Session Laws

Whereas, The deferred operation of this act would tend to defeat its purpose, which is to immediately provide for an improved system of juvenile justice for the commonwealth, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public safety and convenience.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 52 of chapter 119 of the General Laws, as appearing in the 1994 Official Edition, is hereby amended by adding the following two definitions:-

"Punishment as is provided by law", any sentence which may be imposed upon an adult by a justice of the district court or superior court.

"Youthful offender", a person who is subject to an adult or juvenile sentence for having committed, while between the ages of fourteen and seventeen, an offense against a law of the commonwealth which, if he were an adult, would be punishable by imprisonment in the state prison, and (a) has previously been committed to the department of youth services, or (b) has committed an offense which involves the infliction or threat of serious bodily harm in violation of law, or (c) has committed a violation of paragraph (a), (c) or (d) of section ten or section ten E of chapter two hundred and sixty-nine; provided that, nothing in this clause shall allow for less than the imposition of the mandatory commitment periods provided in section fifty-eight of chapter one hundred and nineteen.

SECTION 2. Section 54 of said chapter 119, as so appearing, is hereby amended by adding the following 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 is alleged to have committed an offense against a law of the commonwealth while between the ages of fourteen and seventeen which, if he were an adult, would be punishable by imprisonment in the state prison, and the person has previously been committed to the department of youth services, or the offense involves the infliction or threat of serious bodily harm in violation of law or the person has committed a violation of paragraph (a), (c) or (d) of section ten or section ten E of chapter two hundred and sixty-nine. The court shall proceed on the complaint or the indictment, as the case may be, in accordance with sections fifty-five to seventy-two, inclusive. Complaints and indictments brought against persons for such offenses, and for other criminal offenses properly joined under Massachusetts Rules of Criminal Procedure 9 (a) (1), shall be brought in accordance with the usual course and manner of criminal proceedings.

SECTION 3. Said chapter 119 is hereby further amended by striking out section 55A, as so appearing, and inserting in place thereof the following two sections:-

Section 55A. Trial of a child complained of as a delinquent child or indicted as a youthful offender in a division of the juvenile court department shall be by a jury, unless the child files a written waiver and consent to be tried by the court without a jury. Such waiver shall not be received unless the child is represented by counsel or has filed, through his parent or guardian, a written waiver of counsel. No decision on such waiver shall be received until after the completion of a pretrial conference and a hearing on the results of such conference and until after the disposition of any pretrial discovery motions and compliance with any order of the court pursuant to said motions. Such waiver shall be filed in accordance with the provisions of section six of chapter two hundred and sixty-three; provided, however, that defense counsel shall execute a certificate signed by said counsel indicating that he has made all the necessary explanations and determinations regarding such waiver. The form of such certificates shall be prescribed by the chief justice for the juvenile court department.

In the juvenile court department upon the motion of a child consistent with criminal procedure, or upon the court's own motion, the judge shall issue an order of discovery requiring the prosecutor to provide in writing any information to which the child is entitled and also requiring that the child be permitted to discover, inspect, and copy any material and relevant evidence, documents, statements or persons, or reports of physical or mental examinations of any person or of scientific tests or experiments, within the possession, custody, or control of the prosecutor or persons under his direction and control. Upon motion of the child the judge shall order the production by the commonwealth of the names and addresses of the prospective witnesses and the production by the probation department of the record of prior convictions of any such witnesses. The commonwealth shall be entitled to reciprocal discovery as set forth in Rule 14 (a) (1) (3) of the Massachusetts Rules of Criminal Procedure.

Trial by jury in the juvenile court department shall be in those jury sessions designated in accordance with section fifty-six. Where the child has properly filed a waiver and consented to be tried without a jury, as hereinbefore provided, trial shall proceed in accordance with the provisions of law applicable to jury-waived trials in the superior court; provided, however, that at the option of the child, the trial may be before a judge who has not rejected an agreed upon recommendation or disposition request made by the child pursuant to the provisions of section fifty-five B. Review in such cases may be had directly by the appeals court, by appeal, report or otherwise in the same manner provided for trials of criminal cases in the superior court.

The justice presiding over such jury-waived trial in the juvenile court department shall have and exercise all of the powers which a justice sitting in the superior court department has and may exercise in the trial and disposition of criminal cases including the power to report questions of law to the appeals court.

The justice presiding at such jury-waived session in the juvenile court department shall, upon the request of the child, appoint a stenographer; provided, however, that where the child claims indigence, such appointment is determined to be reasonably necessary in accordance with the provisions of sections twenty-seven A to twenty-seven G, inclusive, of chapter two hundred and sixty-one. Such stenographer shall be sworn, and shall take stenographic notes of all the testimony given at the trial, and shall provide the parties thereto with a transcript of his notes or any part thereof taken at the trial or hearing for which he shall be paid by the party requesting it at the rate fixed by the chief justice of the juvenile court department; provided, however, that such rate shall not exceed the rate provided pursuant to section eighty-eight of chapter two hundred and twenty-one. Said chief justice may make regulations not inconsistent with law relative to the assignments, duties and services of stenographers appointed for sessions in his department and any other matter relative to stenographers. The compensation and expenses of a stenographer shall be paid by the commonwealth.

The request for the appointment of a stenographer to preserve the testimony at a trial in the juvenile court department shall be given to the clerk of the court by the child in writing no later than forty-eight hours prior to the proceeding for which the stenographer has been requested. The child shall file with such request an affidavit of indigence and request for payment by the commonwealth of the cost of the transcript and the court shall hold a hearing on such request prior to appointing a stenographer, in those cases where the child alleges that he will be unable to pay said cost. Said hearing shall be governed by the provisions of sections twenty-seven A to twenty-seven G, inclusive, of chapter two hundred and sixty-one, and the cost of such transcript shall be considered an extra cost as provided therein. If the court is unable, for any reason, to provide a stenographer, the proceedings may be recorded by electronic means. The original recording of proceedings in the juvenile court department made with a recording device under the exclusive control of the court shall be the official record of such proceedings. Said record or a copy of all or a part thereof, certified by the presiding justice or his designee, to be an accurate electronic reproduction of said record or part thereof, or a typewritten transcript of all or part of said record or copy thereof, certified to be accurate by the court or by the preparer of said transcript, or stipulated to by the parties, shall be admissible in any court as evidence of testimony given wherever proof of such testimony is otherwise competent. The child may request payment by the commonwealth of the cost of said transcript subject to the same provisions regarding a transcript of a stenographer as provided hereinbefore.

Section 55B. A child who is before the juvenile court on a delinquency complaint or an indictment within the court's jurisdiction shall plead not delinquent, or that he should not be adjudged as a youthful offender, as the case may be. Such plea shall be submitted by the child and acted upon by the court; provided, however, that a child with whom the commonwealth cannot reach agreement for a recommended disposition shall be allowed to tender a plea together with a request for a specific disposition. Such request may include any disposition or dispositional terms within the court's jurisdiction, including, unless otherwise prohibited by law, a disposition request that a finding not be entered, but rather the case be continued without a finding to a specific date thereupon to be dismissed, such continuance conditioned upon compliance with specific terms and conditions or that the child be placed on probation pursuant to the provisions of section fifty-seven of chapter one hundred and nineteen. If a plea, with an agreed upon recommendation or with a disposition request by the child, is tendered, the court shall inform the child that it will not impose a disposition that exceeds the terms of the agreed upon recommendation or the disposition request by the child, whichever is applicable, without giving the child the right to withdraw the plea.

Notwithstanding the foregoing requirements, if a child attempts to enter a plea or statement consisting of an admission of facts sufficient for a finding of delinquency or adjudication as a youthful offender, or some similar statement, such admission shall be deemed a tender of plea for purposes of the procedures set forth in this section.

Any pretrial motion filed in a delinquency case or case in which the commonwealth has proceeded by indictment pending in the juvenile court and decided before entry of the child's decision on waiver of the right to jury trial shall not be refiled or reheard thereafter, except in the discretion of the court as substantial justice requires. Any such pretrial motion not filed or filed but not decided prior to entry of the child's decision on waiver of the right to jury trial may be filed thereafter but not later than twenty-one days after entry of said decision on waiver of the right to jury trial, except for good cause shown.

SECTION 4. Said chapter 119 is hereby further amended by striking out section 56, as so appearing, and inserting in place thereof the following section:-

Section 56. Hearings upon cases arising under sections fifty-two to eighty-four, inclusive, may be adjourned from time to time; provided however, that no adjournment shall exceed fifteen days at any one time against the objection of the child. Section thirty-five of chapter two hundred and seventy-six relative to recognizance in cases continued shall apply to cases arising under sections fifty-two to eighty-four, inclusive.

(a) Every division of the juvenile court department shall be authorized to hold jury sessions for the purpose of conducting jury trials of cases commenced in the several courts of offenses over which the juvenile courts have original jurisdiction.

(b) The chief justice for the juvenile court department shall designate at least one division in each county or an adjoining county for the purpose of conducting jury trials.

The chief justice of the juvenile court department may also designate one or more divisions in each county for the purpose of conducting jury-waived trials of cases commenced in any court of said county consistent with the requirements of the proper administration of justice.

(c) A child in any division of the juvenile court who waives his right to jury trial as provided in section fifty-five A shall be provided a jury-waived trial in the same division.

A child in any division of the juvenile court who does not waive his right to jury trial as provided in section fifty-five A shall be provided a jury trial in a jury session in the same division if such session has been established in said division. If such session has not been so established, the child shall be provided a jury trial in a jury session in an adjoining county as designated by the clerk in the division where the case is pending. In cases where the child declines to waive the right to jury trial, the clerk shall forthwith transfer the case for trial in the appropriate jury session. Such transfer shall be governed by procedures to be established by the chief justice for the juvenile court department.

(d) The justice presiding over a jury session shall have and exercise all the powers and duties which a justice sitting in the superior court department has and may exercise in the trial and disposition of criminal cases including the power to report questions of law to the appeals court. No justice so sitting shall act in a case in which he has sat or held an inquest or otherwise taken part in any proceeding therein.

(e) Trials by jury shall proceed in accordance with the provisions of law applicable to trials by jury in the superior court. The commonwealth shall be entitled to as many challenges as equal the whole number to which all the children in the case are entitled. Trial by jury shall be by juries of six persons, except that in cases where the commonwealth has proceeded by indictment, said child shall be entitled to a jury of twelve.

(f) For the jury sessions, jurors shall be provided by the office of the jury commissioner in accordance with the provisions of chapter two hundred and thirty-four A.

(g) The district attorney for the district in which the alleged offense or offenses occurred shall appear for the commonwealth in the trial of all cases in which the right to jury trial has not been waived and may appear in any other case. The chief justice for the juvenile court department shall arrange for the sittings of the jury sessions and shall assign justices thereto, to the end that speedy trials may be provided. Review may be had directly by the appeals court, by appeal, report or otherwise in the same manner provided for trials of criminal cases in the superior court. A claim of trial by jury under this section may be withdrawn before trial, in which event trial and disposition of the case shall be by a justice in a jury session sitting without a jury.

(h) The justice presiding at such session in the juvenile court department shall, upon request of the child, appoint a stenographer in accordance with section fifty-five A herein.

The request for the appointment of a stenographer to preserve the testimony at a trial in the juvenile court department shall be given to the clerk of the court by the child in writing no later than forty-eight hours prior to the proceeding for which the stenographer has been requested. The child shall file with such request an affidavit of indigence and request for payment by the commonwealth of the cost of the transcript and the court shall hold a hearing on such request prior to appointing a stenographer, in those cases where the child alleges that he will be unable to pay said cost. Said hearing shall be governed by the provisions of sections twenty-seven A to twenty-seven G, inclusive, of chapter two hundred and sixty-one, and the cost of such transcript shall be considered an extra cost as provided therein. If the court is unable, for any reason, to provide a stenographer, the proceedings may be recorded by electronic means. The original recording of proceedings in the juvenile court department made with a recording device under the exclusive control of the court shall be the official record of such proceedings. Said record or a copy of all or a part thereof, certified by the presiding justice or his designee, to be an accurate electronic reproduction of said record or part thereof, or a typewritten transcript of all or part of said record or copy thereof, certified to be accurate by the court or by the preparer of said transcript, or stipulated to by the parties, shall be admissible in any court as evidence of testimony given wherever proof of such testimony is otherwise competent. The child may request payment by the commonwealth of the cost of said transcript subject to the same provisions regarding a transcript of a stenographer as provided hereinbefore.

SECTION 5. Said chapter 119 is hereby further amended by striking out section 58, as amended by section 1 of chapter 278 of the acts of 1995, and inserting in place thereof the following section:-

Section 58. At the hearing of a complaint against a child the court shall hear the testimony of any witnesses who appear and take such evidence relative to the case as shall be produced. If the allegations against a child are proved beyond a reasonable doubt, he may be adjudged a delinquent child, or in lieu thereof, the court may continue the case without a finding and, with the consent of the child and at least one of the child's parents or guardians, place said child on probation; provided, however, that any such probation may be imposed until such child reaches age eighteen or age nineteen in the case of a child whose case is disposed of after he has attained his eighteenth birthday. Said probation may include a requirement, subject to agreement by the child and at least one of the child's parents or guardians, that the child do work or participate in activities of a type and for a period of time deemed appropriate by the court.

If a child is adjudicated a delinquent child on a complaint, the court may place the case on file or may place the child in the care of a probation officer for such time and on such conditions as it deems appropriate or may commit him to the custody of the department of youth services, but the probationary or commitment period shall not be for a period longer than until such child attains the age of eighteen, or nineteen in the case of a child whose case is disposed of after he has attained his eighteenth birthday.

If a child is adjudicated a youthful offender on an indictment, the court may sentence him to such punishment as is provided by law for the offense. The court shall make a written finding, stating its reasons therefor, that the present and long-term public safety would be best protected by:

(a) a sentence provided by law; or

(b) a combination sentence which shall be a commitment to the department of youth services until he reaches the age of twenty-one, and an adult sentence to a house of correction or to the state prison as is provided by law for the offense. The adult sentence shall be suspended pending successful completion of a term of probation, which shall include, but not be limited to, the successful completion of the aforementioned commitment to the department of youth services. Any juvenile receiving a combination sentence shall be under the sole custody and control of the department of youth services unless or until discharged by the department or until the age of twenty-one, whichever occurs first, and thereafter under the supervision of the juvenile court probation department until the age of twenty-one and thereafter by the adult probation department; provided, however, that in no event shall the aggregate sentence imposed on the combination sentence exceed the maximum adult sentence provided by law; or

(c) a commitment to the department of youth services until he reaches the age of twenty-one.

In making such determination the court shall conduct a sentencing recommendation hearing to determine the sentence by which the present and long-term public safety would be best protected. At such hearing, the court shall consider, but not be limited to, the following factors: the nature, circumstances and seriousness of the offense; victim impact statement; a report by a probation officer concerning the history of the youthful offender; the youthful offender's court and delinquency records; the success or lack of success of any past treatment or delinquency dispositions regarding the youthful offender; the nature of services available through the juvenile justice system; the youthful offender's age and maturity; and the likelihood of avoiding future criminal conduct. In addition, the court may consider any other factors it deems relevant to disposition. No such sentence shall be imposed until a pre-sentence investigation report has been filed by the probation department and made available to the parties no less than seven days prior to sentencing.

A youthful offender who is sentenced as is provided by law either to a state prison or to a house of correction but who has not yet reached his seventeenth birthday shall be held in a youthful offender unit separate from the general population of adult prisoners; provided, however, that such youthful offender shall be classified at a facility other than the reception and diagnostic center at the Massachusetts Correctional Institution, Concord, and shall not be held at the Massachusetts Correctional Institution, Cedar Junction, prior to his seventeenth birthday.

If it is alleged in the complaint upon which the child is so adjudged that a penal law of the commonwealth, a city ordinance or a town by-law has been violated, the court may commit such child to the custody of the commissioner of youth services and authorize him to place such child in the charge of any person, and, if at any time thereafter the child proves unmanageable, to transfer such child to that facility which in the opinion of said commissioner, after study, will best serve the needs of the child. The department of youth services shall provide for the maintenance, in whole or part, of any child so placed in the charge of any person.

Notwithstanding any other provisions of this chapter, a person adjudicated a delinquent child by reason of a violation of paragraph (a), (c) or (d) of section ten or section ten E of chapter two hundred and sixty-nine, shall be committed to the custody of the commissioner of youth services who shall place such child in the custody of a facility supported by the commonwealth for the care, custody and training of such delinquent children for a period of at least one hundred and eighty days or until such child attains his eighteenth birthday, whichever first occurs, provided, however, that said period of time shall not be reduced or suspended.

Upon the second or subsequent violation of said paragraph (a), (c) or (d) of said section ten or ten E of said chapter two hundred and sixty-nine, the commissioner of youth services shall place such child in the custody of a facility supported by the commonwealth for the care, custody and training of such delinquent child for not less than one year; provided, however, that said period of time shall not be reduced or suspended.

The court may make an order for payment by the child's parents or guardian from the child's property, or by any other person responsible for the care and support of said child, to the institution, department, division, organization or person furnishing care and support at times to be stated in an order by the court of sums not exceeding the cost of said support after ability to pay has been determined by the court; provided, however, that no order for the payment of money shall be entered until the person by whom payments are to be made shall have been summoned before the court and given an opportunity to be heard. The court may from time to time, upon petition by, or notice to the person ordered to pay such sums of money, revise or alter such order or make a new order, as the circumstances may require.

The court may commit such delinquent child to the department of youth services, but it shall not commit such child to any institution supported by the commonwealth for the custody, care and training of delinquent children or juvenile offenders.

Except in cases in which the child has attained the age of majority, whenever a court of competent jurisdiction adjudicates a child as delinquent and commits the child to the department of youth services, the court, in order to comply with the requirements contained in the federal Adoption Assistance and Child Welfare Act of 1980 and any amendments thereto, shall receive evidence in order to determine whether continuation of the child in his home is contrary to his best interest, and whether reasonable efforts were made prior to the commitment of the child to the department, to prevent or eliminate the need for removal from his home; or whether an emergency situation existed making such efforts impossible. No such determination shall be made unless the parent or guardian of the delinquent shall have been summoned before the court and, if present, given an opportunity to be heard. The court, in its discretion, may make its determinations concerning said best interest and reasonable efforts in written form, but in the absence of a written determination to the contrary, it shall be presumed that the court did find that continuation of the child in his home was contrary to his best interest and that reasonable efforts to prevent or eliminate the need for removal of the child from his home did occur. Nothing in this section shall diminish the department's responsibility to prevent delinquent acts and to protect the public safety.

SECTION 6. Section 60A of said chapter 119, as appearing in the 1994 Official Edition, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-

The records of a youthful offender proceeding conducted pursuant to an indictment shall be open to public inspection in the same manner and to the same extent as adult criminal court records. All other records of the court in cases of delinquency arising under sections fifty-two to fifty-nine, inclusive, shall be withheld from public inspection except with the consent of a justice of such court; provided, however, that such records shall be open, at all reasonable times, to inspection by the child proceeded against, his parents, guardian or attorney; provided further, that nothing herein shall be construed to provide access to privileged or confidential communications and information; and provided further, that said protections shall be construed to include information and communications entered at the indictment.

SECTION 7. Section sixty-one of said chapter one hundred and nineteen is hereby repealed.

SECTION 8. Section 63 of said chapter 119, as appearing in the 1994 Official Edition, is hereby amended by striking out the third sentence and inserting in place thereof the following sentence:- The provisions for recognizance in section fifty-six shall be applicable to cases arising hereunder.

SECTION 9. Section 65 of said chapter 119, as so appearing, is hereby amended by striking out the third sentence and inserting in place thereof the following sentence:- The court shall exclude the general public from juvenile sessions admitting only such persons as may have a direct interest in the case, except in cases where the commonwealth has proceeded by indictment.

SECTION 10. Said chapter 119 is hereby further amended by striking out section 66, as so appearing, and inserting in place thereof the following section:-

Section 66. Except as otherwise provided in section sixty-seven and in section twelve of chapter one hundred and twenty, no child under seventeen years of age shall be detained by the police in a lockup, police station or house of detention pending arraignment, examination or trial by the court. No child under seventeen years of age shall be committed by the court to a jail or house of correction or to the state farm, pending further examination or trial by the court or pending any continuance of his case or, except as otherwise provided in sections fifty-two through eighty-four upon adjudication as a youthful offender.

SECTION 11. Said chapter 119 is hereby further amended by striking out section 68, as so appearing, and inserting in place thereof the following section:-

Section 68. A child who has attained the age of seven but not yet attained the age of seventeen held by the court for further examination, trial or continuance, or for indictment and trial, if unable to furnish bail, shall be committed by the court to the care of the department of youth services or to a probation officer, a parent, guardian, or other responsible person who shall provide for his safekeeping; provided, however, that the appearance of the child at such examination or trial, shall be the responsibility of the court for which he is being held in safekeeping.

The court may recommend that a child who has attained the age of fourteen and who is committed to the care of the department shall be held in a secure detention facility if the court further determines that the child (a) is a fugitive from another jurisdiction on a delinquency petition; or (b) is charged with an offense for which the commonwealth may proceed by indictment in accordance with the provisions of section fifty-four; provided, however, that such child is already detained or on conditional release in conjunction with another delinquency proceeding, or has demonstrated a recent record of willful failure to appear at juvenile court proceedings, or has demonstrated a recent record of violent conduct resulting in physical injury to others.

The court shall forward such recommendation and the reasons therefor, in writing, to the department. Such recommendation shall not be binding upon the department, but if the department chooses not to comply with such recommendation, the department shall inform the court within two business days.

The department may provide special foster homes, and places of temporary custody commonly referred to as detention homes of the department of youth services for the care, maintenance and safekeeping of such children who may be committed by the court to said department under this section; provided, however, that no more than five such children shall be detained in any such special foster home at any one time.

A child between seven and seventeen years of age so committed by the court to the department to await further examination or trial by the court, shall be returned thereto within fifteen days after the date of the order of such commitment, and final disposition of the case shall thereupon be made by adjudication or otherwise, unless, in the opinion of the court, the interest of the child and the public otherwise require.

The provisions of section twenty-four of chapter two hundred and twelve, relative to the precedence of cases of persons actually confined in prison and awaiting trial, shall apply to children held in detention facilities of the department of youth services under this section.

Said probation officer shall have the same authority, rights and powers in relation to a child committed to his care under this section, and in relation to a child released to him as provided in section sixty-seven, as he would have if he were surety on the recognizance of such child.

A person who at the time of the offense had attained the age of fourteen but had not attained the age of seventeen, and who is charged with murder in the first or second degree and is held by the superior court for trial or continuance, or for indictment and trial, if unable to furnish bail, shall be committed by the court to the custody of the sheriff of the county in which the court is situated; provided, however, that the appearance of the person at such examination or trial shall be the responsibility of the court for which he is being held in safekeeping.

SECTION 12. Said chapter 119 is hereby further amended by striking out section 68A, as so appearing, and inserting in place thereof the following section:-

Section 68A. A child between seven and seventeen years of age, held by the court for further examination, trial or continuance, or for indictment and trial, may at the discretion of the court be referred to the department of youth services, any court clinic, or the department of mental health, with its consent, and with the consent of the parents or guardian, for diagnostic study on an inpatient or outpatient basis; and, upon completion of such study, the department of youth services, court clinic or department of mental health, as the case may be, shall forward a report and recommendations to the court. In default of bail, any such child may be committed by the court to the department of youth services for a period not to exceed thirty days while undergoing diagnostic study. At the expiration of such period, such child shall be returned to the court, together with the report and recommendations to the department of youth services.

SECTION 13. Said chapter 119 is hereby further amended by striking out section 72, as so appearing, and inserting in place thereof the following section:-

Section 72. (a) The divisions of the juvenile court department shall continue to have jurisdiction over children who attain their eighteenth birthday pending adjudication of their cases, or during continuances or probation, or after their cases have been placed on file. Except as provided for youthful offenders in subsection (b), nothing herein shall authorize the commitment of a person to the department of youth services after he has attained his nineteenth birthday, or give any division of the juvenile court department any power or authority over a person after he has attained his nineteenth birthday.

If a child commits an offense prior to his seventeenth birthday, and is not apprehended until between his seventeenth and eighteenth birthday, the court shall deal with such child in the same manner as if he has not attained his seventeenth birthday, and all provisions and rights applicable to a child under seventeen shall apply to such child.

(b) If the commonwealth has proceeded by indictment, the divisions of the juvenile court department shall continue to have jurisdiction over such persons who attain their eighteenth birthday pending the adjudication of their cases, or pending the determinations allowed under section fifty-eight, or during continuances or probation, or after their case has been placed on file. Nothing herein shall authorize the commitment of a youthful offender to the department of youth services after he has attained his twenty-first birthday, or give any division of the juvenile court department any power or authority over any such person after he has attained his twenty-first birthday.

SECTION 13A. Said chapter 119 is hereby further amended by striking out section 72A, as so appearing, and inserting in place thereof the following section:-

Section 72A. If a person commits an offense or violation prior to his seventeenth birthday, and is not apprehended until after his eighteenth birthday, the court, after a hearing, shall determine whether there is probable cause to believe that said person committed the offense charged, and shall, in its discretion, either order that the person be discharged, if satisfied that such discharge is consistent with the protection of the public; or, if the court is of the opinion that the interests of the public require that such person be tried for such offense or violation instead of being discharged, the court shall dismiss the delinquency complaint and cause a criminal complaint to be issued. The case shall thereafter proceed according to the usual course of criminal proceedings and in accordance with the provisions of section thirty of chapter two hundred and eighteen and section eighteen of chapter two hundred and seventy-eight. Said hearing shall be held prior to, and separate from, any trial on the merits of the charges alleged.

SECTION 14. Said chapter 119 is hereby further amended by inserting after section 72A the following section:-

Section 72B. If a person is found guilty of murder in the first degree committed on or after his fourteenth birthday and before his seventeenth birthday under the provisions of section one of chapter two hundred and sixty-five, the superior court shall commit the person to such punishment as is provided by law for the offense.

If a person is found guilty of murder in the second degree committed on or after his fourteenth birthday and before his seventeenth birthday under the provisions of section one of chapter two hundred and sixty-five, the superior court shall commit the person to such punishment as is provided by law. Said person shall be eligible for parole under section one hundred and thirty-three A of chapter one hundred and twenty-seven when such person has served fifteen years of said confinement. Thereafter said person shall be subject to the provisions of law governing the granting of parole permits by the parole board.

The superior court shall not suspend the commitment of a person found guilty of murder in the first or second degree, nor shall the provisions of section one hundred and twenty-nine C or one hundred and twenty-nine D of chapter one hundred and twenty-seven apply to such commitment. In all cases where a person is alleged to have violated section one of chapter two hundred and sixty-five, the person shall have the right to an indictment proceeding under section four of chapter two hundred and sixty-three.

A person who is found guilty of murder and is sentenced to a state prison but who has not yet reached his seventeenth birthday shall be held in a youthful offender unit separate from the general population of adult prisoners; provided, however, that such person shall be classified at a facility other than the reception and diagnostic center at the Massachusetts Correctional Institution, Concord, and shall not be held at the Massachusetts Correctional Institution, Cedar Junction, prior to his seventeenth birthday.

If a defendant is not found guilty of murder in the first or second degree, but is found guilty of a lesser included offense or a criminal offense properly joined under Massachusetts Rules of Criminal Procedure 9 (a) (1), then the superior court shall make its disposition in accordance with section fifty-eight.

SECTION 15. Said chapter 119 is hereby further amended by striking out section 74, as so appearing, and inserting in place thereof the following section:-

Section 74. Except as hereinafter provided and as provided in sections fifty-two to eighty-four, inclusive, no criminal proceeding shall be begun against any person who prior to his seventeenth birthday commits an offense against the laws of the commonwealth or who violates any city ordinance or town by-law, provided, however, that a criminal complaint alleging violation of any city ordinance or town by-law regulating the operation of motor vehicles, which is not capable of being judicially heard and determined as a civil motor vehicle infraction pursuant to the provisions of chapter ninety C may issue against a child between sixteen and seventeen years of age without first proceeding against him as a delinquent child.

The juvenile court shall not have jurisdiction over a person who had at the time of the offense attained the age of fourteen but not yet attained the age of seventeen who is charged with committing murder in the first or second degree. Complaints and indictments brought against persons for such offenses, and for other criminal offenses properly joined under Massachusetts Rules of Criminal Procedure 9 (a) (1), shall be brought in accordance with the usual course and manner of criminal proceedings.

SECTION 16. Section eighty-three of said chapter one hundred and nineteen is hereby repealed.

SECTION 17. Section 11 of chapter 120 of the General Laws, as appearing in the 1994 Official Edition, is hereby amended by inserting after the word "delinquents", in line 5, the following words:- , youthful offenders.

SECTION 18. Said chapter 120 is hereby further amended by striking out section 13, as so appearing, and inserting in place thereof the following section:-

Section 13. The department may issue a warrant for the arrest of any person committed to it who has escaped from a facility or who has been released on parole and broken the conditions thereof. Such person may be arrested with or without such warrant by a police officer, sheriff, deputy sheriff, constable or person employed or authorized by the department and may be kept in custody in a suitable place and there detained until such person may be returned to the custody of the department.

SECTION 19. Section 16 of said chapter 120, as so appearing, is hereby amended by inserting after the word "child", in line 9, the following words:- or youthful offender.

SECTION 20. Section 17 of said chapter 120, as so appearing, is hereby amended by striking out the second sentence and inserting in place thereof the following sentence:- The order and application may be made at any time prior to the date of discharge stated in said section sixteen.

SECTION 21. The first paragraph of section 18 of said chapter 120, as so appearing, is hereby amended by adding the following sentence:- Said proceedings shall be conducted according to the provisions of sections fifty-five A, fifty-five B and fifty-six of chapter one hundred and nineteen.

SECTION 22. Section twenty of said chapter one hundred and twenty is hereby repealed.

SECTION 23. Section 21 of said chapter 120, as appearing in the 1994 Official Edition, is hereby amended by striking out, in lines 1 and 2, the words "wayward child or delinquent child" and inserting in place thereof the following words:- delinquent child or youthful offender.

SECTION 24. Section 26 of said chapter 120, as so appearing, is hereby amended by inserting after the word "Whoever", in line 1, the following words:- escapes, or attempts to escape from the department or.

SECTION 25. Section 122 of said chapter 140, as so appearing, is hereby amended by inserting after the word "minor", in line 3, the following words:- , a person who has been adjudicated a youthful offender, as defined in section fifty-two of chapter one hundred and nineteen, including those who have not received an adult sentence.

SECTION 26. Section 122B of said chapter 140, as so appearing, is hereby amended by inserting after the word "minor", in line 4, the following words:- , a person who has been adjudicated a youthful offender, as defined in section fifty-two of chapter one hundred and nineteen, including those who have not received an adult sentence.

SECTION 27. Section 129B of said chapter 140, as so appearing, is hereby amended by inserting after the word "nine A", in line 30, the following words:- , or (h) has within the last five years been adjudicated a youthful offender, as defined in section fifty-two of chapter one hundred and nineteen, including those who did not receive an adult sentence, or within the last five years has been released from confinement where such person was serving a sentence as a youthful offender.

SECTION 28. Section 131 of said chapter 140, as so appearing, is hereby amended by inserting after the word "drugs", in line 27, the following words:- a person who has been adjudicated a youthful offender, as defined in section fifty-two of chapter one hundred and nineteen, including those who have not received an adult sentence.

SECTION 29. Section 131F of said chapter 140, as so appearing, is hereby amended by inserting after the word "drugs", in line 9, the following words:- or a person who has been adjudicated a youthful offender, as defined in section fifty-two of chapter one hundred and nineteen, including those who have not received an adult sentence.

SECTION 30. Paragraph (a) of section 6 of chapter 211D of the General Laws, as amended by section 178 of chapter 38 of the acts of 1995, is hereby further amended by inserting after the second sentence the following sentence:- Said division shall also include a unit to be known as the youth advocacy project.

SECTION 31. Said paragraph (a) of said section 6 of said chapter 211D, as amended by said section 178 of said chapter 38, is hereby further amended by striking out clause (iv) and inserting in place thereof the following clause:-

(iv) said division shall not be assigned to represent any child alleged to be delinquent, except in such cases which may result in exposure to adult incarceration or commitment to the department of youth services until the age of twenty-one, and except in cases charging delinquency by conduct which would be punishable by imprisonment in the state prison if committed by an adult and except in the Boston and Bristol county divisions of the juvenile court department or in the Roxbury division of the district court department. Private counsel who have been certified to accept assignments in such cases shall also be eligible to provide representation to persons thus charged.

SECTION 32. Chapter 218 of the General Laws is hereby amended by striking out section 27, as appearing in the 1994 Official Edition, and inserting in place thereof the following section:-

Section 27. The district court may impose the same penalties as the superior court for all crimes of which they have jurisdiction, except that they may not impose a sentence to the state prison; provided, however, that the divisions of the juvenile court department shall have the authority to hear cases and impose penalties in accordance with the provisions of sections fifty-two through eighty-four of chapter one hundred and nineteen, and section one through nineteen of chapter one hundred and twenty.

SECTION 33. Section 57 of said chapter 218 is hereby amended by striking out, in line 181, the words "sections thirty-nine I and fifty-six", as so appearing, and inserting in place thereof the following words:- section thirty-nine I.

SECTION 34. Section 3 of chapter 258B of the General Laws, as appearing in section 5 of chapter 24 of the acts of 1995, is hereby amended by adding the following subsection:-

(v) for one family member of a victim of a homicide, which the matter before the court is related, to possess in the courtroom a photograph, that is not of itself of an inflammatory nature, of the deceased victim that is not larger than eight by ten inches; provided, however, that at no time may the photograph be exposed or in anyway displayed in the presence of any member of the jury, or the jury pool from which a jury is to be selected in a particular matter; provided, further, that nothing in this section shall preclude the admission into evidence of a photograph that the court deems relevant and material.

SECTION 35. Section 4 of chapter 263 of the General Laws, as appearing in the 1994 Official Edition, is hereby amended by striking out the third paragraph and inserting in place thereof the following paragraph:-

No juvenile shall be sentenced to any punishment as is provided by law for the offense by a juvenile court or a juvenile session of a district court, as the case may be, unless he has been proceeded against by indictment or has waived indictment pursuant to section four A of chapter two hundred and sixty-three, except as otherwise provided in section seventy-two A of chapter one hundred and nineteen. The clerk of the superior court in which an indictment of such juvenile is returned shall promptly remit the indictment to the clerk of the juvenile court or the juvenile session of the district court, as the case may be, in which such indictment is to be tried.

SECTION 36. Chapter 265 is hereby amended by adding the following section:-

Section 44. Whoever commits an assault and battery on a child under the age of eighteen for the purpose of causing or coercing such child to join or participate in a criminal conspiracy in violation of section seven of chapter two hundred and seventy-four, including but not limited to a criminal street gang or other organization of three or more persons which has a common name, identifying sign or symbol and whose members individually or collectively engage in criminal activity, shall, for the first offense, be punished by imprisonment in the state prison for not less than three nor more than five years or by imprisonment in the house of correction for not more than two and one-half years; and for a second or subsequent offense by imprisonment in the state prison for not less than five nor more than ten years.

SECTION 37. Section 18 of chapter 278 of the General Laws, as appearing in the 1994 Official Edition, is hereby amended by inserting after the word "court", in line 2 and in line 27, the second time it appears, in each instance, the following words:- or a district court sitting in a juvenile session or a juvenile court.

SECTION 38. The chief justice of administration and management of the trial court in cooperation with the chief justice of the juvenile court shall provide the resources needed to conduct all trials in the juvenile court under all applicable laws and the Massachusetts Rules of Criminal Procedure.

SECTION 39. Sections one to thirteen, inclusive, of this act and sections sixteen to thirty-eight, inclusive, shall take effect on October first, nineteen hundred and ninety-six.