said said chapter 127 is hereby amended by inserting after the word “twenty-two,”, in line 7, the following words:- twenty-two A, twenty-two B, twenty-two C,
SECTION 36. Said section 83B of said chapter 127 is hereby further amended by inserting after the word “twenty-three”, in line 7, the following words:- twenty-three A, twenty-three B,
SECTION 37. Section 90A of said chapter 127 is hereby amended by inserting after the word “thirteen B,”, in line 9, the following words:- thirteen B½ , thirteen B¾,
SECTION 38. Said section 90A of said chapter 127 is hereby further amended by inserting after the word “twenty-two A,”, in lines 10 and 11, the following words:- twenty-two B, twenty-two C,
SECTION 39. Said section 90A of said chapter 127 is hereby further amended by inserting after the word “twenty-three,”, in line 11, the following words:- twenty-three A, twenty-three B,
SECTION 40. Section 133E of said chapter 127 is hereby amended by inserting after the words “section 13B of chapter 265;”, in line 11, the following words:- aggravated indecent assault and battery on a child under 14 under section 13B½ of said chapter 265; a repeat offense under section 13B¾ of said chapter 265;
SECTION 41. Said section 133E of said chapter 127 is hereby further amended by inserting after the words “section 22A of said chapter 265;”, in line 15, the following words:- aggravated rape of a child under 16 with force under section 22B of said chapter 265; a repeat offense pursuant to section 22C of said chapter 265;
SECTION 42. Said section 133E of said chapter 127 is hereby further amended by inserting after the words “section 23 of chapter 265;”, in line 16, the following words:- aggravated rape and abuse of a child under section 23A of said chapter 265; a repeat offense pursuant to section 23B of said chapter 265;
SECTION 43. Section 152 of said chapter 127 is hereby amended by inserting after the word “thirteen B,”, in line 39, the following words:- thirteen B½, thirteen B¾,
SECTION 44. Said section 152 of said chapter 127 is hereby further amended by inserting after the word “twenty-two A,”, in lines 41 and 42, the following words:- twenty-two B, twenty-two C,
SECTION 45. Said section 152 of said chapter 127 is hereby further amended by inserting after the word “twenty-three,”, in line 42, the following words:- twenty-three A, twenty-three B,
SECTION 46. Section 21B of chapter 233 of the General Laws, as so appearing, is hereby amended by inserting after the word “thirteen B,”, in lines 3 and 4, the following words:- thirteen B½, thirteen B¾,
SECTION 47. Said section 21B of said chapter 233 is hereby further amended by inserting after the word “twenty-two A,”, in line 4, the following words:- twenty-two B, twenty-two C,
SECTION 48. Said section 21B of said chapter 233 is hereby further amended by inserting after the word “twenty-three,”, in line 4, the following words:- twenty-three A, twenty-three B,
SECTION 49. Section 4C of chapter 260 of the General Laws, as so appearing, is hereby amended by inserting after the word “thirteen B,”, in line 10, the following words:- thirteen B½, thirteen B¾,
SECTION 50. Said section 4C of said chapter 260 is hereby further amended by inserting after the word “twenty-two A,”, in line 11, the following words:- twenty-two B, twenty-two C,
SECTION 51. Said section 4C of said chapter 260 is hereby further amended by inserting after the word “twenty-three,”, in line 11, the following words:- twenty-three A, twenty-three B,
SECTION 52. Section 13L of chapter 265 of the General Laws, as so appearing, is hereby amended by inserting after the words “section 13B of chapter 265;”, in line 8, the following words:- aggravated indecent assault and battery on a child under 14 under section 13B½ of said chapter 265; a repeat offense pursuant to section 13B¾ of said chapter 265;
SECTION 53. Said section 13L of said chapter 265 is hereby further amended by inserting after the words “section 22A of said chapter 265;”, in lines 10 and 11, the following words:- aggravated rape of a child under 16 with force under section 22B of said chapter 265; a repeat offense pursuant to section 22C of said chapter 265;
SECTION 54. Said section 13L of said chapter 265 is hereby further amended by inserting after the words “section 23 of chapter 265;”, in lines 11 and 12, the following words:- aggravated rape and abuse of a child under section 23A of said chapter 265; a repeat offense pursuant to section 23B of said chapter 265;
SECTION 55. Section 24A of said chapter 265 is hereby amended by inserting after the words “thirteen B,”, in line 2, the following words:- thirteen B½, thirteen B¾,
SECTION 56. Said section 24A of said chapter 265 is hereby further amended by inserting after the words “twenty-two A,”, in line 3, the following words:- twenty-two B, twenty-two C,
SECTION 57. Said section 24A of said chapter 265 is hereby further amended by inserting after the words “twenty-three,”, in line 3, the following words:- twenty-three A, twenty-three B,
SECTION 58. Section 24C of said chapter 265 is hereby amended by inserting after the word “thirteen B,”, in line 4, the following words:- thirteen B½, thirteen B¾,
SECTION 59. Said section 24C of said chapter 265 is hereby further amended by inserting after the word “twenty-two A,”, in line 5, the following words:- twenty-two B, twenty-two C,
SECTION 60. Said section 24C of said chapter 265 is hereby further amended by inserting after the word “twenty-three,”, in line 5, the following words:- twenty-three A, twenty-three B,
SECTION 61. Section 26 of said chapter 265 is hereby amended by striking out the words “13B, 13F, 13H, 22, 22A, 23, 24 or 24B”, in lines 33 and 34, and inserting in place thereof the following words:- 13B, 13B½, 13B¾, 13F, 13H, 22, 22A, 22B, 22C, 23, 23A, 23B, 24 or 24B
SECTION 62. Section 26C of said chapter 265 is hereby amended by inserting after the word “13B,”, in line 6, the following words:- 13B½, 13B¾,
SECTION 63. Said section 26C of said chapter 265 is hereby further amended by inserting after the word “22A,”, in line 6, the following words:- 22B, 22C,
SECTION 64. Said section 26C of said chapter 265 is hereby further amended by inserting after the word “23,”, in line 6, the following words:- 23A, 23B,
SECTION 65. Section 45 of said chapter 265 is hereby amended by striking out the words “13B, 13F, 13H, 22, 22A, 23, 24, 24B or 26”, in line 21, and inserting in place thereof the following words:- 13B, 13B½, 13B¾, 13F, 13H, 22, 22A, 22B, 22C, 23, 23A, 23B, 24, 24B or 26
SECTION 66. Section 87 of chapter 276 of the General Laws, as so appearing, is hereby amended by inserting after the word “twenty-two A”, in line 10, the following words:- , twenty-two B, twenty-two C
SECTION 67. Section 63 of chapter 277 of the General Laws, as so appearing, is hereby amended by inserting after the word “13B,”, in line 3, the following words:- 13B½, 13B¾,
SECTION 68. Said section 63 of said chapter 277 is hereby further amended by inserting after the word “22A,”, in line 3, the following words:- 22B, 22C,
SECTION 69. Said section 63 of said chapter 277 is hereby further amended by inserting after the word “23,”, in line 3, the following words:- 23A, 23B,
SECTION 70. Section 70C of said chapter 277 is hereby amended by inserting after the word “13B,”, in line 9, the following words:- 13B½, 13B¾,
SECTION 71. Said section 70C of said chapter 277 is hereby further amended by striking out word “23,”, in line 10, and inserting in place thereof the following words:- 22A, 22B, 22C, 23, 23A, 23B,
SECTION 72. Section 16D of chapter 278 of the General Laws, as so appearing, is hereby amended by inserting after the word “thirteen B,”, in line 5, the following words:- thirteen B½, thirteen B¾,
SECTION 73. Said section 16D of said chapter 278 is hereby further amended by inserting after the word “twenty-two A,”, in lines 5 and 6, the following words:- twenty-two B, twenty-two C,
SECTION 74. Said section 16D of said chapter 278 is hereby further amended by inserting after the word “twenty-three,”, in line 6, the following words:- twenty-three A, twenty-three B,
ADOPTED
CLERK 13
Relative to State and Federal Agencies
Mr. Brown moves to amend the bill (S.2210) in subsection (a) of section 16 by inserting after clause (6) the following:-
(7)The department shall configure the database to allow for the exchange, dissemination, distribution, and direct connection of the criminal record information system to criminal record information systems in other states and relevant federal agencies including the Federal Bureau of Investigation (FBI) and Immigration and Customs Enforcement (ICE) that utilize fingerprint or iris scanning and similar databases.
Rejected
CLERK 14
Relative to the Sealing of Electronic Records
Mr. Brown moves to amend the bill (S.2210) in clause (3) of subsection (a) of section 16 by inserting at the end thereof the following:-
“; provided further that no record shall be sealed, eliminated, or otherwise made inaccessible on the electronic database via the world wide web until the subject has petitioned the commissioner of probation in accordance with section 100A of chapter 276.”
Ruled Out of Order
CLERK 15
Relative to the Sexual Abuse of Minors
Mr. Brown moves to amend the bill (S.2210) by inserting at the end thereof the following section:-
SECTION XX. Chapter 260 of the General Laws is hereby amended by striking out section 4C in its entirety.
ADOPTED
CLERK 16
Relative to Sex Offenses
Mr. Brown moves to amend the bill (S.2210) in line 893 by striking out “10” and inserting in place thereof:- “15”
Rejected
CLERK 17
Relative to Employee Records
Mr. Brown moves to amend the bill (S.2210) by inserting at the end thereof the following section:-
SECTION XX. Chapter 149 of the General Laws is hereby amended by inserting after Section 52C the following section:-
Section 52D. (A) Unless otherwise provided by law, an employer, or an employer’s designee, who discloses information about a current or former employee to a prospective employer of the employee shall be absolutely immune from civil liability if the disclosed information includes any or all of the following: (1) date of employment; (2) pay level; (3) job description and duties; and (4) wage history. An employer who responds in writing to a written request concerning a former employee from a prospective employer of that employee shall be absolutely immune from civil liability if the disclosed information includes either or both of the following: (1) written employee evaluations which were conducted prior to the employee’s separation from the employer; and (2) whether the employee was voluntarily or involuntarily released from service and the reasons for the separation.
(B) This section shall apply to causes of action accruing on and after the effective date of this act.
-Duplicate-
CLERK 18
Dangerousness Hearing Determinations
Mr. Baddour moves to amend the bill (Senate, No. 2210) by inserting after section 51 the following section:-
“SECTION 51A. Section 58A of chapter 276 of the General Laws, as so appearing, is hereby amended by striking out subsection (1) and inserting in place thereof the following subsection:-
(1) The commonwealth may move, based on dangerousness, for an order of pretrial detention or release on conditions for a felony offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person of another, or any other felony that by its nature involves a substantial risk that physical force against the person of another may result, including the crime of burglary and arson whether or not a person has been placed at risk thereof, or a violation of an order pursuant to section18, 34B or 34C of chapter 208, section 32 of chapter 209, section 3, 4 or 5 of chapter 209 A, or section 15 or 20 of chapter 209C, or arrested and charged with a misdemeanor or felony involving abuse as defined in section 1 of said chapter 209A or while an order of protection issued under said chapter 209A was in effect against said person, an offense for which a mandatory minimum term of 3 years or more is prescribed in chapter 94C, arrested and charged with a violation of section 13 of chapter 268 or a third or subsequent conviction for a violation of section 24 of chapter 90, or arrested and charged with a violation of paragraph (a), (c) or (m) of section 10 of chapter 269, or arrested and charged with a violation of section 10G of chapter 269.
Ruled Out of Order
CLERK 19
COMMON DEFENSE
Messrs. Brewer and Tarr move to amend the bill (Senate, No. 2210) by inserting after Section X the following new section:-
Chapter 278: Section 8A. Killing or injuring a person defense of self or others;
Section 8A. It shall be an act of lawful defense if a person, who is an occupant of a dwelling or in any place that they have a right to be, used deadly force, or less than deadly force, if he or she acted in the reasonable belief that an assailant was about to inflict great bodily injury or death upon themselves or upon another person who also had a right to be in the location. There shall be no duty on a person to retreat from any place that they have a right to be. An act of lawful defense as outlined in this section shall not be cause for arrest or prosecution. Further, an act of lawful defense under this section shall not be cause for the revocation of a license issued under sections, 122, 123, 129B or 131 of Chapter 140.
Chapter 231: Section 85U. Death or injury to assailants; liability of defender
Section 85U. No person who has committed an act of lawful defense as outlined in section 8A of chapter 278 shall be held liable in an action for damages for death or injuries to an assailant.
Redraft CLERK 20
WITHDRAWN
Ruled Out of Order
CLERK 21
ASSAULT AND BATTERY BY MEANS OF A BODILY SUBSTANCE
UPON CORRECTIONAL FACILITY EMPLOYEES
Mr. Timilty moves that the bill, Senate 2210, be amended by inserting the following new section:-
SECTION X. Chapter 127 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out section 38B and inserting in place thereof the following section:-
Section 38B.
(a) For the purposes of this section, “bodily substance” shall mean any human secretion, discharge or emission including, but not limited to, blood, saliva, mucous, semen, urine or feces.
(b) Any person in the custody of a correctional facility, including any jail, house of correction or state prison, who commits an assault or an assault and battery upon an officer or other employee, any volunteer or employee of a contractor in any such facility or any duly authorized officer or other employee of any such facility engaged in the transportation of a prisoner for any lawful purpose shall be punished by imprisonment in the house of correction for not more than 2½ years or in state prison for not more than 10 years. Such sentence shall begin from and after the expiration of any outstanding and unserved sentences.
(c) Any person in the custody of a correctional facility, including any jail, house of correction or state prison, who commits an assault or an assault and battery by means of a bodily substance upon an officer or other employee, any volunteer or employee of a contractor in any such facility or any duly authorized officer or other employee of any such facility engaged in the transportation of a prisoner for any lawful purpose shall be punished by imprisonment in the house of correction for not more than 2 ½ years or in state prison for not less than 2 ½ years nor more than 15 years. Such sentence shall begin from and after the expiration of any outstanding and unserved sentences.
Rejected
CLERK 22
FINGERPRINTING
Mr. Timilty moves to amend the bill, Senate 2210, by inserting at the end thereof the following new section:-
SECTION X. Section 1A of chapter 263 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended, by striking out the section in its entirety and inserting in place thereof the following section:-
Section 1A. Whoever is arrested by virtue of process, arraigned by virtue of an indictment or summons, or is taken into custody by an officer, and charged with the commission of any crime shall be fingerprinted, according to the system of the department of state police, and may be photographed. One copy of such fingerprints and photographs shall be forwarded within a reasonable time to the colonel of state police by the person in charge of the police department taking such fingerprints and photographs.
ADOPTED
CLERK 23
FINGERPRINT BASED BACKGROUND CHECKS OF FEDERAL RECORDS
Mr. Timilty moves to amend the bill, Senate 2210, by inserting at the end thereof the following new section:-
SECTION XX. Chapter 6 of the General Laws, as so appearing in the 2006 Official Edition, is hereby amended by inserting at the end of Section 172B the following new section:-
“Section 172B1/2. Municipalities in the Commonwealth may, by local ordinance, require applicants for licenses in specified occupations to submit a full set of fingerprints for the purpose of conducting a state and national criminal history records check pursuant to Sections 168 and 172 of Chapter 6 of the General Laws and 28 U.S.C. §534. Fingerprint submissions hereunder are authorized to be submitted by the licensing authority to the State Police Identification Unit through the Criminal History Systems Board for a state criminal records check and to the Federal Bureau of Investigation for a national criminal records check.
Municipalities may by local ordinance establish the appropriate fee charged to applicants for administering such a fingerprinting system. For purposes pursuant to Section 2LLL of Chapter 29 of the General Laws, $30 of said fee shall be deposited into the Firearms Fingerprint Identity Verification Trust Fund; and the remainder of said fee may be retained by the licensing authority for costs associated with the administration of the system.”
ADOPTED
2nd Redraft CLERK 24
IMPROVING THE BAIL REVIEW PROCESS
Messrs. Timilty, Morrissey, and Michael O. Moore and Ms. Flanagan move to amend the ways and means amendment (Senate, No. 2210) by adding the following sections:-
SECTION XX. The administrative office of the trial court shall conduct a study examining the bail review process, including, but not limited to, personal recognizance, challenges to the amount of bail for an accused and notice given to a petitioner concerning future court appearances. The administrative office shall report to the joint committee on the judiciary by July 1, 2010.
Ruled Out of Order
CLERK 25
MURDER COMMITTED BY YOUTHFUL OFFENDERS.
Mr. Timilty moves that the bill, Senate 2210, be amended by inserting the following new sections:-
SECTION XX. Section 52 of Chapter 119 of the General Laws, as appearing in the 2006 Official Edition, is hereby amended in line 13 by inserting after the word “committed,” the following words:--
“while under the age of seventeen, murder in violation of section one of chapter two hundred sixty-five; or”
SECTION 2. Section 54 of Chapter 119, as so appearing, is hereby amended in line 15 by inserting after the second paragraph the following new paragraph:--
“The commonwealth may proceed by complaint in juvenile court or in a juvenile session of a district court, as the case may be, or by indictment as provided by chapter two hundred and seventy-seven, if a person while under the age of seventeen is alleged to have committed an offense in violation of section one of chapter two hundred and sixty-five.”
SECTION 3: Section 72B of Chapter 119, as so appearing, is hereby amended by inserting at the beginning thereof the following: --
“If a person is found guilty or adjudicated delinquent by reason of murder in the first degree committed before his fourteenth birthday under the provisions of section one of chapter two hundred and sixty-five, the person shall be sentenced to 20 years with possibility of parole after 15 years; or if found guilty or adjudicated delinquent by reason of murder in second degree, the person shall be sentenced to 15 years with possibility of parole after 10 years in accordance with section fifty-eight of chapter one hundred nineteen.”
Rejected
Redraft CLERK 26
INTENSIVE PAROLE FOR SEX OFFENDERS
Ms. Jehlen moves to amend the bill (S.2210) by inserting at the end thereof the following section:
SECTION XX. Section 14 of chapter 123A of the General Laws, as it appears in the 2004 Official Edition, is hereby amended by inserting in line 55 after the word “center” the following words “or to an intensive parole for sex offenders program
ADOPTED
Redraft CLERK 27
CONDITIONS OF PAROLE
Messrs. Tarr and Baddour move to amend the bill in Section 34, 35, 36, 37, 38, 40 by adding after the phrase “house of correction” each time it appears the following words:- “; provided, that a condition of such parole may be enhanced supervision; provided further, that such enhanced supervision may include, but not be limited to, the wearing of a global position satellite tracking device, or any comparable device, administered by the board at all times for the length of the probation.”
ADOPTED
CLERK 27.1 FURTHER
CONDITIONS OF PAROLE
Ms Creem moves to further amend amendment number 27 by striking said amendment and inserting in place thereof the following amendment:- amend the bill in Section 34, 35, 36, 37, 38, 40 by adding after the phrase “house of correction” each time it appears the following words:- “; provided, that a condition of such parole may be enhanced supervision; provided further, that such enhanced supervision may include, but not be limited to, the wearing of a global position satellite tracking device, or any comparable device, administered by the board at all times for the length of the parole.”
ADOPTED
Redraft CLERK 28
CORI INFORMATION FOR ASSISTED LIVING EMPLOYEES
Ms. Jehlen moves to amend the bill (S.2210) by striking section 18 and inserting in place thereof the following section:
SECTION 18. Section 172E of said chapter 6, as so appearing, is hereby amended by striking the section in its entirety and inserting in place thereof the following paragraphs:-
Notwithstanding section 172, criminal offender record information shall be available to any long term care facility, as defined in section 72W of chapter 111, assisted living residence as defined in section 1 of chapter 19D, and to any continuing care facility as defined in section of chapter 40D for the purpose of evaluating applicants under final consideration for, or an individual currently working as, an employee, volunteer or provider of care, treatment, education, training, transportation, delivery of meals, instruction, counseling, supervision, recreation or other services for an elderly or disabled person or who will have any direct or indirect contact with such elderly or disabled persons or access to such persons’ personal information. Any such long term care facility, assisted living residence, or continuing care facility shall obtain all available criminal offender record information from the department on such applicant or current staff member. A long term care facility, assisted living residence, or continuing care facility which obtains information under this section shall prohibit the dissemination of such information of such information for any purpose other than to further the protection of the elderly or the disabled, including, but not limited to, dissemination among and between long term care facility, assisted living residence, or continuing care facility.
A long term care facility, assisted living residence, or continuing care facility may employ an individual for a position that involves the provision of direct personal care or treatment to residents of such facility on a conditional basis prior to receiving the results of such individual’s criminal offender record check from the criminal history systems board. No long term care facility, assisted living residence, or continuing care facility shall be liable for civil damages to any individual so conditionally employed and subsequently discharged by reason of information received as a result of a criminal offender record information check completed pursuant to this section.
The criminal history systems board may waive or reduce the fee assessable pursuant to section 172A for criminal offender record information made available pursuant to this section.
Notwithstanding the provisions of any general or special law to the contrary, the division of medical assistance shall, subject to appropriation, reimburse long term care facility, assisted living residence, or continuing care facility for the portion of the costs associated with obtaining criminal offender record information on employees pursuant to this section.
Rejected
CLERK 29
Pre-Trial Detention
Senator Jehlen moves to amend the bill (S. 2210) at the end thereof the following new section:-
SECTION XX. Section 35 of chapter 276 of the General Laws, as appearing in the 2004 Official Edition, is hereby amended by striking out, in line 8, the word “thirty” and inserting in place thereof the following figure:- twenty.
Rejected
CLERK 30
Procedure for Sealing Non-Convictions
Ms. Jehlen moves to amend the bill (S.2210) by adding at the end thereof the following section:
SECTION XX. Section 100C of Chapter 276, as so appearing, is hereby amended by striking out the first two paragraphs and inserting in place thereof the following paragraphs:—
As to any criminal charge wherein a no bill has been returned by the grand jury, the commissioner of probation shall seal said court appearance and disposition recorded in his files, and the files of the clerk and the probation officers of the courts in which the proceedings occurred or were initiated shall likewise seal the charge in the records of the proceedings in their files. The provisions of this section shall not apply if the defendant makes a written request to the commissioner not to seal the records of the proceedings.
As to any criminal charge which results in non-conviction, the record of such criminal charge shall be considered for sealing according to the following procedure:
- On the first business day of each month the clerk of each court having criminal jurisdiction shall post in the courthouse for public access a list of non-conviction criminal charges from the previous month which may be considered for sealing.
- On or before the tenth day of each month, the clerk shall provide notice by mail to any individual whose charges are listed. Such notice shall consist of the following: the date and title of each criminal charge; the date of final disposition of each charge; one copy for each charge of the form prescribed by the Commissioner of Probation for petitioning the court to seal the record of a criminal charge; and the date, time, and location of the hearing session where sealing shall be considered, which date shall be the first business day of the following month.
- Any person may object to the sealing of a particular charge by filing with the clerk’s office at least two weeks before the scheduled hearing date a written objection stating the reason or reasons for the objection. The objection shall be available upon request to the person whose charges are posted for prospective sealing or to his or her attorney.
As used in this section, a “non-conviction criminal charge” is one in which the defendant was found not guilty by the court or a jury, or a finding of no probable cause was made by the court, or a nolle prosequiwas entered, or a dismissal was entered by the court, whether or not said dismissal was preceded by a continuance without a finding. The term “non-conviction criminal charge” shall not include any charge the dismissal of which was preceded by a term of active probation wherein the defendant was required to report to an assigned probation officer on a periodic basis.
At any court session at which criminal charges are considered for sealing, the court shall consider as to each charge: (a) the facts and arguments presented by the petitioner in favor of sealing; (b) the facts and arguments presented by any objector who timely filed an objection; and (c) the general public interest in access to governmental records, as protected by the First and Fourteenth Amendments to the United States Constitution.
If the court concludes that the petitioner has been unable to secure employment, housing, a license, or admission to an educational program, or has been otherwise excluded from the mainstream of secure living because of his criminal offender record information, the court may find that a compelling governmental interest exists to seal the charge or charges under consideration, which interest overcomes the public interest in access to governmental records. If the court so decides, the court shall direct the clerk to seal the relevant charge or charges in his files, and the probation department shall forthwith notify the office of the commissioner of probation and the probation officers of the courts in which the proceedings occurred or were initiated, who shall likewise seal the charges of the proceedings in their files.
Rejected
Redraft CLERK 31
Mandatory Minimum Sentence
Mr. Buoniconti moves that the bill (Senate, No. 2210) be amended by striking out Sections 34 through 48A inclusive in their entirety, and that the bill be further amended by striking out sections 51, 66, and 67 in their entirety.
CLERK 32
WITHDRAWN
ADOPTED
CLERK 33
PROHIBITING JUVENILE INTIMIDATION OF WITNESSES
Mr. Morrissey moves to amend the bill, Senate 2210, by adding the following new section:
SECTION 70. Chapter 119 of the Massachusetts General Laws is hereby amended in the third paragraph of section 54 by adding after the words “chapter two hundred and sixty-nine,” in first sentence the following:- or the person has committed a violation of section thirteen B of chapter two hundred and sixty-eight,
Rejected
CLERK 34
DNA DATABASE
Messrs. Tisei, Tarr, Knapik, Hedlund and Brown move to amend the bill (Senate, no. 2210) by inserting the following sections: -
SECTION XX. Section 3 of chapter 22E of the General Laws, as appearing in the 2004 official edition, is hereby amended by striking the text thereof, and inserting in place thereof following: -
“Any person who is arrested by virtue of process, or is taken into custody by an officer and charged with the commission of a felony, and who upon arrest has been arraigned pursuant to the applicable court rules under the Massachusetts Rules of Criminal Procedure, shall submit a DNA sample to the department. The sample shall be collected by a person authorized under section 4 of this chapter subsequent to arraignment, in accordance with regulations or procedures established by the director. The results of such sample shall be made part of the state DNA database.
Section XX. Section 12 of chapter 22E of the General Laws, as appearing in the 2004 offical edition, is hereby amended in line 6 by striking out the words “$1,000” and inserting in its place thereof the folllowing words:- $2,000. Said section is further amended in line 7 by striking out the words “six months” and inserting in place thereof the folllowing words: - one year.
Section 3. Section 13 of chapter 22E of the General Laws, as appearing in the 2004 offical edition, is hereby amended by striking in line 4 the words “$1,000” and inserting in its place thereof the folllowing words:- $2,000. Said section is further amended in line 5 by striking out the words “six months” and inserting in place thereof the folllowing words: - one year.
Section 4. Section 15 of chapter 22E of the General Laws, as appearing in the 2004 offical edition, is hereby amended in line 3 by adding after the word “expunged” the following: -
“if the original offense upon which the collection of DNA is based does not result in a conviction; or”
Rejected
CLERK 35
Post Conviction DNA Testing
Mr. Tisei moves to amend the bill (Senate, no. 2210) by inserting at the end thereof the following sections:
SECTION XX. Legislative Findings
The general court hereby finds that (1) forensic and scientific techniques are often used to analyze evidence or biological material obtained during the investigation of a crime, and, as these techniques become more accurate, their use can, in some cases, conclusively establish a person’s guilt or innocence, or otherwise provide significant probative evidence; (2) as these techniques have improved, they have allowed analyses of earlier obtained evidence or biological materials; (3) in some circumstances, modern techniques can be used to demonstrate that a conviction that predates the development of such techniques was based on incorrect factual findings, and these forensic and scientific techniques provide a more reliable basis for establishing a factually correct verdict than the evidence available at the time of the original
conviction; (4) in recent years, there lave been a significant number of exonerations based on the results of newly developed forensic ind scientific techniques; (5) the purpose of this chapter is to remedy the injustice of wrongful convictions of factually innocent persons by allowing access to analyses of biological material with newer forensic and scientific techniques.
SECTION XX. The General Laws are hereby amended by adding
the following new chapter:—
Chapter 278A. Post Conviction Access to Forensic and Scientific Analysis.
§ 1. Definitions.
As used in this chapter, the following words shall have the following meanings, unless the context clearly requires otherwise:—
“Analysis” shall mean the process by which a forensic or scientific technique is applied to evidence or biological material to identify the perpetrator of a crime.
“Conviction” shall mean any verdict or finding of guilty, a plea of guilty, or a plea of nolo contendere, entered by the trial court.
“Criminal offender databases” shall include: the State DNA Database, G. L. c. 22E; the Sex Offender Registry, G. L. c. 6, §§ 178C-N; and the Criminal Offender Record Information System, G. L. c. 6, § 168-178A.
“Factually innocent” shall describe a person convicted of a criminal offense who did not commit that offense.
“Governmental entity” shall mean any official body of the commonwealth, or of any county, city, or town within the commonwealth.
“Inventory” shall mean a detailed listing, including a particularized description of each listed item.
“Moving party” shall mean a person who files a motion pursuant to this Chapter. “Post conviction” shall indicate any time after which a conviction has been entered.
“Prosecuting attorney” shall mean the District Attorney for the district in which the moving party was convicted, or the Attorney General of the commonwealth.
“Replicate analysis” shall mean the duplication of an analysis performed on a particular item of evidence or biological material.
“Underlying case” shall mean the trial court proceedings that resulted in the conviction of the moving party.
“Victim” shall mean any natural person who suffered direct or threatened physical, emotional, or financial harm as the result of the commission or attempted commission of the crime that is the subject of the underlying case, and shall also include the parent, guardian, legal representative, or administrator or executor of the estate of such person if that person is a minor, incompetent, or deceased.
“Victim and witness assistance board” shall mean the entity established by G. L. c. 258B, § 4.
§ 2. Applicability.
Any person who has been convicted of a criminal offense in a court of the commonwealth, and is in custody or whose liberty is restrained as the result of that conviction, and asserts that he is factually innocent of that criminal offense, may file a motion pursuant to this Chapter.
§ 3. Requirements and procedures for filing.
(a) A person seeking relief pursuant to this Chapter shall file a motion in the court in which the conviction was entered, using the same caption and docket number as identified the underlying case.
(b) The motion shall include the following information, and when. relevant, shall include specific references to the record in the underlying case, or to affidavits that are filed in support of the motion that are signed by a person with personal knowledge of the factual basis of the motion:
(1) The name and a description of the requested forensic or scientific analysis; and
(2) Information demonstrating that the requested analysis is admissible as evidence in courts of the commonwealth; and
(3) A description of the evidence or biological material on which the analysis may be conducted, including its location if known, and
(4) Information demonstrating that the evidence or biological material was obtained in relation to the underlying case; and
(5) Information demonstrating that the analysis has the potential to result in evidence that is material to the moving party’s identification as the perpetrator of the crime in the underlying case; and
(6) Information demonstrating that the evidence or biological material has not been subjected to the requested analysis because:
1. The requested analysis had not yet been developed at the time of the conviction; or
2. The results of the requested analysis were not admissible in courts of the commonwealth at the time of the conviction; or
3. The moving party and his attorney were not aware of and did not have reason to be aware of the existence of the evidence or biological material at the time of the underlying case and conviction; or
4. The moving party’s attorney in the underlying case was aware at the time of the conviction of the existence of the evidence or biological material, the results of the requested analysis were admissible as evidence in courts of the commonwealth, and a reasonably effective attorney would have sought the analysis; or
5. The evidence or biological material was otherwise unavailable at the time of the conviction.
(c) The moving party shall file with the motion copies of all reports, documents, memoranda, and notes from forensic or scientific analysis that has been conducted on any evidence or biological material that was obtained in relation to the underlying case. The moving party shall include these reports with the motion regardless of whether the moving party has previously provided them to the prosecuting attorney, whether they were offered or admitted as evidence in the underlying case, or whether they would have been admissible as evidence in the underlying case.
(d) The moving party shall provide copies of those portions of the transcripts of the trial, if applicable, during which the results of forensic or scientific analysis was offered as evidence by either the moving party or prosecuting attorney.
(e) The moving party shall identify all court proceedings that are currently pending and that relate to the underlying case, including the name of the court, docket number, and status of each such proceeding. The moving party shall also certify that each party to those proceedings has received notice of the proceedings under this Chapter.
(f) If the moving party is unable to include for filing with the motion any of the items or information described in (b), (c), and (d), the moving party shall include a description of efforts made to obtain such items and information.
(e) A person who pleaded guilty or nolo contendere in the underlying case may file a motion under this Chapter. A judge shall not find that identity was not or could not have been a material issue in the underlying case because of the plea. A person who is alleged to have, or admits to having, made a statement that is or could be incriminating may file a motion under this Chapter. A judge shall not find that identity was not or should not have been a material issue in the underlying case because the moving party made, or is alleged to have made, an incriminating statement.
(f) The court may deny, without prejudice, any motion which fails to include all the information required by this Section.
§ 4. Service of process and response to motion.
(a) The moving party shall file the motion with the court which adjudicated the underlying case and shall serve a copy of the motion on the prosecuting attorney.
(b) The prosecuting attorney shall have 60 days to file a response with the court and shall simultaneously serve the response on the moving party. The prosecuting attorney may request one 30 day extension in which to file the response, which the court shall allow only for good cause shown.
(c) The prosecuting attorney’s response shall include:
(1) An inventory of all evidence or biological material that was obtained in relation to the underlying case, regardless of whether it was introduced at trial or would be admissible;
(2) The current location of all evidence or biological material that was obtained in relation to the underlying case; and
(3) A detailed chain of custody for the evidence or biological material that is the subject of the motion.
(d) The response shall also include copies of all reports, documents, memoranda, and notes from forensic or scientific analysis that has been conducted on any evidence or biological material that was obtained in relation to the underlying case. The prosecuting attorney shall include these documents with the response regardless of whether the prosecuting attorney has earlier provided them to the moving party or defense counsel, or whether such documents were offered or admitted as evidence in the underlying case, or whether such documents would have been admissible.
(e) The response shall also include any specific legal or factual objections that the prosecuting attorney has to the requested analysis.
(f) The response may include evidence or other information relating to the guilt of the moving party.
§ 5. Appointment of counsel.
The judge in his discretion may assign or appoint counsel to represent a moving party in the preparation and presentation of motions filed under this Chapter.
§ 6. Hearing.
(a) The court shall order a hearing on the motion if it conforms with the requirements of §3.
(b) The judge who conducted the trial or accepted the moving party’s plea of guilty or nolo contendere in the underlying case shall conduct the hearing if possible.
(c) The moving party may file a motion requesting that he be present at the hearing on the motion. If the judge allows such a motion, the judge shall order the commonwealth to produce the moving party at the hearing.
§ 7. Ruling on the Motion.
(a) The judge shall state findings of fact and conclusions of law on the record, or shall make written findings of fact and conclusions of law, that support the decision to allow or deny a motion brought under this Chapter.
(b) The judge shall allow the motion if each of the following has been demonstrated by a preponderance of the evidence:
(1) that the evidence or biological material exists;
(2) that the evidence or biological material has been subject to a chain of custody that is sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect;
(3) that the evidence or biological material has not been subjected to the requested analysis;
(4) that the requested analysis has the potential to result in evidence that is material to the moving party’s identification as the perpetrator of the crime in the underlying case;
(5) that the purpose of the motion is not the obstruction of justice or delay;
(6) that the results of the particular type of analysis being requested have been found to be admissible in courts of the commonwealth; and
(7) that, if the results of the requested analysis are favorable to the moving party, justice may not have been done in the underlying case.
(c) The judge may order the production of information and materials in whatever form, from the commonwealth or any person or entity, by subpoena or other legal process.
§ 8. Laboratory.
(a) In allowing a motion under this Chapter, a judge may impose reasonable conditions on the analysis designed to protect the interests of the commonwealth in the integrity of the evidence or biological material and the analysis.
(b) The prosecuting attorney and the moving party shall agree on a laboratory to conduct the analysis.
(c) If the prosecuting attorney and the moving party are unable to agree on a laboratory, the judge shall designate a laboratory that is accredited by the American Society of Crime Laboratory Directors Laboratory Accreditation Board and has the capability to perform the requested analysis.
(d) The laboratory shall be provided with a copy of all of the filings relating to the motion, including all of the judge’s orders. The laboratory shall also be provided with a copy of this Chapter in its entirety.
(e) The laboratory shall only communicate with the prosecuting attorney and the moving party simultaneously and in writing.
(f) Neither the prosecuting attorney nor the moving party shall communicate with the laboratory without simultaneously communicating with the other party.
(g) The laboratory shall endeavor to retain and maintain the integrity of a sufficient portion of the evidence or biological material for replicate analysis. If, after initial examination of the evidence or biological material, but before the actual analysis, the laboratory determines that there is insufficient material for replicate analysis, it shall simultaneously notify in writing the prosecuting attorney, the moving party, and the judge. In the event that there is insufficient material to perform replicate analysis, upon request of either party, the judge shall make such orders to ensure that representatives of the moving party and the prosecuting attorney have the opportunity to observe the analysis. Such analysis shall be subject to the rules and practices of the laboratory.
(h) The moving party shall cooperate with the laboratory. At the laboratory’s request and upon court order, the moving party shall provide biological samples to the laboratory. If the moving party unreasonably fails to cooperate with the laboratory, the judge may deny the motion with prejudice.
§ 9. Timeliness of analysis.
Upon allowance of a motion under this Chapter, analysis shall take place as soon as practicable.
§ 10. Costs.
The costs of the analysis shall be borne:
(a) by the moving party if the moving party is not indigent and has sufficient means to make such payment; or (b) by the commonwealth; or (c) by both the moving party and the commonwealth, in shares as the court deems equitable.
§ 11. Effect on other proceedings.
(a) A motion may be filed under this Chapter even if an appeal of the conviction or other post-conviction proceedings in the underlying case are pending.
(b) A judge shall consider a motion filed pursuant to this Chapter even if there is an appeal or other post conviction proceedings pending.
(c) If the judge allows a motion filed pursuant to this Chapter, the court in which the appeal or post conviction proceedings are pending shall be notified if different from the court in which the motion was filed. When a court receives notice under this section, it shall stay any appeal or post conviction proceedings pending the final outcome of proceedings pursuant to this Chapter.
(d) Proceedings pursuant to this chapter shall not stay or otherwise interfere with a term of incarceration, parole, probation, or other sentence imposed.
§ 12. Disclosure of results of analysis.
(a) The results of the analysis shall be simultaneously disclosed to the moving party, the prosecuting attorney, and the judge.
(b) At the request of any party, or on its own initiative, the judge shall order production of the underlying laboratory data, documents, and notes.
§ 13. Effect of analysis.
(a) If the analysis confirms that the factual findings for the verdict or judgment in the underlying case were correct, and that the moving party was properly convicted and sentenced, the court shall deny the motion with prejudice. The court may also order:
(1) The prosecuting attorney to provide copies of the report of the analysis to the Superintendent of the Department of Correction and the Chairperson of the Parole Board;
(2) The prosecuting attorney to provide copies of the report of the analysis to relevant criminal offender databases; or
(3) The moving party to assume the cost of the analysis.
(b) If the analysis neither confirms nor contradicts the factual findings for the verdict or judgment in the underlying case, the court shall:
(1) Order any additional analysis requested if the court concludes that the requirements of § are met, or
(2) If no additional analysis is requested that would meet the requirements of § deny the motion with prejudice if either:
A. No additional analysis is requested, or
B. Additional analysis is requested but the requirements of § are not met.
(c) If the analysis demonstrates that the factual findings for the verdict or judgment in the underlying case were incorrect, and that the moving party was not properly convicted or sentenced, notwithstanding any rule or law that would bar a new trial, the court shall:
(1) On motion of the prosecuting attorney and good cause shown, order replicate analysis of the evidence or biological material and a stay of further proceedings pending the result of the replicate analysis, with the cost of such replicate testing to be borne by the prosecuting attorney;
(2) Order the release of the moving party from custody;
(3) On motion of the moving party, order a new trial; or
(4) Order any other relief that serves the interest of justice.
§14. Notice to victims.
(a) If a motion is filed under this Chapter, the prosecuting attorney may notify the victim of the crime in the underlying case pursuant to G. L. c. 258B, § .
(b) The prosecuting attorney shall promptly notify the victim and the victim and witness assistance board if a judge allows the motion.
(c) The prosecuting attorney shall promptly notify the victim and the victim and witness assistance board of the result of the analysis.
§ 15. Waiver of rights.
The right to file a motion pursuant to this Chapter shall not be waived. This prohibition of any waiver includes, but is not limited to, any stated or unstated waiver that is or is alleged to be part of any agreement or understanding related to any plea of guilty or of nolo contendere or to any sentencing or appellate proceeding or to any correctional placement or conditions.
§ 16. Preservation of evidence and biological material.
(a) Any governmental entity that is in possession of evidence or biological material that is collected for its potential evidentiary value during the investigation of a crime, the prosecution of which results in a conviction, shall retain such evidence and biological material for the period of time that any person remains in the custody of the commonwealth in connection with that crime, without regard to whether the evidence or biological material was introduced at trial. Each governmental entity shall retain all such evidence and biological material in a manner that is reasonably designed to preserve the evidence and biological material and to prevent its destruction or deterioration.
(b) The Attorney General and the Secretary of Public Safety shall promulgate regulations governing the retention and preservation of evidence and biological material by any governmental entity, which regulations shall include standards for maintaining the integrity of the materials over time, the designation of officials at each governmental entity with custodial responsibility, and requirements of contemporaneously recorded documentation of individuals having and obtaining custody of any evidence of biological material.
§ 17. Liability.
(a) Governmental officials and employees acting in good faith shall not be liable in a civil or criminal proceeding for any act or pursuant to the provisions of this chapter.
(b) If a governmental entity responsible for the preservation of evidence or biological material engages in willful or wanton misconduct or gross negligence which results in the deterioration or destruction of evidence or biological material so that a laboratory is unable to perform adequate or proper analysis, that entity shall be subject to proceedings for contempt.
(c) Nothing in this chapter shall create any cause of action for damages against the commonwealth or any of its subdivisions or officers, employees, agents, or subdivisions, except as provided in this Section.
§ 18. Appeal.
An order allowing a motion filed under this Chapter is not a final and appealable order. An order denying a motion filed under this Chapter is a final and appealable order. Any appeal from such an order shall be claimed by filing a notice of appeal within 30 days of the court’s entry of the written order upon the docket.
Rejected
CLERK 36
CORI INFORMATION FOR PCA PROGRAM
Senator Jehlen moves that the bill (S.2210) be amended by adding at the end thereof the following new section:-
SECTION XX: Section 172C of Chapter 6 of the General Laws, as appearing in the 2006 official edition, is hereby deleted in its entirety, and replaced with the following new section:
Chapter 6: Section 172C. Dissemination of criminal offender record information to agencies, elderly persons, or individuals with a disability employing or referring individuals to provide services to said elderly or individuals with a disability.
Section 172C. For purposes of this section, the following words shall, unless the context requires otherwise, have the following meanings:--
"Elderly person", an individual who is sixty years of age or over.
"Individual with a disability", an individual who, because of his or her disability, needs physical assistance with activities of daily living, such as taking medications, bathing or grooming, dressing, walking, eating, toileting, and transferring.
"Surrogate or agent", a person or agency designated by an elderly person or an individual with a disability to act in his or her behalf with regards to home or community based services.
Notwithstanding the provisions of Section 172, criminal offender record information shall be made available to any of the following entities who employ, accept as a volunteer or refer for employment to a client any individual who will provide care, treatment, education, training, transportation, delivery of meals, instruction, counseling, supervision, recreation or other services in a home or in a community based setting for any elderly person or individual with a disability or who will have any direct, indirect, or unmonitored contact with such elderly person or individual with a disability or access to such persons' files:
(1) any agency which provides homemaker, home health aide, companion or other community based services to elderly persons or individuals with a disability in home or community based settings, including, but not limited to home health agencies certified under Title XVIII of the Social Security Act;
(2) a home care corporation established pursuant to the provisions of chapter nineteen A;
(3) a municipality; or
(4) any agency or organization that employs or refers personal care attendants; or
(5) any other entity receiving federal, state or local funds.
Notwithstanding the provisions of Section 172, criminal offender record information may be made available, upon application to the Criminal History Systems Board, to any elderly person or individual with a disability that employs or refers personal care attendants
Such entities, including any elderly person or individual with a disability that employs or refers personal care attendants, may obtain criminal offender record information, as made available by both the state and federal government, including the criminal offender record information collected under section 168 of this chapter, and information contained in the sex offender registry created by section 178D of this chapter, concerning any such individual. Other than such elderly person or individual with a disability, all other such entities shall obtain such criminal record information prior to employing such individual, accepting such individual as a volunteer or referring such individual for employment to an elderly person or individual with a disability. If any elderly person or individual with a disability employing a personal care attendant is unable to initiate the criminal background check called for under this section, said background check may be initiated by a surrogate or agent on behalf of the elderly person or individual with a disability.
Any elderly person or individual with a disability who is the recipient of services from any individual who provides care, treatment, education, training, transportation, delivery of meals, instruction, counseling, supervision, recreation or other services in a home, shall be given the option to commence said services while a criminal background check is being conducted. An elderly person or individual with a disability may employ an individual for a position that involves the provision of direct personal care or treatment on a conditional basis prior to receiving the results of such individual's criminal offender check as provided for by this section. No elderly person or individual with a disability shall be liable for civil damages to any individual so conditionally employed and subsequently discharged by reason of information received as a result of a criminal offender record check completed pursuant to this section.
Any agency, elderly person, or individual with a disability obtaining information under this section shall not disseminate such information for any purpose other than to further the protection of the elderly person or individual with a disability, provided that the results of a criminal background check may be shared by such agencies with the elderly person or individual with a disability who is the recipient of services as defined in this section, where the elderly person or individual with a disability is the employer of said person who was the subject of a criminal history background check.
Notwithstanding the provisions of this section, an elderly person or individual with a disability who employs a personal care attendant shall be informed of his or her option to have a criminal background check performed on any individual who is otherwise qualified and is in the final stages of consideration to become his or her personal care attendant. Said elderly person or individual with a disability shall be required to consent in writing to the provision of a criminal background check as provided for under this section, and shall be permitted to hire any individual of his or her choice.
The criminal history systems board shall waive the fee assessable pursuant to section 172A for criminal offender record information made available pursuant to this section. Notwithstanding the provisions of any general or special law to the contrary, the division of medical assistance shall, subject to appropriation, reimburse any agency, elderly person or individual with a disability obtaining information under this section for the portion of the costs associated with obtaining criminal offender record information on employees or potential employees providing services to individuals on MassHealth pursuant to this section.
A violation of this section shall constitute a violation of section 2 of chapter 93A.
The Criminal History Systems Board shall promulgate any regulations necessary to implement the provisions of this section.
ADOPTED
CLERK 37
Prohibiting Sex Offenders from Operating School Buses and Ice Cream Trucks
Messrs. Knapik, Tisei, Tarr and Brown move to amend the bill (Sen. No. 2210) by inserting at the end thereof the following section: -
“XX. Section 8A of chapter 90 of the General Laws, as appearing in the 2004 Official Edition, is hereby amended by striking out, in lines 23 to 24, “has been convicted of the crime of rape, unnatural act, sodomy, or ” and inserting in place thereof the following words:- is a sex offender, as defined in section 178C of chapter 6, or who had been convicted of
SECTION 2. Section 8A1/2 of said chapter 90, as so appearing, is hereby amended by striking out, in lines 20 to 21, “has been convicted of the crime of rape, unnatural act, sodomy, or ” and inserting in place thereof the following words:- is a sex offender, as defined in section 178C of chapter 6, or who had been convicted of
SECTION 3. Chapter 265 of the General Laws is hereby amended by adding the following section:-
Section 45. A sex offender, as defined by section 178C of chapter 6, who engages in ice cream truck vending, as defined in section 25 of chapter 270, shall be punished by up to 2 ½ years in the house of correction or by a fine of $1,000 or by both such fine and imprisonment. A police officer or officer authorized to serve criminal process may arrest without a warrant any person who he has probable cause to believe has violated this section.
SECTION 4. Chapter 270 of the General Laws is hereby amended by adding the following section:-
Section 25. (a) For the purposes of this section, the following words shall have the following meanings:-
“Ice cream”, any frozen dairy or water-based food product.
“Ice cream truck”, any motor vehicle used for selling, displaying or offering to sell ice cream or any other frozen dairy or frozen water-based food product.
“Ice cream truck vending”, the selling, displaying or offering to sell ice cream, water-based food product or any other prepackaged food product from an ice cream truck
“Permitting authority”, the chief of police or the board or officer having control of the police in a city or town or person authorized by them.
(b) No person shall engage in ice cream truck vending unless issued a valid permit to do so by the permitting authority within the municipality wherein the permit applicant lives or intends to operate such ice cream truck. Such permit shall be conspicuously displayed and clearly visible on the windshield of such truck. Whoever violates this section shall be assessed a fine of $500. Each day that such person is in operation in violation of this section may be considered a separate violation.
SECTION 5. The department of public safety shall adopt regulations relative to the annual permitting of ice cream truck vendors. Such regulations shall include, but not be limited to:
(1) a requirement that all applications for such permit or applications for a renewal of such a permit include a current photo of the applicant and the applicant’s fingerprints;
(2) adoption of a uniform permit application and permit form, to be used by all municipalities;
(3) requiring that all permitting authorities, as defined by section 25 of chapter 270, conduct an investigation into the criminal history of a permit applicant to determine eligibility for a permit;
(4) restricting any permitting authority, as defined by section 25 of chapter 270, from issuing an ice cream truck vending permit to any sex offender, as defined by section 178C of chapter 6 of the General Laws; and
(5) Establishing an appeal process for any persons denied such permit.
SECTION 6. The department of public safety shall adopt the regulations required under section 3 not later than 90 days from the effective date of this act.
SECTION 7. Section 2 shall take effect 180 days from the effective date of this act.
Ruled Out of Order
CLERK 38
REINSTATEMENT OF CAPITAL PUNISHMENT
Messrs. Tisei, Tarr, Knapik and Brown move to amend the bill (Senate, no. 2210) by inserting at the end thereof the following: -
SECTION 1. The General Laws are hereby amended by inserting after chapter 279, the following chapter:-
CHAPTER 279A.
CAPITAL MURDER AND PUNISHMENT.
Section 1. For the purposes of this chapter, the following words shall have the following meanings:-
“An act of political terrorism” means an act committed by the defendant for the purposes of attacking the government of the United States, or any political subdivision thereof.
“Capital-case qualified” shall have the same meaning as is set forth in section 8A of chapter 211D.
“Death qualified jury” is one from which prospective jurors have been excluded for cause in light of their inability to set aside their views about the death penalty that would prevent or substantially impair the performance of their duties as jurors in accordance with their instructions and their oath. A “death qualified jury” also shall not include any other prospective jurors who fail to meet any other prevailing standards for “death qualification” that are defined by the United States supreme court.
“Gratuitous and depraved manner” means that the defendant inflicted pain in addition to that which necessarily accompanied the act of killing itself, or the particular method of killing was chosen by the defendant for the purpose of inflicting such pain.
“Human evidence” means statements made by individuals, including by not limited to eyewitness testimony, statements made by a defendant while in police custody, and statements made by the co-defendants or informants.
“Mentally incompetent to be executed” means that due to a mental disease or defect, a defendant, who is convicted of capital murder and sentenced to death, is presently unaware that he or she is to be punished for the crime of capital murder, or that he or she is unaware that the impending punishment for that crime is death.
“Mentally retarded” means that the defendant satisfies the definition of “mental retardation” as promulgated by either the American Psychiatric Association or the American Association on Mental Retardation. A defendant who satisfies any other definition of “mental retardation” that is established by the United States supreme court also shall be considered “mentally retarded.”
“Scientific physical or other associative evidence” means evidence that connects the defendant to either the location of the crime scene, the murder weapon, or the victim’s body, and that strongly corroborates the defendant’s guilt of capital murder. Physical or other associative evidence includes any tangible image, object, or item that can be independently examined for the purpose of obtaining useful investigative information, or for rendering an interpretation relevant to a fact at issue in the particular capital murder case. Such physical or other associative evidence that may be capable of providing conclusive associations of suspects, victims, crime scenes, or the implements of crime, may include, but are not limited to DNA, photographs, video and audiotapes, fingerprints, and certain impression evidence such as footwear impressions, tire -impressions, tool marks, firearms-related impressions, and other physical pattern matches. In addition to these categories, other categories of scientific evidence may also satisfy, either now or in the future, the requirement of conclusive physical or other associative evidence.
“Torture” means the infliction of extreme physical or psychological pain against a victim whom the defendant knew was conscious.
Section 2. Murder in the first degree is capital murder when:
(A). The defendant committed the murder through:
- The defendant’s own conduct;
- The conduct of another person acting under the defendant’s direction or control; or
- The conduct of another person pursuant to an agreement between that person and the defendant to commit the murder; and
(B). The defendant committed the murder with deliberately pre-meditated malice aforethought with respect to the victim’s death; and
(C). The defendant was at least 18 years old at the time the defendant either:
(1) Engaged in the conduct that caused the victim’s death;
(2) Directed or controlled another person to commit the murder; or
(3) Entered into an agreement with another person for that person to commit the
murder; and
(D). One or more of the following additional elements is present:
- The defendant committed the murder as an act of political terrorism;
- The defendant committed the murder for the purpose of influencing, impeding, obstructing, hampering, delaying, harming, punishing, or otherwise interfering with a criminal investigation, grand jury proceeding, trial, or other criminal proceeding of any kind, including a possible future proceeding, or in retaliation for the victims’ role in the investigation or adjudication of a prior criminal case, including the implementation of the defendant’s sentence, against:
- A victim whom the defendant knew or believed to have played an official role within the criminal justice system, such as a police officer, parole or probation officer, judge, juror, court official, prosecutor, criminal defense attorney, expert witness or employee of a correctional institution; or
- A victim whom the defendant knew or believed to have been (i) a witness to a crime committed on prior occasions, or (ii) an immediate family member of such a witness, including but not limited to a husband, wife, father, mother, daughter, son, brother, sister, stepparent, stepchild, grandparent or grandchild.
(3) The defendant intentionally tortured the victim, for a prolonged period of time and in a gratuitous and depraved manner, during or immediately prior to the murder;
- The defendant committed murder in the first degree against two or more victims, and each of the murders satisfied (A) through (C) herein;
(5) The defendant has a previous conviction for murder in the first degree or the closest equivalent, as defined by the law of the relevant jurisdiction, and the previous murder also satisfied elements (A) through (C) herein;
- At that time that the defendant engaged in the conduct described in element (A) herein, the defendant was subject to sentence of imprisonment for life, without the possibility of parole, as the result of a previous conviction for the murder in the commonwealth or elsewhere in the United States.
(E). The punishment for capital murder shall be imprisonment for life without the possibility of parole or the death penalty.
Section 3. (A). It shall be an affirmative defense to capital murder that the defendant is mentally retarded. This affirmative defense may be raised by the defendant before the commencement of the trial, in which case the determination of mental retardation will be made by the superior court; or during the guilt-innocence stage of the trial, in which case the fact-finder will make the determination of mental retardation. Nothing in this section shall prevent the defendant from raising the issue of possible mental retardation as a mitigating circumstance at the sentencing stage of the trial.
(B). If a defendant intends to rely upon the affirmative defense of mental retardation at trial, whether or not there was pretrial litigation on the matter, he shall, within the time provided for the filing of pretrial motions by rule 13 of the rules of criminal procedure or at such later time as the judge may allow, notify the district attorney in writing of such intention. The defendant shall file a copy of the notice with the superior court clerk. The superior court may for good cause shown allow late filing of the notice, grant additional time to the parties to prepare for trial, or make such other order as may be appropriate. The notice shall state: (a) whether the defendant intends to offer testimony of expert witnesses on the issue of mental retardation; and (b) the names and addresses of expert witnesses whom the defendant expects to call. Such expert witnesses, whether appointed or retained by the defendant, shall have access to any available psychiatric or psychological report previously submitted to the court with respect to the mental condition of the defendant, including, if applicable, any reports regarding the defendant’s competency to stand trial or the defendant’s criminal responsibility.
(C ). For the purposes of adjudicating the affirmative defense of mental retardation, a defendant indicted for capital murder shall be presumed not to be mentally retarded.
- If the defendant makes a pretrial motion alleging mental retardation, it shall be the defendant’s burden to rebut that presumption and to establish, by a preponderance of the evidence, that he is mentally retarded.
- IF the defendant raises the issue of mental retardation in his defense at the capital murder trial, whether or not there was pretrial litigation on the matter, the defendant shall have the burden to produce some evidence tending to show that he is mentally retarded. Where the defendant produces such evidence, which fairly puts mental retardation in issue, then the commonwealth must prove, beyond a reasonable doubt, that the defendant is not mentally retarded.
- If the defendant raises the issue of possible mental retardation as a mitigating circumstance at the sentencing.
(D). At a reasonable time prior to the commencement of the trial of a defendant indicted for capital murder, the defendant may, upon a written motion alleging probable cause to believe the defendant is mentally retarded, apply for an order directing that a mental retardation hearing be conducted prior to trial. If, upon review of the defendant’s motion and any response thereto, the superior court finds probable cause to believe the defendant is mentally, retarded, the court shall promptly conduct a hearing without a jury to determine whether the defendant is mentally retarded. In the event the court finds, after the hearing, that the defendant is not mentally retarded, the court must, prior to commencement of trial, enter an order so stating, but nothing in this section shall preclude a defendant from presenting evidence of mental retardation at the guilt-innocence or the sentencing stages of the trial. If the court finds the probable cause is lacking to support the allegation that the defendant is mentally retarded, the court shall dismiss the matter without a hearing.
(E). If the court determines that probable cause exists to believe that the defendant is mentally retarded, the court shall hold a hearing to inquire into the defendant’s alleged mental retardation and shall give immediate notice of the inquiry to the district attorney and to the defendant’s counsel. The defendant shall have the right to present evidence and cross-examine any witnesses at the hearing. The court may appoint one or more psychiatrists or psychologists to examine the defendant. The court shall issue any ruling in the matter no later than 30 days from the date the hearing on the matter concludes.
(F). If the court appoints a psychiatrist or psychologist to examine the defendant, the court shall inform the psychiatrist or psychologist of the location of the defendant and of the purpose of the examination. The examiner shall have access to any available psychiatric or psychological report previously submitted to the court with respect to the mental condition of the defendant, including, if applicable, any reports regarding the defendant’s competency to stand trial or the defendant’s criminal responsibility. The examiner also shall have access to any available current mental health and medical records of the defendant.
(G). If the court appoints a psychiatrist or psychologist to examine the defendant, the examiner shall conduct a thorough examination of the defendant and shall submit a report to the court within 30 days of the examiner’s appointment. The report shall contain the examiner’s findings as to whether or not the defendant is mentally retarded and the facts, in reasonable detail, upon which the findings are based.
(H). In the event the court finds, after the hearing, that the defendant is mentally retarded, the court must, prior to commencement of trial, enter an order so stating. The commonwealth may appeal such an order as of right without seeking leave. Upon entering such an order the court must afford the commonwealth a reasonable period of time, which shall not be less than ten days, to determine whether to make an appeal from the order findings that the defendant is mentally retarded. The taking of an appeal by the commonwealth stays the effectiveness of the court’s order and any order setting a date for trial. If an appeal is taken, it shall be entered directly on the docket of the supreme judicial court. No costs or attorney’s fees shall be assessed against the commonwealth in connection with an interlocutory appeal of an order which finds that the defendant is mentally retarded unless the defendant prevails and the supreme judicial court determines that the appeal was frivolous. Unless the order is reversed on an appeal, the capital portion of the murder indictment shall be dismissed, the indictment charging first-degree murder shall remain, and the jury shall not be death-qualified.
Section 4. (A). The district attorneys shall develop a uniform set of protocols for the exercise of prosecutorial discretion in the potential capital murder cases in the commonwealth. These protocols shall address both the substantive factors that should influence this exercise of prosecutorial discretion, and the procedures that should be followed in connection with this exercise of prosecutorial discretion.
(B). The attorney general, pursuant to section 27 of chapter 12, shall review all exercises of prosecutorial discretion by district attorneys in potential capital murder cases, and shall take appropriate actions to ensure the consistent application of the death penalty throughout the commonwealth. The attorney general shall develop a set of protocols for this review, which will address both the substantive factors should influence this review and the procedures that should be followed in connection with this review.
Section 5. (A). An indigent defendant indicted for capital murders shall be provided with at least two court appointed defense attorneys to represent him at trial. A non-indigent defendant indicted for capital murder who can afford only one privately retained defense attorney shall be provided with a second, court appointed defense attorney to represent him at trial. Both of the defense attorneys at the trial of a capital murder case, whether such attorneys are appointed or privately retained, shall be required to be certified as capital-case qualified, unless the superior court allows the defendant’s request for a waiver of certification on the ground, or for the court determines as a matter of discretion, that such waiver is consistent with the need for high-quality defense representation at trial in the particular capital murder case.
(B). A defendant indicted for capital murder may waive his constitutional right to counsel, and represent himself. If, after a hearing, the trial judge permits a defendant to waive his constitutional right to counsel, the court shall appoint at least two attorneys to serve as standby counsel. All such standby counsel shall be required to be certified as capital-case qualified, unless the trial judge approves the appointment of a non-certified standby counsel on the ground that such an appointment is consistent with the need for high-quality performance as standby counsel during trial in the particular capital murder case.
(C ). An indigent defendant who is convicted of capital murder and sentenced to death, shall be provided with an appointed defense attorney to represent him at all post-trial proceedings, including the direct appeal as well as any state or federal post-conviction proceedings. This appointed defense attorney, for post-trial proceedings, shall not be one of the same attorneys who represented the defendant at his capital murder trial, unless a single justice of the supreme judicial court approves the defendant’s request for waiver of this requirement on the ground that such waiver is consistent with the need for high-quality defense representation in post-trial proceedings in the particular capital murder case.
(D). Any defense attorney who represents, in a post-trial proceeding, a defendant who has been convicted of capital murder and sentenced to death, whether such defense attorney is appointed or privately retained, shall be required to be certified as capital-case qualified, unless a single justice of the supreme judicial court approves the defendant’s requires for a waiver of certification on the ground, or the single justice determines as a matter of discretion, that the particular defense attorney meets the standards for certification, and that such waiver is consistent with the need for high-quality defense representation in post-trial proceedings in the particular capital murder case.
Section 6. (A)(1). Before the trial of a defendant indicted for capital murder, the superior court shall examine carefully the aggravating circumstances that were identified by the commonwealth as a basis for the capital murder indictment, and the court may dismiss the capital portion of the murder indictment if such aggravating circumstances are not supported by legally sufficient evidence.
(2). In the event that the capital portion of the murder indictment is dismissed, the commonwealth may appeal that decision as of right without seeking leave. Upon entering such an order, the court must afford the commonwealth a reasonable period of time, which shall not be less than ten days, to determine whether to take an appeal from the order dismissing the capital portion of the murder indictment. The taking of an appeal by the commonwealth stays the effectiveness of the court’s order and any order setting a date for trial. If an appeal is taken, it shall be entered directly on the docket for the supreme judicial court. No costs or attorney’s fees shall be assessed against the commonwealth in connection with an interlocutory appeal of an order allowing a motion to dismiss the capital portion of the murder indictment unless the defendant prevails and the supreme judicial court determines that the appeal was frivolous.
(3). In the event that the capital portion of the murder indictment is dismissed or such a dismissal is affirmed on appeal, the indictment charging first-degree murder shall remain, and the jury shall not be death-qualified.
(B). At a trial for capital murder, the trial judge shall impanel a jury that is death-qualified unless the defendant elects, prior to jury selection in the guilty-innocence stage of the trial, to impanel a new jury for the sentencing phase of the trial pursuant to section 7 of this chapter. The death-qualified jury shall sit for both the guilt-innocence and the sentencing stages of the trial, unless the defendant elects to choose a second jury for the sentencing stage. If the defendant elects to have a new jury impaneled for the sentencing stage, that jury shall also be death-qualified. It shall be within the discretion of the trial judge to impanel a second jury for the sentencing stage before the start of the guilt-innocence stage. Should a second jury be so impaneled, the trial judge shall take whatever steps necessary, including sequestration, to ensure that the second jury remains impartial throughout the guilt-innocence stage.
(C ). In the event that the defendant waives his right to a jury trial at either the guilt-innocence or the sentencing stage of a capital murder trial, any reference in this chapter to the word jury should be understood to mean the superior court acting as a fact-finder.
(D). If the commonwealth’s capital murder indictment requires proof of prior criminal activity as described in sections 2(D)(5) or (6) of this chapter, the evidence shall be introduced in two phases of the guilt-innocence stage. In the first phase, the jury shall be presented with evidence relevant to the proof of sections 2(A), 2(B), 2(C), 2(D)(1), (2), (3), or (4), and the jury shall not be presented with evidence relating to prior crimes. Upon conclusion of the commonwealth’s evidence relevant to the first phase, and any defense thereto, the parties shall be permitted to present an argument to the jury, the trial judge will provide the jury with appropriate instructions, and the jury will be asked to deliberate and make findings on sections 2(A), 2(B), 2(C ), and 2 (D)(1), (2), (3), or (4). If the jury finds that the commonwealth has established beyond a reasonable doubt the existence of sections 2(A), 2(B), or 2(C ), the second phase of the guilt-innocence stage of trial shall commence with the presentation of evidence relevant to sections 2D(5) or (6), and any defense thereto, followed by argument, instructions, and deliberations. If the jury finds that the commonwealth has failed to carry its burden of proof as to sections 2(A), 2(B), or 2(C ), the capital murder portion of the murder indictment shall be dismissed, and the indictment charging first-degree murder shall remain.
Section 7. If, at the end of the guilt-innocence stage of the trial, the defendant is convicted of capital murder, the defendant shall have the right to request the selection of a new jury for the sentencing stages. If the defendant exercises this right, then the defendant will be deemed to have waived the issue of residual or lingering doubt about guilt, and the trial judge shall prohibit the defendant from raising or arguing that issue during the sentencing stage. The defendant may exercise this right prior to jury selection in the guilty-innocence stage of the trial, but the exercise of that right shall be binding on the defendant once the empanelment process begins.
Section 8. (A). At the guilt-innocence stage of the capital murder trial, and again at the sentencing stage, unless the issue of residual or lingering doubt is waived by the defendant, the jury may, if requested by the defense, be instructed about the following known limitations of human evidence, to the extent that such human evidence has been introduced in the particular case: (1) eyewitness testimony, even from a confident eyewitness, may be unreliable, especially in connection with extremely emotional events such as a murder, and should therefore be evaluated with great care; (2) cross-racial eyewitness identifications are often particularly unreliable; (3) statements made by a defendant while in police custody are not always inherently reliable, and should therefore be evaluated with care; (4) ideally, statements made by the defendant while in police custody should be contemporaneously audio- or video-recorded in their entirety, and the lack of such a recording should be considered when evaluating the reliability of such a statement; and (5) statements made by codefendants or informants, especially when the codefendant or informant receives or hopes to receive any benefit from the commonwealth, may be unreliable, and should therefore be evaluated with great care.
(B). Whether to give an instruction in any of the categories listed in section 8(A) of this chapter, and the particular wording of any such instruction, shall lie within the discretion of the trial judge.
Section 9. (A). The sentencing stage of the capital murder trial shall be for the presentation and consideration of mitigating evidence. The commonwealth shall not relitigate the existence of aggravating factors proved at the trial or otherwise present evidence, except, subject to the rules governing admission of evidence in the trial of a criminal action, in rebuttal of the defendant’s evidence. Subject to the rules governing the admission of evidence in the trial of a criminal action, the defendant may present any evidence relevant to mitigation, and the defendant shall not be precluded from introducing reliable hearsay evidence that is not otherwise precluded.
(B). At the beginning of the sentencing stage, where a new death-qualified jury has been selected, the prosecution shall be permitted to present otherwise admissible evidence to the new jury to the extent reasonably necessary to inform the new jury about the nature and circumstances of the crime, including each of the elements set forth in sections 2(A) through 2(D), inclusive, of this chapter that were found by the original jury at the guilt-innocence stage, and to allow the new jury to determine the appropriate weight to be given to these facts in deciding the sentence. The new jury shall be instructed that each of the elements of capital murder that were found by the original jury at the guilt-innocence stage shall be deemed established beyond a reasonable doubt for the purposes of the sentencing stage, but that any additional facts elicited by the prosecution at the sentencing stage that are not essential to the verdict of guilty of capital murder shall not be deemed established beyond a reasonable doubt. The new jury shall not be instructed or informed on the issue of whether or not the defendant contested guilt during the guilt-innocence stage.
(C). Notwithstanding section 3(p) of chapter 28B, only after the jury determines that the defendant should be sentenced to death, may a representative or representatives of the victim’s family and friends present a statement regarding the impact of the crime on family and friends. The impact statement shall be given in the presence of the defendant.
Section 10. (A). At the sentencing stage of the capital murder trial, as a prerequisite to the imposition of the death penalty, and unless the issue of residual or lingering doubt has been waived by the defendant pursuant to section (7)(A) of this chapter, the jury shall be required to find that there is “no doubt” about the defendant’s guilt of capital murder. In connection with this requirement, the jury shall be instructed that, even after finding the defendant guilty of capital murder beyond a reasonable doubt, it is possible that one or more jurors may still harbor a residual or lingering doubt about the defendant’s guilt, and that the existence of such doubt, whether held individually or collectively, is sufficient to preclude the imposition of the death penalty.
(B). A the sentencing stage of the capital murder trial, as a prerequisite to the imposition of the death penalty, and regardless of whether or not the defendant has waived the issue of residual or lingering doubt, the jury is required to find that there is conclusive scientific physical or other associative evidence reaching a high level of scientific certainty.
(C). The jury may not direct the imposition of a sentence of death unless it unanimously finds beyond a reasonable doubt that the aggravating factor or factors substantially outweigh the mitigating factor or factors established, if any, and unanimously determines that the penalty of death should be imposed. Any member or members of the jury who find a mitigating factor to exist may consider a factor regardless of the number of jurors who concur that the factor exists.
(D). If the court determines during the sentencing stage of the capital murder trial, because of a reasonable lapse of time or otherwise, that the deliberating jury is deadlocked as to the imposition of a death sentence, and it is apparent to the court that further instruction and deliberations would not assist in the return of a verdict, the court shall dismiss the jury, and impose a sentence of imprisonment for life without the possibility of parole.
(E). When the jury has unanimously determined the defendant’s sentence it must be recorded on the docket and read to the jury, and the jurors must be collectively asked whether such is their sentence. Even though no juror makes any declaration in the negative, the jury must, if either party makes such an application, be polled and each juror separately asked whether the sentence announced by the foreman is in all respects his or her sentence. If, upon either the collective or the separate inquiry, any juror answers in the negative, the court must refuse to accept the sentence and must direct the jury to resume its deliberation. If no disagreement is expressed, the jury must be discharged from the case.
Section 11. (A). There is hereby established, as an independent commission in the judicial branch of the commonwealth, an independent scientific review advisory committee, hereinafter referred to as the advisory committee. The advisory committee shall consist of five members who shall be appointed by a majority vote of the supreme judicial court from a list of eight nominees submitted by the governor. Each such nominee shall be a recognized expert in the evaluation of forensic evidence. Advisory committee members shall each serve a term of three years, and the chief justice of the supreme judicial court shall designate one member as chairman. The advisory committee shall initiate a formal process to ensure the independent scientific review of physical or other associative evidence, as definite in section 10(B) of this chapter, in every capital murder case in which a sentence of death is imposed.
(B). The advisory committee shall have the responsibility for the drafting, adopting, and updating general policies relating to independent scientific review, establishing criteria for independent scientific review in particular cases, selecting independent forensic-science experts to conduct case-specific independent scientific review, and monitoring the ongoing effectiveness of independent scientific review. If the state police crime laboratory or the Boston police crime laboratory employs any appointed member of the advisory committee, that employee shall not participate in any independent scientific review or independent scientific review panel selection in any capital murder case with which the employee’s laboratory had any involvement.
(C). The advisory committee shall consider policies to require that all crime laboratories, medical-examiner offices, and forensic-service providers who are involved in any death-eligible homicide investigation or homicide trial in the commonwealth must be accredited by the appropriate accrediting organization, if available. The advisory committee shall also promulgate rules or regulations with respect to the qualifications of individuals who work for crime laboratories, medical-examiner offices, and forensic-service providers in connection with any death-eligible homicide investigation or homicide trial in the commonwealth. With respect to any rule or regulation that relates to the accreditation of medical-examiner offices, and the certification of individuals who work for such offices, the advisory committee shall work in coordination with members of the commission on medicolegal investigation as constituted under section 184 of chapter 6.
(D). Notwithstanding the above, counsel for a defendant indicted for capital murder shall not be prohibited from utilizing any person, otherwise qualified, as an expert in connection with the investigation, hearing, or trial of a criminal case.
(E). At the conclusion of any capital murder trial where the defendant is convicted and sentenced to death, the advisory committee shall appoint an independent scientific review panel hereinafter referred to as the panel. The panel shall consist of not less than three and not more than five members. The panel shall include independent members from each forensic-science sub-discipline relevant to the particular case. Members of the panel shall be selected from among recognized experts not employed by the commonwealth’s or city crime laboratories. The panel may be comprised of independent experts employed by federal or state laboratories outside the commonwealth, academics, or other suitable experts.
(F). The panel shall conduct a thorough review of the collection, handling, evaluation, analysis, preservation, and interpretation of, and testimony and all other matters relating to, physical or other associative evidence in the particular case. This review shall be conducted pursuant to the policies, rules, and regulations adopted by, and using the review criteria established by, the advisory committee. This review shall, at a minimum, address the following questions: (1) whether the integrity of the evidence was sufficient to allow for consideration of subsequent procedures; (2) whether the appropriate guidelines and standards of practice were followed for the crime scene and autopsy procedures; the recognition, documentation, recovery, packaging, and preservation of the evidence; the examination and comparison of evidence; the interpretation and reporting of results; and the reconstruction by experts relying on other examinations and reports; (3) whether any new research or novel science played a role, and if so, was it appropriately documented and provided for review under the relevant legal standard; and (4)whether the retrospective independent scientific review process, using contemporary standards, revealed any specific scientific or technical issues requiring additional information, or suggesting that errors may have been made. At the conclusion of its review, the panel shall issue a written report that contains, at a minimum, the panel’s answers to each of the four questions listed above. A copy of the panel’s report shall be provided, in a timely fashion, to the trial judge, the district attorney who prosecuted the defendant or his successor, the defense attorneys, the attorney general, and to the supreme judicial court.
Section 12. (A). After the trial of a defendant convicted of capital murder and sentenced to death, the trial judge may exercise the authority granted by rule 25(b)(2) of the rules of criminal procedure to set aside the verdict of guilt of capital murder and the corresponding death sentence, and direct the entry of a verdict of guilt of first-degree murder, whenever the trial judge finds the death sentence to be inappropriate on any basis in fact or law, including the trial judge’s disagreement with the exercise of capital sentencing discretion by the jury.
(B). All cases in which the death sentence is imposed shall be subject to mandatory appellate review by the supreme judicial court. The defendant may not waive such appellate review. As part of this mandatory appellate review, in addition to the review of any legal issues properly raised, the supreme judicial court shall exercise the substantive review authority granted by section 33E of chapter 278 to set aside the verdict of guilt of capital murder and the corresponding death sentence, or direct the entry of a verdict of guilt of first-degree murder, whenever the supreme judicial court finds that the verdict was against the law or the weight of the evidence, or because of newly discovered evidence, or for any other reason that justice may require. The supreme judicial court shall exercise this substantive review authority, and set aside the death sentence, whenever it determines that the death sentence is inappropriate on any basis in fact or law, including the court’s disagreement with the exercise of capital sentencing discretion by the jury.
Section 13. (A). Immediately upon the pronouncing of the sentence of death upon a person convicted of capital murder, the execution of that death sentence shall automatically be stayed pending mandatory appellate review by the supreme judicial court under section 33E of chapter 278, and under section 12(B) of this chapter. Unless otherwise ordered by the supreme judicial court, when the court has affirmed the conviction of capital murder and the sentence of death, the stay shall remain in effect only until the supreme judicial court issues its rescript, pursuant to section 8 of chapter 211, whereupon the stay shall be automatically revoked.
(B). Immediately upon the pronouncing of the sentence of death upon a person convicted of capital murder, and immediately upon the revocation of the stay of execution of such a sentence under section 4 of chapter 279, section 13(A) or section 17(D) of this chapter, and that such stay has been revoked under these sections, and shall at the same time transmit to the superintendent of the state prison a certified copy of the warrant. Such warrant shall be directed to the superintendent commanding him to cause execution to be done in accordance with the provisions of such sentence. The clerk of the court shall, upon revocation under section 4 of chapter 279, section 13(A) or section 17(D) of this chapter, of the stay of execution of the sentence, make out and deliver to the governor a certified copy of the whole record of the conviction and sentence, including any rescripts from the supreme judicial court.
Section 14. The sheriff of the county in a jail where a prisoner convicted of capital murder and sentence to death is confined, or a deputy designated by the sheriff, within ten days after receipt by the sheriff of the warrant for the execution of such sentence shall, at a time chosen by the sheriff, convey such prisoner to the state prison and deliver him, with the warrant in either case, to the superintendent thereof or to the officer performing his duties and such prisoner shall be placed in a cell provided for the purpose . Within 30 days thereafter, the superintendent or officer performing his duties shall cause the prisoner to be examined by a psychiatrist for the purpose of rendering a written and signed opinion as to whether or not the prisoner is psychologically fit to be transferred from special confinement to confinement with the general prison population, and in the case of a female, to the general prison population women’s correctional facility, with full participation in the educational and work programs, within the prison, afforded prisoners under a sentence other than death. Upon receipt of the psychiatric opinion, and other pertinent information, the superintendent or officer performing his duties may transfer the prisoner to confinement with the general prison population with the right of full participation in the privileges afforded other prisoners under a sentence other than death. If the superintendent, or officer performing his duties, does not so transfer the prisoner, he shall notify the prisoner of his decision forthwith, whereupon the prisoner may appeal the decision the decision within 14 days of the notification by giving notice to the superintendent, or officer performing his duties, on a form provided him at the time of the receipt of the notification of the adverse decision. Upon receipt of such notice, the superintendent or officer performing his duties shall notify the commissioner of correction forthwith whereupon the commissioner shall hold a hearing on the appeal within 20 days of receipt of notice that such appeal has been made. The commissioner or his appointee shall conduct the hearing and shall render a decision granting or denying the appeal within five days following the date of the hearing. A prisoner who is denied such transfer by the superintendent, or officer performing his duties, shall remain in a cell for the purpose of the execution of his sentence, and shall thereafter be kept therein, unless an appeal made by him of the adverse decision is granted, until the sentence of death is executed upon him, and no person shall be allowed access to him without an order of the court, except the officers and employees of the prison, his counsel, such physicians, priest, or minister of religion as the superintendent may approve and members of the prisoner’s family who are identified to the satisfaction of the superintendent . Any prisoner confined to a cell for the purpose of the execution of his sentence shall have his record reviewed annually for the purpose of determining whether or not the prisoner should be placed in the general population, and shall be entitled to a hearing, as provided above, on each adverse decision. Notwithstanding the foregoing, the superior court may make any order relative to the custody of a prisoner confined in the state prison under this section if the prisoner is granted a new trial.
Section 15. The sentence of death shall be executed by the superintendent of the state prison, or by a person acting under his direction, not earlier than 20 days nor later than 30 days after service upon the superintendent, or officer performing his duties, of a certificate of the clerk of the court that the stay of the execution of the sentence has been revoked under section 4 of chapter 279, section 13(A) or section 17(D) of this chapter, unless the governor pardons the crime, commutes the punishment therefor or respites the execution or the execution is otherwise delayed by process of law. If the execution is respited or stayed by process of the law, the sentence of death shall be executed within the week beginning on the day next after the day on which the term of respite or stay expires. The sentence of death shall be executed upon such day within the limits of time provided in the section as the superintendent elects; but no previous announcement thereof shall be made, except to such persons as may be permitted to be present in accordance with section 20 of this chapter.
Section 16. The punishment of death shall be executed by the administration of a continuous intravenous injection of a lethal substance or substances in a quantity sufficient to cause death until a licensed physician, according to accepted standards of medical practice, pronounces death. The commissioner of correction shall determine the lethal substance or substances to be administered, and qualified personnel selected by the superintendent of the facility where the execution occurs shall administer them. The punishment of death shall be executed within an enclosure or building for that purpose at a state prison facility. Notwithstanding any general or special law or regulation to the contrary, administration of the injection does not constitute the practice of medicine, nursing or pharmacy, and the superintendent may obtain and employ the drugs necessary to carry out the provisions of this section.
Section 17. (A). A defendant convicted of capital murder and sentenced to death shall be presumed to be mentally competent to be executed. It shall be the defendant’s burden to rebut that presumption and to establish, by a preponderance of the evidence, that he is mentally incompetent to be executed.
(B). If, at any time prior to execution, a defendant convicted of capital murder and sentenced to death, appears to be mentally incompetent to be executed, the superintendent of the prison or the sheriff having custody of the defendant, the defendant’s legal counsel, or a psychiatrist or psychologist who has examined the defendant, shall give notice of the apparent mental incompetence to be executed to the superior court in the county where the defendant was tried.
(C). Upon receiving notice pursuant to section 17(B) of this chapter, the superior court shall determine, based on the notice and any supporting information, any information submitted by the district attorney who prosecuted the defendant, or by that district attorney’s successor, and the record in the case, including previous hearings and orders, whether probable cause exists to believe that the convict is mentally incompetent to be executed. If the court finds that probable cause exists to believe that the defendant is mentally incompetent to be executed, the court shall hold a hearing to determine whether the defendant is mentally incompetent to be executed. If the court does not find that probable cause of that nature exists, the court may dismiss the matter without a hearing.
(D). If, after receiving notice under section 17(B) of this chapter, the court finds probable cause to believe that the defendant is mentally incompetent to be executed, the court shall hold a hearing to inquire into the defendant’s mental incompetence and shall give immediate notice of inquiry to the district attorney who prosecuted the case, or that district attorney’s successor, and to the defendant’s counsel. If the defendant does not have counsel, the court shall appoint an attorney to represent the defendant in the inquiry. The defendant shall have the right to present evidence and cross-examine any witnesses at the hearing. The court may appoint one or more psychiatrists or psychologists to examine the defendant. The court shall issue any ruling in the matter no later than 90 days from the date of the notice given under section 17(B) of this chapter. Execution of the defendant’s sentence shall be stayed pending completion of the inquiry, and until such time as the court decides the matter. If the defendant is found not to be mentally incompetent to be executed, the stay of his sentence shall be revoked immediately.
(E). If the court appoints a psychiatrist or psychologist to examine the defendant, the court shall inform the psychiatrist or psychologist of the location of the defendant and of the purpose of the examination. The examiner shall have access to any available psychiatric or psychological report previously submitted to the court with respect to the mental condition of the defendant, including, if applicable, any reports regarding the defendant’s competency to stand trial or the defendant’s criminal responsibility. The examiner also shall have access to any available current mental health and medical records of the defendant.
(F). If the court appoints a psychiatrist or psychologist to examine the defendant, the examiner shall conduct a thorough, in person examination of the defendant and shall submit a report to the court within 30 days of the examiner’s appointment. The report shall contain the examiner’s findings as to whether the defendant has the mental capacity to understand the nature of the death penalty and why it was imposed upon the defendant and the facts, in reasonable detail, upon which those findings are based.
(G). If, at the conclusion of a hearing pursuant to section 17(D) of this chapter, the court determines that the defendant is not mentally incompetent to be executed, the court shall enter an order recording that determination. A copy of the order shall be delivered to the clerk of the superior court and to superintendent of the prison or the sheriff having custody of the defendant. Upon receipt of the order, the clerk shall notify the defendant and the district attorney that the stay of the defendant’s sentence has been revoked and his execution may be carried out in accordance with the warrant.
(H). If, at the conclusion of a hearing pursuant to section 17(D) of this chapter, the court determines that the defendant is mentally incompetent to be executed, the court shall suspend the execution until further order. The court shall enter an order recording the determination. A copy of that order shall be delivered to the clerk of the superior court and to superintendent of the prison or the sheriff having custody of the defendant. The court shall also send an order suspending the defendant’s sentence to the commissioner of correction, and to the superintendent of the prison or the sheriff having custody of the defendant. Any time thereafter when the superior court is provided sufficient reason to believe that the defendant is no longer mentally incompetent to be executed, the court shall again determine, pursuant to section 17(D) of this chapter, whether the defendant is mentally incompetent to be executed. Proceedings pursuant to this section may continue to be held at such times as the superior court orders for the remainder of the defendant’s life. Any defendant, who is found not mentally competent to be executed, shall be imprisoned in an appropriate correctional facility to be determined by the commissioner of correction.
(I). The commonwealth and the defendant shall have the right to appeal any adverse order which determined the defendant’s competency to be executed. Upon entering such an order the court must afford the parties a reasonable period of time, which shall not be more than ten days, to determine whether to take an appeal from such an order. The taking of an appeal by either party stays the effectiveness of the court’s order. If an appeal is taken, it shall be entered directly on the docket of the supreme judicial court. No costs or attorney’s fees shall be assessed against the commonwealth in connection with any appeal of such an order unless the defendant prevails and the supreme judicial court determines that the appeal was frivolous.
(J). If a person convicted of a capital murder and sentenced to death is, at the time when the death sentence is to be imposed, after examination by a physician, found by the superior court to be pregnant, the court shall stay the execution of the sentence upon her until it finds that she is no longer pregnant. When the defendant is no longer pregnant, the stay shall be revoked, and her execution shall be carried out in accordance with this chapter.
Section 18. The governor may from time to time respite the execution of a sentence of death for stated periods so long as he may consider it necessary to afford him an opportunity to investigate and consider the facts of the case for the purpose of considering whether or not to pardon the defendant or commute his death sentence.
Section 19. The supreme judicial court, or a single justice thereof, may stay the execution of a sentence of death from time to time for stated periods, pending the final determination of any judicial question arising in or out of the case in which the sentence is imposed, or to address a recommendation from the death penalty review commission that the execution of a death sentence be stayed.
Section 20. There shall be present at the execution of the sentence of death, in addition to the superintendent, deputy and such officers of the state prison as the superintendent deems necessary, the commissioner of correction or his representative, the person performing the execution under the direction of the superintendent, if any, the prison physician, the chief medical examiner, and one other physician to be selected y the superintendent. The physicians present shall be the legal witnesses of the execution. There may also be present, upon the request of the prisoner who is to be executed, the immediate members of the prisoner’s family. There may also be present, upon request of the prisoner, a priest, minister, rabbi or other representative of the prisoner’s religion. There may also be present the sheriff of the county where the prisoner was convicted, or his deputy, and, with the approval of the superintendent, not more than five other persons.
Section 21. There shall be a post mortem examination by the chief medical examiner, or his designee, of the body of every prisoner executed in conformity with the sentence of the court.
Section 22. When the superintendent has executed the sentence of death upon a prisoner in obedience to a warrant from the superior court, he shall forthwith make return thereof under his hand, with the doings thereon, to the office of the clerk of the superior court.
Section 23. (A). There is hereby established, as an independent commission in the executive branch of the commonwealth , a death penalty review commission, hereinafter called the commission, to consist of seven ex officio members or their designees: the attorney general, the secretary of public safety, the chief counsel to the committee for public counsel services, the chief medical examiner, the chief justice for administration and management, the president of the Massachusetts Association of Criminal Defense Attorney, and the Massachusetts District Attorneys’ Association, or their designees. The commission shall also include four additional persons to be appointed by the governor, including one of whom is a fellow or member of the American Academy of Forensic Sciences. The governor shall designate one member as chairman, who shall serve as chairman for three years unless sooner removed at the pleasure of the governor. The members appointed to the commission by the governor shall serve terms of three years and shall serve terms of three years and shall serve at the pleasure of the governor.
(B). The purpose of the death penalty review commission shall be to: (1) investigating any claim of substantive error made by any person subject to a death sentence, i.e., any claim either that the person did not commit the capital murder for which the death sentence was imposed, or that the person was legally ineligible for the death penalty; and (2) investigating the causes of any such substantive errors that may be found to have occurred at trial in any capital murder case.
(C). A defendant convicted of capital murder and sentenced to death may file a petition requesting the commission to review his case and sentence at any time up and until seven days before the date of the defendant’s scheduled execution. A copy of the record, the briefs, and appendices submitted to the supreme judicial court on appeal shall accompany the petition.
(D). A defendant who has not been sentenced to death, or whose death sentence has not been upheld on appeal, shall not be eligible to petition the commission for review of his case and sentence. For the purposes of 28 U.S.C. section 2244(d)(2), a properly filed petition, by an eligible defendant, requesting the commission to review his case and sentence, may be considered an application for state post-conviction or other collateral review with respect to the pertinent judgment or claim. The filing of a petition by such a defendant requesting that the commission review his case and sentence does not, by itself, stay the execution of his sentence.
(E). Upon receiving a petition from a defendant convicted of capital murder and sentenced to death, the commission shall review the request to determine if the defendant has made a prima facie showing of any claim contained in section 23(B)(1) of this chapter. If a majority of the commission concludes that the defendant has made such a prima facie showing to warrant further review, the chairman shall issue a written decision to that effect. The commission’s decision shall also include a recommendation on whether or not the execution of the defendant’s sentence should be stayed pending the commission’s full review. The chairman shall give immediate notice of the commission’s decision and recommendation to the district attorney who prosecuted the case, or that district attorney’s successor, and to the defendant’s counsel. When the commission recommends that a stay be granted, the defendant may request, from a single justice of the supreme judicial court, that the execution of his sentence be stayed pending the commission’s full review. The defendant’s request shall be accompanied by the commission’s decision under section 23(E) of this chapter, and the commission’s recommendation for a stay.
(F). If a majority of the commission determines that the defendant’s petition seeking the commission’s review of his case and sentence fails to make a prima facie showing of any claim contained in section 23(B)(1) of this chapter, the chairman shall issue a written decision to that effect, and deny the defendant’s request for review. The chairman shall give immediate notice of that decision to the district attorney who prosecuted the case, or that district attorney’s successor, and to the defendant’s counsel. If the commission grants further review, and upon further review, a majority of the commission finds that the defendant has not demonstrated the existence of any claim contained in section 23(B)(1) of this chapter, the chairman shall issue a decision to that effect with the same notice as provided for in this section. Upon issuance of such a decision, any stay granted by a single justice of the supreme judicial court under section 23(E) of this chapter shall automatically be revoked without further proceedings.
(G). In connection with the investigation of a claim of substantial error in a capital murder case, the commission is authorized to hire all necessary staff, including experts; to inspect evidence and other tangible materials connected with the crime; to issue subpoenas; and to request the assistance of the state or local police to carry out searches or make arrests. If the commission concludes that any capital murder case may involve a substantive error, the commission shall refer the case to the superior court with a recommendation for further judicial review. In conjunction with its referral to the superior court, the commission shall issue a public report detailing its findings, including, when appropriate, recommendations for reforms to the commonwealth’s capital punishment system.
(H). If a defendant submits a second or subsequent request, or requested amendment to a prior request, for the commission’s review that raises a claim that the commission has previously reviewed and denied, or one that it has previously reviewed and referred to the superior court, the commission shall deny the request for review in the same manner it would deny a request under section 23(F) of this chapter, where the defendant’s petition fails to make a prima facie showing of any claim contained in section 23(B)(1) of this chapter. If the defendant’s second or subsequent request for the commission’s review, or a request to amend a prior request, raises a claim that would fall within the requirements of 23(B)(1), but is one that could have been presented in a prior petition had the defendant or his counsel exercised due diligence, the commission shall deny the request for review in the same manner it would deny a request under section 23(F) of this chapter, where the defendant’s petition fails to make a prima facie showing of any claim contained in section 23(B)(1).
SECTION 2. Section 8 of chapter 211D of the General Laws, as appearing in the 2002 Official Edition, is hereby amended by inserting, after section 8, the following section: –
Section 8A. (1). A list of “capital-case qualified” defense attorneys shall be established and maintained by the committee, pursuant to policies and procedures established by the supreme judicial court. This list should include only those defense attorneys who meet rigorous standards of experience, capital-case training, and proven exemplary performance.
(2). A “capital-case qualified” defense attorney shall have, at a minimum, the following experience, unless the superior court determines, after a hearing, that any of the below criteria should be waived or modified.
(a) Eight years or more of criminal litigation experience;
(b) Experience with plea bargaining in homicide cases;
(c) Experience with expert testimony and scientific evidence (including medical, forensic, psychiatric, pathological, and DNA evidence);
(d) Experience with all aspects of criminal litigation (including pre-trial, trial, appellate, and post-conviction);
(e) Lead counsel in at least ten felony jury trials in the past ten years, five of which involved homicide indictments, that resulted in a verdict, decision or hung jury;
(f) Prior capital murder case experience.
SECTION 3. Section 9 of chapter 211D of the General Laws, as appearing in the 2002 Official Edition, is hereby amended by inserting, after section 9, the following section: –
Section 9A. The committee shall establish standards for the public and private counsel divisions for training in the defense of capital murder cases, which shall include but not be limited to:
(1) All relevant state, federal, and international law;
(2) Investigative techniques and strategies;
(3) Investigative support, including investigation of mitigation evidence;
(4) Arrest, interrogation, evidence-collection, evidence-handling, evidence-testing, and chain-of-custody issues;
(5) Issues relating to human evidence, including the special problems of line-ups, eyewitness testimony, informant testimony, and defendant statements resulting from interrogation;
(6)Issues relating to expert testimony and scientific evidence, including medical, forensic, psychiatric, pathological, and DNA evidence;
(7) Issues relating to exculpatory evidence in possession of the prosecution;
(8) Issues relating to the defendant’s prior criminal history;
(9) Issues related to “tunnel vision” and “confirmatory bias”;
(10) Pleading and motion practice;
(11) Pre-trial strategies;
(12) Capital murder jury selection;
(13) Trial preparation:
(14) Coordination of guilt-innocence and sentencing strategies;
(15) Preserving issues for appellate and federal habeas review;
(16) Presentation of mitigating evidence:
(17) Communicating effectively with the defendant, his family and friends; and
(18) Dealing with a potentially disruptive or recalcitrant defendant.
SECTION 4. Section 4 of chapter 279 of the General Laws, as appearing in the 2002 Official Edition, is hereby amended by striking out, in line 3, the words “section sixty-one in case of a capital crime.” and replacing them with the following:– “sections 13(A), 17(D) and 23(E) of chapter 279A in the case of a conviction for capital murder where the defendant has been sentenced to death.”
SECTION 5. In addition to the provisions of section 6, clause (11) of chapter 4, in the event that the death penalty in this chapter is held to be unconstitutional by the supreme judicial court or by the United States supreme court, any person convicted of capital murder and sentenced to death shall be sentenced to life in prison without the possibility of parole.
SECTION 6. Sections 57 through 71 of chapter 279 and section 6 of chapter 113 are hereby repealed.
Rejected
CLERK 39
WORKFORCE DEVELOPMENT AND JOB TRAINING
Mr. Tolman and Ms. Flanagan move to amend the bill (Senate, No. 2210) by striking out the following words in Section 17, “The department shall be authorized, subject to appropriation, to retain a portion of the revenues received by the commonwealth under this section for the following purposes: to assist ex-offenders in obtaining and maintaining employment, training and auditing requestors described in subsection (a) of section 172, providing education and assistance regarding the correction of criminal records and to operate and maintain the public safety information system and the criminal records review board,” and inserting in place thereof the following:-
“The department shall retain a portion of the revenues received by the commonwealth under this section for the following purposes: to assist ex-offenders in obtaining and maintaining employment, including but not limited to, workforce development training and other applicable training programs, training and auditing requestors described in subsection (a) of section 172, providing education and assistance regarding the correction of criminal records, including but not limited to training judges, providing the necessary information to employers and other applicable person in possession of an applicant’s criminal offender record information, and to operate and maintain the public safety information system and the criminal records review board.”
CLERK 40
WITHDRAWN
Rejected
CLERK 41
POST RELEASE SUPERVISION AND SUBSTANCE ABUSE TREATMENT
Mr. Tolman and Ms. Flanagan move that the bill, (Senate No. 2210), be amended in Section 48, by inserting after the words “shall reduce the period of time in which such individual is subject to post-release supervision,” the following new language:-
“The regulations shall also include guidelines to establish a substance abuse treatment program that individuals may take part in as a mandatory requirement of their post-release supervision.”
ADOPTED
CLERK 42
SUBSTANCE ABUSE EDUCATION IN PRISONS
Mr. Tolman and Ms. Flanagan move to amend the bill (Senate, No. 2210) by inserting at the end thereof the following new section:-
SECTION XX. “The executive office of public safety and the department of correction, in conjunction with the department of public health, will promulgate regulations to create a substance abuse education program in state prisons and houses of corrections. Such program shall focus on, but not be limited to, screening inmates for substance use disorders, preparing inmates with substance use disorders for reentry into the community, providing training on obtaining housing, employment, and the necessary substance abuse treatment once an inmate is released.”
ADOPTED
CLERK 43
SEX OFFENDER REGISTRATION AT HOMELESS SHELTERS
Messrs. Timilty, Morrissey, and Hedlund moves that the bill, Senate 2210, be amended by inserting the following new sections:-
SECTION XX. Section 178C of chapter 6 of the General Laws, as so appearing, is hereby amended in line 33 by inserting after the word “address” the following words:--
“, and specifically excluding homeless shelters.”
SECTION 2. Section 178F of Chapter 6, as so appearing, is hereby amended by inserting after the first sentence the following new sentence:-
“It shall be unlawful for any sex offender who is required to register pursuant to sections 178C to 178P, inclusive, to list a homeless shelter as his residence, primary address, or secondary address.”
Said section is further amended by striking out the following:-
“A sex offender who lists a homeless shelter as his residence shall verify registration data every 45 days with the board by mailing to the board on a form approved by the board and signed under the pains and penalties of perjury the sex offender’s name, date of birth, primary address, any secondary addresses and work address. A homeless shelter receiving state funding shall cooperate in providing information in the possession of or known to such shelter; provided, however, that such request for information shall be limited to that which is necessary to verify an offender’s registration data or a sex offender’s whereabouts. A shelter that violates the provisions of this paragraph shall be punished by a fine of $100 a day for each day that such shelter continues to violate the provisions of this paragraph.”
SECTION 3. Section 178F1/2 of Chapter 6, as so appearing, is hereby amended by inserting after the first sentence the following new sentence:-
“It shall be unlawful for any sex offender who is required to register pursuant to sections 178C to 178P, inclusive, to list a homeless shelter as his residence, primary address, or secondary address.”
Said section is further amended by striking out the following:-
“Such sex offender who lists a homeless shelter as his residence shall appear in person at such local police department every 45 days to verify, under the pains and penalties of perjury, that the registration data on file remains true and accurate. A homeless shelter receiving state funding shall cooperate in providing information in the possession of or known to such shelter, when a request for information is made to such shelter by the board or such local police department, provided; however, that such request for information shall be limited to what is necessary to verify an offender’s registration data or a sex offender’s whereabouts. A shelter that violates the provisions of this paragraph shall be punished by a fine of $100 a day for each day that such shelter continues to violate the provisions of this paragraph.”
ADOPTED
CLERK 43.1 FURTHER
SEX OFFENDER REGISTRATION AT HOMELESS SHELTERS
Messrs. Petruccelli, Timilty, Morrissey, and Hedlund move that the bill, Senate 2210, be amended by inserting after Section 27 the following sections:-
SECTION 27A. Section 178F of Chapter 6, as so appearing, is hereby amended by striking out, in lines 14 to 15, the words “A sex offender who lists a homeless shelter as his residence shall verify registration data every 45 days” and inserting in place thereof the following words: - A homeless sex offender shall verify registration data every 30 days.
SECTION 27B. Section 178F½ of Chapter 6, as so appearing, is hereby amended by striking out, in lines 14 to 15, the words “Such sex offender who lists a homeless shelter as his residence shall appear in person at such local police department every 45 days” and inserting in place thereof the following words: - A homeless sex offender shall appear in person at such local police department every 30 days.
SECTION 28C. Chapter 6, as so appearing, is hereby amended by inserting, after section 178F½, the following section:-
Section 178F ¾. A homeless sex offender shall wear a global positioning system device, or any comparable device, administered by the commissioner of probation.
And by inserting after section 67 the following section:-
SECTION 67A. Notwithstanding any general or special law to the contrary, section 178F¾ of chapter 6 of the General Laws shall apply to a conviction for a sex offense, as defined in section 178C of chapter 6, or an adjudication as a youthful offender or as delinquent juvenile by reason of a sex offense, as defined in section 178C of chapter 6, which occurs after the effective date of this act.
Rejected
CLERK 44
Ensuring the Accuracy and Relevance of Criminal History Records
Ms. Chang-Díaz moves to amend the bill (Senate, No. 2210), in section 14, by striking out lines 194 through 209, and inserting in place thereof the following text:-
“Section 171A. In connection with any decision regarding employment, volunteer opportunities, housing or professional licensing, a person in possession of an applicant’s criminal offender record information shall provide the applicant with the criminal history record in the person’s possession, whether obtained from the department or any other source, (a) prior to questioning the applicant about his criminal history and (b) prior to making any decision adverse to the applicant on the basis of his criminal history; provided, however, that if the person has provided the applicant with a copy of his criminal offender record information prior to questioning the person is not required to provide the information a second time prior to making an adverse decision based on this information. Prior to making any decision adverse to an applicant on the basis of his criminal history, the requestor shall provide the subject with the opportunity to dispute the accuracy and relevance of the criminal history record in the person’s possession, whether obtained from the department or any other source. Failure to provide criminal history information to the individual in accordance with this section or failure to provide an opportunity to dispute the accuracy and relevance of that information may subject the offending person to investigation, hearing and sanctions by the board. Nothing in this section shall be construed to prohibit a person from making an adverse decision on the basis of an individual’s criminal history except as otherwise provided under chapter 151B or to provide or permit a claim of an unlawful practice under chapter 151B or an independent cause of action in a court of civil jurisdiction for a claim arising out of an adverse decision based on criminal history except as otherwise provided under chapter 151B.”
And moves to further amend the bill (Senate, No. 2210), in section 16, by striking out lines 293 through 302, and inserting in place thereof the following text:-
“In connection with any decision regarding employment, volunteer opportunities, housing or professional licensing, a person in possession of an applicant’s criminal offender record information shall provide the applicant with the criminal history record in the person’s possession, whether obtained from the department or any other source, (a) prior to questioning the applicant about his criminal history and (b) prior to making any decision adverse to the applicant on the basis of his criminal history; provided, however, that if the person has provided the applicant with a copy of his criminal offender record information prior to questioning the person is not required to provide the information a second time prior to making an adverse decision based on this information. Prior to making any decision adverse to an applicant on the basis of his criminal history, the requestor shall provide the subject with the opportunity to dispute the accuracy and relevance of the criminal history record in the person’s possession, whether obtained from the department or any other source. Failure to provide criminal history information to the individual in accordance with this section or failure to provide an opportunity to dispute the accuracy and relevance of that information may subject the offending person to investigation, hearing and sanctions by the board. Nothing in this section shall be construed to prohibit a person from making an adverse decision on the basis of an individual’s criminal history except as otherwise provided under chapter 151B or to provide or permit a claim of an unlawful practice under chapter 151B or an independent cause of action in a court of civil jurisdiction for a claim arising out of an adverse decision based on criminal history except as otherwise provided under chapter 151B.”
Rejected
CLERK 45
Criminal History Systems Board
Mr. Tolman moves that the bill, Senate Number 2210, be amended by striking Section 6 in its entirety and further moves that the following new text be inserted in place thereof:-
“SECTION 6. Section 168 of said chapter 6, as so appearing, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-
There shall be a criminal history systems board, hereinafter called the board, consisting of the following persons: the secretary of public safety and security, who shall serve as chairman, the secretary of labor and workforce development, the attorney general, the chairperson of the Massachusetts sentencing commission, the chief counsel for the committee for public counsel services, the chairman of the parole board, the commissioner of the department of correction, the commissioner of probation and commissioner of the department of youth services and the colonel of state police, or their designees, all of whom shall serve ex officio, and 10 persons to be appointed by the governor for a term of 3 years, 1 of whom shall represent the Massachusetts District Attorneys Association, 1 of whom shall represent the Massachusetts Sheriffs Association, and 1 of whom shall represent the Massachusetts Chiefs of Police Association, 1 of whom shall represent private users of criminal offender record information, 1 of whom shall be a victim of crime, 1 of whom shall be a provider of victim services, 2 of whom shall have experience in the areas of workforce development, ex-offender rehabilitation, or economic development, and 2 of whom shall be persons who have experience in issues relating to personal privacy. Upon the expiration of the term of any appointive member, his successor shall be appointed in a like manner for a term of 3 years.
Rejected
CLERK 46
Good conduct credit
Ms. Creem of Newton moves that S. 2210 be amended by adding the following two new sections:
SECTION 45A. Section 129D of said chapter 127, as so appearing, is hereby amended by striking out, in line 14, the words “two and one-half” and inserting in place thereof the following figure:- 3.
SECTION 45B. Section 129D of chapter 127, as so appearing, is hereby further amended by striking out, in line 19, the words “seven and one-half” and inserting in place thereof the following figure:- 10.
ADOPTED
Redraft CLERK 47
CERTIFICATES OF RECOVERY AND REHABILITATION
Mr. Tolman and Ms. Flanagan move to amend the bill (Senate, No. 2210) by adding the following three sections:-
SECTION XX.
The department of probation, in conjunction with the criminal history systems board shall conduct a study on rehabilitation. That study shall include an examination of:
(a) enabling a person convicted of or adjudicated delinquent by reason of any felony or misdemeanor charges in the Commonwealth or a person who has been charged with a crime in the Commonwealth but which charges did not result in a conviction to petition the superior court of the trial court department in the county in which he then resides for a certificate of rehabilitation, or a certificate of recovery and rehabilitation if the charges were a consequence of substance abuse, for ascertainment and declaration of the fact of his rehabilitation or recovery and rehabilitation if certain conditions are met, for example if the person: (1) has not been sentenced to incarceration since being discharged from a felony or misdemeanor or since the termination of any ancillary proceedings related to such felony or misdemeanor including, but not limited to, any period of probation, parole or continuation; (2) is not the subject of a probationary or parole term for the commission of any other felony or misdemeanor; (3) presents satisfactory evidence of 2 years residence in the commonwealth prior to the filing of the petition; (4) has demonstrated a period of rehabilitation, as provided in section 176C of the General Laws, and (5) in the case of a person seeking a certificate of recovery and rehabilitation, has completed a substance abuse treatment program approved by the bureau of substance abuse treatment services;
(b) the standard the petitioner must demonstrate his rehabilitation or recovery;
(c) the duration of rehabilitation required to be eligible for a certificate of rehabilitation or recovery;
(d) any recommended provision of notice of the filing of a petition to the district attorney of the county in which a petition is filed, to the district attorney of the county in which the petitioner was convicted of an offense, to the attorney general and to the governor;
(e) whether a petitioner for a certification of rehabilitation or recovery may be represented by counsel and whether the court shall appoint counsel for certain petitioners;
(f) whether the court in which the petition is filed may require such testimony as it deems necessary, and who should be required to produce and pay for the cost of production of all records and reports relating to the petitioner and the offense for which he was charged; (g) which information the court may request upon the filing of the application for a certificate, from the district attorney in which the petition was filed including, but not limited to: the place of residence of the petitioner; the criminal record of the petitioner as shown by the records of the Department of Justice; any representation made to the court by the petitioner; the conduct of the petitioner during his period of rehabilitation; and any other information the court may deem necessary in making its determination; (h) under what conditions a court should deny a petition for a certificate of rehabilitation or recovery; (i) under what conditions a court should issue a certificate of rehabilitation or recovery and whether such a certificate should become a part of the petitioner’s criminal offender record information;
(j) to whom the court should forward such a certificate and whether any recommendations should be included;
(k) whether such a certificate should be provided to any person lawfully seeking information relative to the offense for which a petitioner has received a certificate;
(l) whether any forms would be required to effectuate such a process and who should develop them;
(m) any notice requirements that are recommended for defendants or individuals being released from custody, discharged from probation or parole, or concluding substance abuse treatment;
(n) any other factors that may or may not be included within the determination of whether to issue a benefit granted by the awarding of such a certificate;
(o) any rights that an individual who has been denied the benefits of attaining a certificate of rehabilitation or recovery should have, including the right to appeal such a decision;
(p) what the appropriate forum should be for such an appeal; and
(q) any punishments that should be levied against an individual who fraudulently uses such a certificate.
The department shall report its findings to the clerks of the house and senate by July 1, 2010 who shall forward that report to the chairmen of the house committee on ways and means, the senate committee on ways and means and the joint committee on mental health and substance abuse.
SECTION XX.
The parole board shall conduct a study to determine the benefit and cost of establishing a substance abuse treatment program to be included as a requirement for individuals during a period of post-release supervision required by chapter 127A of the General Laws.
The board shall file the findings of its study by July 1, 2010 with the clerks of the house and the senate, who shall forward the report to the chairmen of the house committee on ways and means, the senate committee on ways and means, the joint committee on mental health and substance abuse and the joint committee on the judiciary.
SECTION XX.
The department of corrections, in consultation with the department of public health shall conduct a study on the establishment of jail diversion programs for nonviolent low-level offenders with substance use disorders. The study shall include, but not be limited to, the establishment of jail diversion programs, innovative ways for the courts to divert substance abusers from the criminal justice system into specified substance abuse treatment options and the cost estimates for implementing such a program.
The department shall file the findings of its study by July 1, 2010 with the clerks of the house and the senate, who shall forward the report to the chairmen of the house committee on ways and means, the senate committee on ways and means and the joint committee on mental health and substance abuse.
ADOPTED
Redraft CLERK 48
TECHNICAL AMENDMENTS
Ms. Creem move to amend the bill (S.2210) by striking sections 52, 53, 54, 55, 56, & 57 and inserting in place thereof the following new section:-
SECTION 52. Section 100A of chapter 276 is hereby amended by striking the first paragraph and inserting in place thereof the following:-
Section 100A. Any person having a record of criminal court appearances and dispositions in the commonwealth on file with the office of the commissioner of probation may, on a form furnished by the commissioner and signed under the penalties of perjury, request that the commissioner seal such file. The commissioner shall comply with such request provided (1) that said person’s court appearance and court disposition records, including any period of incarceration or custody as defined in section 1 of chapter 125 for any misdemeanor record to be sealed occurred not less than 5 years prior to said request; (2) that said person’s court appearance and court disposition records, including any period of incarceration or custody as defined in section 1 of chapter 125 for any felony record to be sealed occurred not less than 10 years prior to said request; (3) that said person had not been found guilty of any criminal offense within the commonwealth in the case of a misdemeanor, 5 years preceding such request, and in the case of a felony, 10 years preceding such request, except motor vehicle offenses in which the penalty does not exceed a fine of fifty dollars; (4) said form includes a statement by the petitioner that he has not been convicted of any criminal offense in any other state, United States possession or in a court of federal jurisdiction, except such motor vehicle offenses, as aforesaid, and has not been imprisoned in any state or county in the case of a misdemeanor, within the preceding 5 years, and in the case of a felony, within the preceding 10 years; and (5) said person’s record does not include convictions of offenses other than those to which this section applies. This section shall apply to court appearances and dispositions of all offenses provided, however, that this section shall not apply in case of convictions for violations of sections one hundred and twenty-one to one hundred and thirty-one H, inclusive, of chapter one hundred and forty or for violations of chapter two hundred and sixty-eight or chapter two hundred and sixty-eight A.
And,
Ms. Creem moves to further amend the bill in Section 16 of the bill by striking in lines 252-257 the words “Any member of the general public may upon written request to the department obtain the following criminal offender record information: (i) convictions for any felony punishable by a term of imprisonment of 5 years or more; (ii) felony convictions for 2 years following their disposition, including any period of incarceration or custody as defined in section 1 of chapter 125; and (iii) misdemeanor convictions for 1 year following their disposition, including any period of incarceration or custody as defined in section 1 of chapter 125.” And inserting in place thereof the following:- “Any member of the general public may upon written request to the department and in accordance with regulations established by the department obtain the following criminal offender record information: (i) convictions for any felony punishable by a term of imprisonment of 5 years or more; (ii) information concerning an individual who has been convicted of any crime and sentenced to any term of imprisonment, and at the time of the request: is serving a sentence of probation or incarceration, or is under the custody of the parole board; (iii) felony convictions for 2 years following their disposition, including any period of incarceration or custody as defined in section 1 of chapter 125; and (iv) misdemeanor convictions for 1 year following their disposition, including any period of incarceration or custody as defined in section 1 of chapter 125. “
And,
Ms. Creem moves to further amend the bill by striking Section 59 of the bill and inserting in place thereof the following:-
SECTION 59.
Said section 100A of said chapter 276, as so appearing, is hereby further amended by inserting after the word “proceedings”, in line 52, the following words:- , and except that in any proceedings under sections 1 to 39I, inclusive, of chapter 119, sections 2 to 5, inclusive, of chapter 201, chapters 208, 209, 209A, 209B, 209C, or sections 1 to 11A, inclusive, of chapter 210, a party having reasonable cause to believe that information in a sealed criminal record of another party may be relevant to 1) an issue of custody or visitation of a child, 2) abuse, as defined in section 1 of chapter 209A or 3) the safety of any person may upon motion seek to introduce the sealed record into evidence. The judge shall first review such records in camera and determine those records that are potentially relevant and admissible. The judge shall then conduct a closed hearing on the admissibility of those records determined to be potentially admissible, provided further, that such records shall not be discussed in open court and, if admitted, shall be impounded and made available only to the parties, their attorneys, and court personnel who have a demonstrated need to receive them.
And,
Ms Creem moves to further amend the bill by striking out section 39 and inserting in place thereof the following:-
SECTION 39. Section 32H of said chapter 94C, as so appearing, is hereby amended by striking out the second paragraph and inserting in place thereof the following paragraph: A person convicted of violating any provisions of said sections shall not, until he shall have served the mandatory minimum term of imprisonment established in said sections, be eligible for probation, furlough, or receive any deduction from his sentence for good conduct under sections 129C and 129D of chapter 127; provided, however, that the commissioner of correction, on the recommendation of the warden, superintendent or other person in charge of the correctional institution, or a sheriff, on the recommendation of the administrator of a county correctional institution, may grant to said offender a temporary release, subject to the rules and regulations of the institution and under the direction, control and supervision of the officers thereof, for the following purposes: to attend the funeral of a relative, to visit a critically ill relative, to obtain emergency medical or psychiatric services unavailable at said institution; to participate in education, training, or employment programs established under section 48 of chapter 127; to engage in employment pursuant to a work release program in accordance with the provisions of sections 49, 49A, 86F and 86G of chapter 127; or to participate in a program to provide services under section 49B or 49C of chapter 127. The provisions of section 87 of chapter 276 shall not apply to any person, 17 years of age or over, charged with a violation of said sections, or to any child between age 14 and 17, so charged by indictment under section 54 of chapter 119.
And,
Ms. Creem moves to further amend the bill in Sections 34, 35, 36, 37, 38, 40, and 66, by striking the words “minimum term of the sentence if the sentence is to a house of correction” and inserting in place thereof the following words:- “maximum term of the sentence if the sentence is to a house of correction”
And,
Ms. Creem moves to further amend the bill in Section 44, by striking in lines 696-697 the words “or may permit a person committed to the jail for contempt of court,”
Rejected
CLERK 49
Executive Office of Public Safety and Security
Mr. Tolman moves that the bill, Senate Number 2210, be amended by striking Section 29 in its entirety and further moves that the following new text be inserted in place thereof:-
“SECTION 29. Chapter 6A of the General Laws, as so appearing, is hereby amended by striking out section 18 and inserting in place thereof the following section:-
Section 18. The following state agencies are hereby declared to be within the executive office of public safety and security: the department of public safety; the department of fire services; the office of grants and research and the highway safety division; the municipal police training committee; the Massachusetts department of criminal justice information services; the state 911 department; the department of state police; the office of the chief medical examiner; the Massachusetts emergency management agency; the military department; the department of correction, including the parole board; the sex offender registry board; and all other agencies and boards within said departments, committees, and boards.
Rejected
CLERK 50
FAIR CREDIT REPORTING ACT EXEMPTION
Mr. Morrissey moves to amend the bill, Senate 2210 at the end of SECTION 17, by adding the following sentence:- Any organizations or business entities required by federal to adhere to the standards set forth in the Fair Credit Reporting Act codified under 15 U.S.C. § 1681 et seq. shall be exempt from SECTION 17.
ADOPTED
Redraft CLERK 51
EDUCATING OFFICIALS ON SUBSTANCE ABUSE
Mr. Tolman, Ms. Flanagan and Ms. Fargo move to amend the bill (Senate, No. 2210) by inserting at the end thereof the following new section:-
SECTION XX. “The executive office of public safety, in conjunction with the department of public health, the trial court, the department of probation, and the office of community correction, shall promulgate regulations establishing a resource guide for law enforcement personnel, sheriffs, and judges on substance abuse treatment programs and options, including but not limited to providing information on civil commitment programs, jail diversion, and public and private treatment options, including the Massachusetts Alcohol and Substance Abuse Center, the Men’s Addiction Treatment Center, and the Women’s Addiction Treatment Center. The Bureau of Substance Abuse Services shall provide technical assistance related to producing said resource guide.”
Rejected
CLERK 52
CORI CHECK FOR QUALIFIED APPLICANTS
Mr. McGee moves to amend the bill (Senate, No. 2210) to insert at line 850 the following text:-
SECTION 49½. Section 4 of chapter 151B of the General Laws, as so appearing, is hereby amended by inserting, after paragraph (9 ½), the following paragraph:—
(9 ¾) For an employer to request or obtain criminal offender record information, whether from the department or any other source, unless the applicant has been deemed otherwise qualified and has been conditionally offered the position subject to consideration of any criminal record.
CLERK 53
WITHDRAWN
Ruled Out of Order
CLERK 54
SCHOOL ZONE AMENDMENT
Mr. Tolman moves to amend the bill (Senate, No. 2210) by adding after SECTION 40 a new SECTION 40A:
Section 32J of Chapter 94C shall be amended by replacing the language, "within one thousand feet of the real property" with "within one hundred feet of the real property."
Ruled Out of Order
CLERK 55
CHILD ENDANGERMENT
Mr. Tarr moves to amend the bill by adding at the end the following additional section:-
“SECTION XX. Section 13L of Chapter 265 of the General Laws is hereby amended by 1 adding at the end of the fifth paragraph the following phrase: "or in the state prison for not less 2 than two and one-half years and not more than ten years."”
ADOPTED
CLERK 56
Registration Fee of Sex Offenders
Mr. Knapik moves to amend the bill (Sen. No. 2210) by inserting at the end thereof the following section: -
Section XX: Paragraph (1) of section 178q of chapter 6 of the General Laws, as appearing in the 2004 Official Edition, is hereby amended by striking out, in lines 1 to 2, the figure “75” and inserting in place thereof the following:- “100”
Section 2: Paragraph (2) of section 178q of chapter 6 of the General Laws, as appearing in the 2004 Official Edition, is hereby amended by striking out the first two sentences and inserting in place thereof the following:- “The sex offender registry board shall establish a payment plan for individuals who are unable to pay the fee due to a hardship on said person or his family due to limited income, employment status, or any other relevant factor.”
Ruled Out of Order
Redraft CLERK 57
CORPORATE MANSLAUGHTER
Mr. Tarr and Ms. Fargo move to amend the bill by adding at the end the following additional section:-
“SECTION XX. Section 13 of Chapter 265 of the General Laws is hereby amended by striking it in its entirety and replacing it with the following:-
“Section 13. Manslaughter; punishment
(a) Any person who commits manslaughter shall, except as hereinafter provided, be punished by imprisonment in the state prison for not more than twenty years or by a fine of not more than one thousand dollars and imprisonment in jail or a house of correction for not more than two and one half years. Whoever commits manslaughter while violating the provisions of sections one hundred and one to one hundred and two B, inclusive, of chapter two hundred and sixty-six shall be imprisoned in the state prison for life or for any term of years.
(b) Any corporation that commits manslaughter shall be punished by a fine of not more than one million dollars. If a corporation is indicted under this section, the appropriate Secretary may debar the corporation, pursuant to Section 29F of Chapter 29 of the General Laws, for not longer than ten years. If a corporation is found guilty under this section, the appropriate Secretary shall debar the corporation, pursuant to Section 29F of Chapter 29 of the General Laws, for not longer than ten years.””
Ruled Out of Order
CLERK 58
Relative to Good Samaritan Protection
Messrs. Brown, Tisei, Tarr, Knapik, Hedlund, Timilty, Montigny, Baddour, Michael O. Moore, and Ms. Flanagan move to amend the bill (S.2210) by inserting at the end thereof the following section:-
SECTION XX. Chapter 268 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by inserting after section 40 the following section:-
Section 41. Whoever uses deadly force to protect or attempt to protect himself or other persons from the immediate act or attempted act of murder, manslaughter, aggravated rape, rape, or armed robbery and is at the scene of the crime and acts in good faith and who is not charged with any crime, or after trial is found to be not guilty of any crime concerning the use of such deadly force, shall not be liable for any acts or omissions, other than gross negligence or willful and wanton misconduct, resulting from such emergency use of deadly force.
Rejected
CLERK 59
FURNISHING ALCOHOL TO A MINOR
Mr. Tarr moves to amend the bill by adding at the end the following additional sections:-
“SECTION XX. Section 34 of Chapter 138 of the General Laws is hereby amended by adding after the word “both” in line 17 the following phrase: -
“A conviction or an admission of sufficient facts to a violation of this section shall be reported forthwith to the registrar of motor vehicles by the court. Upon receipt of such notice, the registrar shall thereupon suspend for not less than 60 days and not more than two years the violators license or right to operate a motor vehicle; provided further that any person whose license is terminated under this section may apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes, which license shall be valid for a period of not more than one year, and which shall be effective for not more than an identical twelve hour period every day on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of one year from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. Persons serving or distributing alcoholic beverages pursuant to sections 12 and 15 pf chapter 138 of the General Laws shall not be subject to the provisions of this act.
SECTION XX. Section 34D of Chapter 138 of the General Laws is hereby amended by adding, after the word “alcohol” in line 7, the following: -
“and the penalties set forth in Section 34 of this chapter for the sale, delivery or furnishing of alcoholic beverages to persons under the age of 21.””
Ruled Out of Order
CLERK 60
OUI DRUG STOPS
Mr. Tarr moves to amend the bill by adding at the end the following additional sections:-
“SECTION XX. Section 1 of Chapter 90 of the General Laws is hereby amended by inserting, after the definition of “Department”, the following new paragraph:
“‘Drugs’, any substance except alcohol which, when ingested or otherwise introduced into the body, impairs the ability of a person to drive, and whose impairing effect is known or should be known to the ingesting person.
SECTION XX. Section 24(f) of Chapter 90 of the General Laws is hereby amended by striking the subsection in its entirety and replacing it with the following paragraph:
“(f) (1) Whoever operates a motor vehicle upon any way or in any place to which the public has right to access, or upon any way or in any place to which the public has access as invitees or licensees, shall be deemed to have consented to submit to chemical tests or analyses of his breath, urine or blood in the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor or drugs; provided, however, that no such person shall be deemed to have consented to a blood test or tests unless such person has been brought for treatment to a medical facility licensed under the provisions of section 51 of chapter 111; and provided, further, that no person who is afflicted with hemophilia or any other condition requiring the use of anticoagulants shall be deemed to have consented to a withdrawal of blood. Such test or tests shall be administered at the direction of a police officer, as defined in section 1 of chapter 90C, having reasonable grounds to believe that the person arrested has been operating a motor vehicle upon such way or place while under the influence of intoxicating liquor or drugs. If the person arrested refuses to submit to any tests or analyses, after having been informed that his license or permit to operate motor vehicles or right to operate motor vehicles in the commonwealth shall be suspended for a period of at least 180 days and up to a lifetime loss, for each refusal, no such test or analysis shall be made absent an order of a court, and he shall have his license or right to operate suspended in accordance with this paragraph for a period of 180 days for each refusal; provided, that each suspension for a refusal under this section shall run consecutively; provided, further, that any person who is under the age of 21 years or who has been previously convicted of or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program for a violation under this section, subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor or drugs in violation of subsection (b) of said section 24G, section 24L or subsection (a) of section 8 of chapter 90B, section 8A or 8B of said chapter 90B, section 11 of chapter 90F, or section 13 1/2 of chapter 265 or a like violation by a court of any other jurisdiction shall have his license or right to operate suspended forthwith for a period of 3 years for each refusal; provided, further, that any person previously convicted of or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program for 2 such violations shall have his license or right to operate suspended forthwith for a period of 5 years for each refusal; and provided, further, that a person previously convicted of or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program for 3 or more such violations shall have his license or right to operate suspended forthwith for life based upon each refusal. If a person refuses to submit to any such tests or analyses after having been convicted of or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program for a violation of section 24L, the registrar shall suspend his license or right to operate for 10 years for each refusal unless a longer suspension has been ordered pursuant to this section, in which case a suspension of 10 years shall run consecutively with the previous suspension. If a person refuses to submit to any such tests or analyses after having been convicted of or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program for a violation of subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of said section 24G, or section 13 1/2 of chapter 265, the registrar shall revoke his license or right to operate for life. If a person refuses to take any test under this paragraph, the police officer shall:
(i) immediately, on behalf of the registrar, take custody of such person's license if said license was issued by the commonwealth;
(ii) provide to each person who refuses a test, on behalf of the registrar, a written notification of suspension in a format approved by the registrar; and
(iii) impound the vehicle being driven by the operator and arrange for the vehicle to be impounded for a period of 12 hours after the operator's refusal, with the costs for the towing, storage and maintenance of the vehicle to be borne by the operator.
The police officer before whom any such refusal was made shall, within 24 hours, prepare a report of each refusal. Each report shall be made in a format approved by the registrar and shall be made under the penalties of perjury by the police officer before whom such refusal was made. Each report shall set forth the grounds for the officer's belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor or drugs and shall state that such person had refused to submit to one or more chemical tests or analyses when requested by the officer to do so, such refusal or refusals having been witnessed by another person other than the defendant. Each report shall identify the police officer who requested the chemical test or analysis and the other person witnessing the refusal. Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to suspend in a form, including electronic or otherwise, that the registrar deems appropriate. A license which has been confiscated pursuant to this subparagraph shall be disposed of in a manner prescribed by the registrar. The report shall constitute prima facie evidence of the facts set forth therein at any administrative hearing regarding the suspension specified in this section.
The suspension of a license or right to operate shall become effective immediately upon receipt of the notification of suspension from the police officer. A suspension for a refusal of either a chemical test or analysis of breath, urine or blood shall run consecutively and not concurrently, both as to any additional suspension periods arising from the same incident, and as to each other.
No license or right to operate shall be restored under any circumstances and no restricted or hardship permits shall be issued during the suspension period imposed by this paragraph; provided, however, that the defendant may immediately, upon the entry of a not guilty finding or dismissal of all charges under this section, section 24G, section 24L, or section 13 1/2 of chapter 265, and in the absence of any other alcohol or drug related charges pending against said defendant, apply for and be immediately granted a hearing before the court which took final action on the charges for the purpose of requesting the restoration of said license. At said hearing, there shall be a rebuttable presumption that said license be restored, unless the commonwealth shall establish, by a fair preponderance of the evidence, that restoration of said license would likely endanger the public safety. In all such instances, the court shall issue written findings of fact with its decision.
(2) If a person's blood alcohol percentage is not less than eight one-hundredths or the person is under twenty-one years of age and his blood alcohol percentage is not less than two one-hundredths, or if a person is under the influence of marijuana, narcotic drugs, depressants, or stimulant substances, such police officer shall do the following:
(i) immediately and on behalf of the registrar take custody of such person's drivers license or permit issued by the commonwealth;
(ii) provide to each person who refuses the test, on behalf of the registrar, a written notification of suspension, in a format approved by the registrar;
(iii) impound the vehicle being driven by the operator and arrange for the vehicle to be impounded for a period of 12 hours after the operator's test, with the costs for the towing, storage and maintenance of the vehicle to be borne by the operator; and
(iii) immediately report action taken under this paragraph to the registrar. Each report shall be made in a format approved by the registrar and shall be made under the penalties of perjury by the police officer. Each report shall set forth the grounds for the officer's belief that the person arrested has been operating a motor vehicle on any way or place while under the influence of intoxicating liquor or drugs and that the person's blood alcohol percentage was not less than .08 or that the person was under the influence of drugs, or that the person was under 21 years of age at the time of the arrest and whose blood alcohol percentage was not less than .02. The report shall indicate that the person was administered one or more tests or analyses, that the operator administering the tests or analyses was trained and certified in the administration of the tests or analyses, that the test or tests were performed in accordance with the regulations and standards promulgated by the secretary of public safety, that the equipment used for the test or tests was regularly serviced and maintained and that the person administering the test or tests had every reason to believe the equipment was functioning properly at the time the test of tests were administered. Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to suspend, in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to operate confiscated under this clause shall be forwarded to the registrar forthwith.
The license suspension shall become effective immediately upon receipt by the offender of the notice of intent to suspend from a police officer. The license to operate a motor vehicle shall remain suspended until the disposition of the offense for which the person is being prosecuted, but in no event shall such suspension pursuant to this subparagraph exceed 30 days.
In any instance where a defendant is under the age of twenty-one years and such evidence is that the percentage, by weight, of alcohol in the defendant's blood is two one-hundredths or greater and upon the failure of any police officer pursuant to this subparagraph, to suspend or take custody of the driver's license or permit issued by the commonwealth, and, in the absence of a complaint alleging a violation of paragraph (a) of subdivision (1) or a violation of section twenty-four G or twenty-four L, the registrar shall administratively suspend the defendant's license or right to operate a motor vehicle upon receipt of a report from the police officer who administered such chemical test or analysis of the defendant's blood pursuant to subparagraph (1). Each such report shall be made on a form approved by the registrar and shall be sworn to under the penalties of perjury by such police officer. Each such report shall set forth the grounds for the officer's belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor and that such person was under twenty-one years of age at the time of the arrest and whose blood alcohol percentage was two one-hundredths or greater. Such report shall also state that the person was administered such a test or analysis, that the operator administering the test or analysis was trained and certified in the administration of such test, that the test was performed in accordance with the regulations and standards promulgated by the secretary of public safety, that the equipment used for such test was regularly serviced and maintained, and that the person administering the test had every reason to believe that the equipment was functioning properly at the time the test was administered. Each such report shall be endorsed by the police chief as defined in section one of chapter ninety C, or by the person authorized by him, and shall be sent to the registrar along with the confiscated license or permit not later than ten days from the date that such chemical test or analysis of the defendant's blood was administered. The license to operate a motor vehicle shall thereupon be suspended in accordance with section twenty-four P.
(g) Any person whose license, permit or right to operate has been suspended under subparagraph (1) of paragraph (f) shall, within fifteen days of suspension, be entitled to a hearing before the registrar which shall be limited to the following issues: (i) did the police officer have reasonable grounds to believe that such person had been operating a motor vehicle while under the influence of intoxicating liquor or drugs upon any way or in any place to which members of the public have a right of access or upon any way to which members of the public have a right of access as invitees or licensees, (ii) was such person placed under arrest, and (iii) did such person refuse to submit to such tests or analyses. If, after such hearing, the registrar finds on any one of the said issues in the negative, the registrar shall forthwith reinstate such license, permit or right to operate. The registrar shall create and preserve a record at said hearing for judicial review. Within thirty days of the issuance of the final determination by the registrar following a hearing under this paragraph, a person aggrieved by the determination shall have the right to file a petition in the district court for the judicial district in which the offense occurred for judicial review. The filing of a petition for judicial review shall not stay the revocation or suspension. The filing of a petition for judicial review shall be had as soon as possible following the submission of said request, but not later than thirty days following the submission thereof. Review by the court shall be on the record established at the hearing before the registrar. If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is unsupported by the evidence in the record, the court may reverse the registrar's determination.
Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of chemical analysis of his breath, urine or blood may within ten days of such suspension request a hearing and upon such request shall be entitled to a hearing before the court in which the underlying charges are pending or if the individual is under the age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issues: whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such person's blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths; whether reasonable grounds existed for the arrest; and the reliability or validity of the machines, personnel, and procedures used in the chemical analysis or analyses. If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of twenty-one, that such percentage was less than two one-hundredths, or that there did not exist reasonable grounds for the arrest, or that the chemical analysis or analyses were not reliable or valid, the court shall restore such person's license, permit or right to operate and shall direct the prosecuting officer to forthwith notify the criminal history systems board and the registrar of such restoration.
SECTION XX. Section 24(e) of Chapter 90 of the General Laws is hereby amended by striking the subsection in its entirety and replacing it with the following paragraph:
(e) In any prosecution for a violation of paragraph (a), evidence of the percentage, by weight, of alcohol in the defendant’s blood at the time of the alleged offense, or evidence of the presence of drugs, as shown by chemical test or analysis of his blood, urine, or breath, shall be admissible and deemed relevant to the determination of the question of whether such defendant was at such time under the influence of intoxicating liquor or drugs; provided, however, that if such test or analysis was made by or at the direction of a police officer, it was made with the consent of the defendant, the results thereof were made available to him upon his request and the defendant was afforded a reasonable opportunity, at his request and at his expense, to have another such test or analysis made by a person or physician selected by him; and provided, further, that blood shall not be withdrawn from any party for the purpose of such test or analysis except by a physician, registered nurse or other qualified medical personnel. Evidence that the defendant failed or refused to consent to such test or analysis shall not be admissible against him in a civil or criminal proceeding, but shall be admissible in any action by the registrar under paragraph (f) or in any proceedings provided for in section twenty-four N. In the case of a test for the presence of alcohol, if such evidence is that such percentage was five one-hundredths or less, there shall be a permissible inference that such defendant was not under the influence of intoxicating liquor, and he shall be released from custody forthwith, but the officer who placed him under arrest shall not be liable for false arrest if such police officer had reasonable grounds to believe that the person arrested had been operating a motor vehicle upon any such way or place while under the influence of intoxicating liquor; provided, however, that in an instance where a defendant is under the age of twenty-one and such evidence is that the percentage, by weight, of alcohol in the defendant’s blood is two one-hundredths or greater, the officer who placed him under arrest shall, in accordance with subparagraph (2) of paragraph (f), suspend such defendant’s license or permit and take all other actions directed therein, if such evidence is that such percentage was more than five one-hundredths but less than eight one-hundredths there shall be no permissible inference. A certificate, signed and sworn to, by a chemist of the department of the state police or by a chemist of a laboratory certified by the department of public health, which contains the results of an analysis made by such chemist of the percentage of alcohol in such blood or urine or of the presence drugs shall be prima facie evidence of the percentage of alcohol in such blood or of the presence of drugs.””
Rejected
CLERK 61
Employment Application Inquiries
Ms. Fargo moves to amend the bill (Senate No. 2210), in section 49, by striking, in lines 844-847, the words “(9 ½) For an employer to request on a written application form criminal offender record information; provided, however, that if an applicant is applying for a position for which federal or state laws or regulations create mandatory or presumptive disqualification based on certain criminal offenses the employer may inquire about such offenses on the applicant’s application form.” and inserting in place thereof, the following text:-
“(9 ½) For an employer to request on a written application form criminal offender record information; provided, however, that if an applicant is applying for a position for which federal or state laws or regulations create mandatory or presumptive disqualification based on certain criminal offenses the employer may inquire about such offenses on the applicant’s application form notwithstanding any other contrary provision of law.
Nothing contained in this section shall preclude an employer from orally inquiring of a prospective applicant for employment, information of violations of law resulting in such applicant’s criminal conviction; however, subject to any applicable prohibitions under the provisions of paragraph 9 herein unless such applicant is applying for a position of employment for which federal or state laws or regulations create a mandatory or presumptive disqualification based on certain criminal offenses.”
Rejected
CLERK 62
Electronic Communication by Sex Offenders
Mr. Knapik moves to amend the bill (Sen. No. 2210) by inserting at the end thereof the following section: -
Section XX. Paragraph (a) of section 178d of chapter 6 of the general laws is hereby amended by inserting after the word social security number the following:-- electronic messaging address, internet communication identifier.
Section 2. Section 178c of chapter 6 of the general laws is hereby amended by adding at the end thereof the following:--
“Electronic messaging address”, any name that identifies an electronic post office box where electronic messages can be created, transmitted, and received.
“Internet communication identifier”, a name that identifies an individual who engages in a form of electronic communications that involves real-time correspondence between two or more users who are online simultaneously.
Rejected
CLERK 63
ATTEMPTED PRODUCTION OF METHAMPHETAMINES
Mr. Tarr moves to amend the bill by adding at the end the following additional section:-
“SECTION XX. Section 32A of Chapter 94C of the General Laws is hereby amended by inserting at the end of the first paragraph the following: “; provided, that possession with intent to manufacture shall include possession of the constituent ingredients; provided further, that simple possession of the constituent ingredients shall constitute neither proof nor presumption of intent to manufacture.””
Ruled Out of Order
CLERK 64
PUBLIC FUNDS
Mr. Tarr moves to amend the bill by adding at the end the following additional section:-
“SECTION XX. Chapter 29 of the General Laws is hereby amended by adding at the end the following additional section:-
“Section 72. Services Provided by the Department of Corrections and Municipal Jails
(a) No public funds shall be expended for the purpose of sex reassignment surgery for any person in the custody of any jail or prison in the commonwealth.
(b) No public funds shall be expended for the purpose of laser hair removal for any person in the custody of any jail or prison in the commonwealth.
(c) No public funds shall be expended for the purpose of hormone replacement therapy for any person in the custody of any jail or prison in the commonwealth except for a use, prescribed by a physician, other than preparation for sex reassignment surgery.
(d) If any provision of this chapter or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect the other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable.””
Rejected
RC 169 [10-27]
Redraft CLERK 65
PROGRESSIVE PENALTIES FOR VEHICULAR HOMICIDE
Mr. Tarr moves to amend the bill by striking out sections 34 through 48, inclusive, and section 66 in their entirety.
Rejected
CLERK 66
Employment Decisions Based on Substantially Related Convictions
Ms. Chang-Díaz moves to amend the bill (Senate, No. 2210), in section 14, by inserting after the word “history,” in line 206, the following text:-
“except as otherwise provided under chapter 151B”;
And moves to further amend the bill (Senate, No. 2210) by inserting, after section 49, the following new section:-
“SECTION 49½. Section 4 of chapter 151B of the General Laws, as so appearing, is hereby amended by inserting, after paragraph (9 ½), the following paragraph:—
(9 ¾) For an employer to exclude, limit or otherwise discriminate against any person on account of the person’s merely having a criminal record; provided, however, that it shall not be a violation of this subsection if the person has a criminal record containing one or more convictions which substantially relate to the circumstances of a particular employment or job training position or licensed activity, and the decision against the person was not unreasonable based on the totality of the circumstances.”
Rejected
CLERK 67
Employment Decisions Based on Substantially Related Convictions
Ms. Chang-Díaz moves to amend the bill (Senate, No. 2210), in section 14, by inserting after the word “history,” in line 206, the following text:-
“except as otherwise provided under chapter 151B”;
And moves to further amend the bill (Senate, No. 2210) by inserting, after section 49, the following new section:-
“SECTION 49½. Section 4 of chapter 151B of the General Laws, as so appearing, is hereby amended by inserting, after paragraph (9 ½), the following paragraph:—
(9 ¾) For an employer to exclude, limit or otherwise discriminate against any person on account of the person’s merely having a criminal record; provided, however, that it shall not be a violation of this subsection if the person has a criminal record containing one or more convictions which substantially relate to the circumstances of a particular employment or job training position or licensed activity, and the decision against the person was not unreasonable based on the totality of the circumstances.”
ADOPTED
Redraft CLERK 68
Technical Amendment
Mr. Panagiotakos moves to amend the bill (Senate No, 2210) by striking sections 46 and 47.
and by striking in line 743 the figure “133” and inserting in place thereof the following figure:- “133A”
and by striking in section 17, in the second paragraph the following phrase:- “to assist ex-offenders in obtaining an maintaining employment, training and auditing requestors described in subsection (a) of section 172, providing education and assistance regarding the correction of criminal records and to operate and maintain the public safety information system and the criminal records review board.” And inserting in place thereof the following:-
“to assist ex-offenders in obtaining and maintaining employment, including but not limited to, workforce development training and other applicable training programs, training and auditing requestors described in subsection (a) of section 172, providing education and assistance regarding the correction of criminal records, including but not limited to training judges, providing the necessary information to employers and other applicable person in possession of an applicant’s criminal offender record information, and to operate and maintain the public safety information system and the criminal records review board.”
Said section 172E of said chapter 6 is hereby further amended in the second paragraph by striking out the words “for a position that involves the provision of direct personal care or treatment to residents of such facility.”
And all sections pertaining to criminal offender record information shall take effect in 18 months. |
