On Friday, Governor Baker signed a sweeping criminal justice reform bill into law, and because it contained an emergency preamble it went into effect upon signing. The law makes significant changes to defendants’ ability to get a pre-arraignment diversion — a way to resolve a case without any criminal record.
Under the old law (Mass. G.L.c. 276A), a defendant could obtain a pre-arraignment diversion if she met all of the following criteria, set forth in section 2 of the law:
- The case was one where a prison sentence was possible and the district court had final jurisdiction;
- Was between ages 18-22 or was a military veteran;
- Had not previously been convicted of any crime;
- Did not have outstanding warrants or criminal cases in any court;
- Received a recommendation from a program that she would benefit from the program.
Defendants who met this criteria were entitled to a fourteen-day stay of their arraignment so they could be assessed by the probation department to determine if they would benefit from a program it certified. If a defendant did not meet all of the criteria, a judge could still decide that assessment for pre-arraignment diversion was warranted, and grant a fourteen-day stay for the defendant to be assessed.
After the assessment period, the director of the program to which the defendant was sent for assessment would submit a report to the court that would state whether the defendant would benefit from diversion, and if so, what the plan of services for the defendant would be. The judge would then determine whether to divert the case. If the case was diverted, the criminal process would be stayed for 90 days while the defendant engaged in the diversionary program. At the end of the ninety days, if the defendant successfully completed the program, the charges against her could be dismissed.
The new law makes it easier for defendants to obtain these diversions. First, it eliminates the requirement that the diversion program be certified by the department of probation, allowing defendants to participate in a wider range of programs to satisfy the requirements of their diversion. Second, the age requirement is eliminated, meaning that a person of any age with no record of conviction and no outstanding warrants or cases is entitled to be assessed for diversion prior to arraignment in the district court.
The new law does not apply to defendants charged with certain offenses, including certain serious motor vehicle crimes such as second offenses for DUI and motor vehicle homicide, violation of orders of protection, most crimes of violence (except assault and battery), corruption by public officials, and certain crimes relating to prostitution. The law also does not apply to any charge where incarceration of more than five years can be imposed, for which there is a mandatory minimum incarceration sentence, or which cannot be continued without a finding or placed on file.
In addition to broadening the district court’s ability to order pre-arraignment diversion in certain cases, the new law also creates M.G.L. c. 276B, which establishes community-based restorative justice programs and allows for juvenile or adult cases to be diverted to those programs (pre-arraignment or at any later stage of the case) with the consent of the district attorney and any victim in the case. If the program is successfully completed, the charge will be dismissed. Like the pre-arraignment diversion section, there are a number of crimes for which defendants cannot participate in restorative justice programs, including: certain sexual offenses, offenses against family and household members, and offenses resulting in serious bodily injury or death. Importantly, due to the nature of restorative justice programs, participation in such a program cannot be used as evidence in any subsequent proceeding against any participant. Statements made by participants in the program are confidential, and cannot be used in any subsequent legal or administrative proceeding.
These two changes in the law are only examples of the many ways the criminal justice reform act will improve Massachusetts’ criminal justice system. Through expanded pre-arraignment diversion and the new restorative justice diversion program, courts will be able to divert cases that do not warrant use of the court’s resources or a criminal record being created for the defendant to alternate dispositions. In turn, these less-serious criminal charges will not have lifelong impacts on defendants’ employment, housing, and financial opportunities.