BOSTON – Activists are applauding as a step in the right direction a package of juvenile justice provisions included in a comprehensive Massachusetts Senate proposal to reform the state’s criminal justice system, a sentiment not shared by a majority of the state’s district attorneys.
The proposal would raise the age of adulthood to 19, create close-age exceptions to statutory rape and indecent assault and battery offenses, decriminalize certain offenses for juveniles that aren’t criminal for adults and add more liberal provisions concerning juveniles’ ability to seal or expunge criminal records, among other provisions.
The Senate bill has advanced to the House, where Speaker Robert DeLeo has said he anticipates his chamber will take up its own plan within the next two weeks to enable a conference committee to begin work before the Legislature’s 2017 session ends on Nov. 15.
The Senate bill faced harsh criticism from nine of the 11 Massachusetts district attorneys in a six-page letter. Addressed to Senate President Stanley Rosenberg and Senate Judiciary Committee Chair William Brownsberger, the DAs opposed many of the proposals involving juveniles, including raising the age of criminal majority, decriminalizing sex between minors of similar age and an absolute parent/child privilege.
The DAs say they are “concerned with the size, density and breadth of the bill and the risk it creates for legislators and citizens to fully understand the true and practical application of its many details.”
The two district attorneys absent from the letter are Northwestern District Attorney David Sullivan and Middlesex District Attorney Marian Ryan, the president of the Massachusetts District Attorneys Association, who have “reached different conclusions about some of the bill’s provisions than are reflected in this letter,” according to a statement.
This is the first time in five years a major criminal justice bill has hit the floor of either branch. And advocates did not share the DAs’ concerns.
“Juvenile reforms are definitely a good thing,” said Marlene Pollock, an organizer with the Coalition for Social Justice. “The whole bill is full of provisions addressing different arenas.”
For example, the felony larceny threshold, which is $250 in Massachusetts. This means someone convicted of stealing something worth over that amount would have a felony on their criminal record.
“When you have such a low felony threshold, it doesn’t take much to trigger a felony and then you can’t get a job,” said Pollock.
The felony larceny rate hasn’t changed since 1987 when it increased from $100 to $250, a total Pollock described as “nothing. It’s not even a phone.”
Pollock said Massachusetts is an outlier in this arena, one of four states with thresholds at $300 or less. Texas and Wisconsin have the highest thresholds at $2,500 according to The Marshall Project. Vermont has the next-lowest threshold in New England behind Massachusetts at $900.
The CSJ endorses the Senate provision to raise the line to $1,500, leaving larceny of property worth less as a misdemeanor. The majority of Massachusetts DAs believe the threshold should be raised, but only to $750.
The bill also calls for changing record access thresholds for felonies and misdemeanors.
“Young people, having these felonies on their records that can’t be sealed for 10 years is sending them on this downward spiral,” said Pollock. “Who among us doesn’t make a mistake and doesn’t deserve a second chance?”
Pauline Quirion agreed. The project director of the CORI and Re-Entry Project at Greater Boston Legal Services said, “There’s unrefuted evidence that people don’t fully develop until they’re 25. Studies show juveniles can lack impulse control and good judgment.
“The current juvenile statute says you can seal your record three years after the final disposition of the case, but adults can do it when it’s closed. If you’re 17 turning 18 this may have a big effect on your ability to get a job or go to school,” said Quirion.
The Senate bill would allow sealing of juvenile records within one year instead of three. Other provisions would exclude juvenile arrests from police arrest logs.
“Sealing a record is helpful, but it’s not enough,” said Jefferson Alvarez, 21, a youth leader at UTEC, a Lowell-based agency that aims to push proven-risk youth to trade violence and poverty for social and economic success.
Alvarez was arrested many times for fighting, getting expelled from school and being committed to the Department of Youth Services. He says DYS taught him respect and how to better read and approach people. His goal now is to get his GED and begin paramedic training.
“I have many juvenile records that even if sealed could hold me back from my life goals,” said Alvarez. “If this bill passes I could expunge my juvenile record by the time I’m 24.”
Juvenile-record expungement is also on the table as part of the bill which would expunge misdemeanors and nonconviction juvenile records from Criminal Offender Record Information, or CORI.
Alvarez says this would help thousands of young people who are in the same situation as him.
“I’m 21 now, I’m not who I was when I was 16,” he said.
Law enforcement will always be able to see expunged records along with certain types of jobs like child care, but expungement would let juveniles hide misdemeanors as long as they weren’t followed by other offenses.
“Keeping crimes on your record can really have a devastating effect,” said Quirion. “If you’re denied employment there may be a greater temptation to make money in other ways. We have to ask where you want people to be when they finish up with criminal cases. We want them to have jobs and to go to school ... we shouldn’t be putting up barriers to that.”
These provisions cater to juvenile offenders, currently anyone younger than 18. The Senate bill aims to raise this age of juvenile court jurisdiction to 19.
The nine DAs actively oppose this provision that allows most crimes committed by 18-year-olds to be confidentially adjudicated in front of a juvenile court judge. Serious crimes for youth as young as 14 would still be eligible for adult sentences.
The DAs said declaring these young adults juveniles with “less legal accountability for their actions cannot possibly be limited to the massive costs of reordering of the criminal justice system” and will have “broad-based economic and societal costs.”
Senate Ways and Means Chairwoman Karen Spilka, D-Ashland, disagrees.
“By raising the age to include 18-year-olds, the juvenile system would hold these young adults accountable, while incorporating services like education treatment and vocational training to improve outcomes for our young people and our communities,” she said on the Senate floor. “The sky did not fall when we included 17-year-olds. Instead ... juvenile crime fell by 34 percent.”
Quirion wants to take the provision even further, saying “it’s a good start because a lot of people age out of criminality,” but
that “ideally it should go to at least 21.”
Hampshire County Sheriff Patrick Cahillane said that “raising the age of criminality to 19 on its face isn’t a bad thing, but we have to make sure we keep in mind other things will be affected by that.”
He mentioned several examples, including potential federal compliance issues and prison sexual assault concerns along with the question of whether this would mean 19-year-olds would be housed in the same facilities as 12-year-olds.
Cahillane said that a lot of the provisions the Legislature is starting to codify are already being practiced at the judicial level when judges consider what would make the most sense for the juvenile in their courtrooms.
Many are more concerned not with what happens once a juvenile is in the courtroom, but with how they got there in the first place.
Miriam Ruttenberg and Phillip Kassel of the Mental Health Legal Advisors Committee focus on arrests in schools.
“There’s a pretty serious problem of children being arrested for crimes of things that years ago resulted in a lecture from the principal, a suspension or detention ... arrests are totally over the top for a kid who is running down the hall or yelling,” said Kassel, the group’s director.
He added that a lot of the time students being arrested have learning disabilities or emotional issues that aren’t addressed when schools kick disciplinary responsibility over to police.
He said school resource officers became more popular after school shootings and are now routinely posted in buildings where police would only have come by request before.
“The fact that more requests are coming because police are more available means kids are being arrested for things they would never have been before,” said Kassel. “It can be for things as minor as talking back to a teacher or walking away from a teacher ... reasonable discretion would not have officers arresting kids for those things.”
Under the Senate bill, students who exhibited disrespectful behavior such as nonviolent or verbal misconduct could no longer be arrested. Now, police officers are able to arrest students and charge them with crimes such as “disorderly conduct” or “disturbing a lawful assembly.” Certain motor-vehicle first offenses and other disorderlies would also be decriminalized.
“The reason we’re so interested because our clients that most often get arrested most often drop out. Failing to complete high school means you’re stuck in poverty in most cases ... if you can’t have a fulfilling work life and there’s a potential for mental illness, it’s likely to come out,” Kassel said.
“The bill would require school districts and police departments to set up what school resource officers can and can’t be involved in ... that they’re not involved in routine discipline, but in serious real threats to the school or community, and set up processes for schools to access community-based services, mental health referrals, data collection and reporting,” said Ruttenberg, the group’s senior attorney. “This would give advocates public information they could track to prove what we know to be true, that kids with disabilities are disproportionately affected by this.”
The bill would also require training so that resource officers could be more aware “more broadly of the social circumstances of students in their school,” said Ruttenberg.
Kassel added that he has worked in prisons and seen police in schools acting the same way.
“There’s ways of keeping things from blowing up and putting a kid in cuffs is not one of them ... If the police are trained they can act differently to cool things down instead of heating them up.”
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