On
September 18, 2013, An Act to Expand Juvenile Jurisdiction, Increase Public
Safety and Protect Children from Harm was signed into law by Governor Deval
Patrick. St. 2013, c. 84 (https://malegislature.gov/Laws/Acts/2013), extending the
Juvenile Court’s jurisdiction to all individuals up to and including the age of
17. Prior to the enactment of this law, 17 year olds in Massachusetts were
prosecuted under adult court jurisdiction.
Attorney
Steven J. Topazio[1],
an experienced and accomplished criminal defense attorney who has been
representing individuals in Massachusetts for over 28 years, supports the
proposition that the new law should apply retroactively to 17 year old
defendants who allegedly committed offenses before the passage of the act.
Attorney
Topazio believes a challenge (with the filing of a Motion to Dismiss) should be
made to a District Court’s or the Boston Municipal Court’s ongoing jurisdiction
on all cases involving 17 year olds whose cases were still pending on the
effective date of the Legislation. As a
matter of law and basic fairness these cases should be heard in juvenile court.
Section 34
of the Act explicitly states:
“This Act shall take
effect upon its passage.” In further support of the fact that the Act was
effective as of September 18, 2013 is the following: the new law qualifies as
one of several exceptions available in the Massachusetts Constitution to the 90
day waiting period for the implementation of a new law. See Constitution of
Massachusetts – Amendments, Art. 48: The Referendum; Section I. When Statutes
shall take effect (“No law passed by the General Court ...shall take effect
earlier than ninety days …expecting laws declared to be emergency laws and laws
which may not be made the subject of a referendum petition”). Section III.
Referendum Petitions, Section 2: Excluded matters – (“No law that relates to
…the powers, creation or abolition of courts …shall be the subject of a
referendum petition”). The Act to Expand Juvenile Jurisdiction, Increase Public
Safety and Protect Children from Harm affects the powers of the courts and,
therefore, it is effective immediately.
LEGISLATIVE INTENT:
The Act’s
purpose is to expand juvenile court jurisdiction to include 17 year olds
because doing so protects 17 year olds from harm and reduces recidivism. Testimony in support of the legislation
repeatedly addressed these issues.[2]
The
legislative intent nevertheless supports a finding that the Act applies to
pending cases. When ascertaining the
intent of the Legislature, courts look not only to the words of the statute,
but also to “the mischief or imperfection to be remedied and the main object to
be accomplished to the end that the purpose of its framers may be
effectuated.” Hanlon v. Rollins,
286 Mass. 444, 447 (1934). The “mischief
to be remedied” in this instance is proceeding against 17 year olds in the
criminal justice system as if they were adults.
ACT APPLIES RETROACTIVELY:
It is
well-settled law that the Legislature’s intent for a statute to apply
retroactively, even if not explicitly stated, may be discerned from the subject
matter, the pre-existing state of the law and the effect upon existing rights,
remedies, and obligations. Hanscom v.
Malden & Melrose Gas Light Co., 220 Mass 1, (1914); Commonwealth v.
Maloney, 447 Mass. 577 (2006). As
indicated, the primary objective of the Act is to protect 17 year olds from the
harm that arises out of adult prosecution and adult incarceration. There was strong bipartisan support in the
Legislature to include 17 year olds among the adolescents subject to juvenile
court jurisdiction. This support was
informed by research findings which documented that prosecuting 17 year olds as
adults and incarcerating them in adult facilities increases recidivism and
subjects juveniles to victimization by adult inmates. Applying the new law retroactively
accomplishes the legislative intent to put an immediate end to such negative
outcomes for 17 year olds in Massachusetts.
Therefore,
excluding 17 year olds whose cases were still pending on the effective date of
the Legislation is inconsistent with the manifest intent of the legislation and
repugnant to its context. See Sullivan
v. Town of Brookline, 435 Mass. 353, 360 (2001)(“A fundamental tenet of
statutory interpretation is that statutory language should be given effect
consistent with the plain meaning and in light of the aim of the Legislation
unless to do so would achieve an illogical result.”) Subjecting 17 year olds with pending cases to
incarceration in adult facilities produces an illogical result that is
inconsistent with the Act’s ameliorative purposes. Id.
Statutes
generally operate prospectively “unless [its] observance would involve a
construction inconsistent with the manifest intent of the law-making body or
repugnant to the context of the same statute.”
Commonwealth v. Galvin, 466 Mass. 286, 287 (2013), quoting G.L.
c. 4 § 6. Where, as here, a statute
does not explicitly address the retroactivity question, it may be applied to
pending cases. See Commonwealth v.
Maloney, 447 Mass. 577, 585 (2006)(“because the Legislature clearly knew
how to make [the amended statute] purely prospective in application and did not
do so, it is proper to apply [it] in the present [pending] case.”) Further, given that the Act is effective
immediately, the legislation mandates prompt procedural changes in the
treatment of 17 year olds charged with violating the criminal laws of the
Commonwealth.
See News
Group Boston Inc. V. Commonwealth, 409 Mass 627, 630 (1991)(“statutory
procedural changes properly apply to pending cases and to trials that concern
events occurring before the enactment of the change”); Commonwealth v.
Greenberg, 339 Mass. 557, 578-579 (1959)(“statutes relating merely to the
remedy or procedure which do not affect substantive rights are generally held
to operate retroactively”); contrast Nassar v. Commonwealth, 341 Mass
584 (1961)(amendment to statute which now provided that a 2nd degree murder
against a juvenile had to be dealt with as a delinquent matter in the first
instance instead of as a criminal matter was not retroactive because the change
was sufficiently substantive and there was inadequate Legislative history to
provide any affirmative indication to Legislative intent to do otherwise).
EQUAL PROTECTION VIOLATION
Excluding 17
year olds from the protective ambit of the statute and not treating them as
juvenile offenders may also violate the juvenile’s equal protection and due
process rights. State action violates
equal protection rights if it subjects persons to classification resulting in
different treatment. Commonwealth v.
Bastarache, 382 Mass. 86, 96 (1980).
Excluding 17 year olds with pending cases from the protections of the
Act creates a classification resulting in different treatment for a cohort of
17 year olds that serves no public interest and is not rationally related to a
legitimate state interest. See Commonwealth
v. Arment, 412 Masss. 55, 63 (1992); Lowell v. Kowalski, 380 Mass.
663, 666(1980).
[2] State Representative James O’Day who co-sponsored the Act said he supported the change because it reduces recidivism by “giving the state the opportunity to provide drug treatment, psychological counseling and educational services to 17-year-olds without their being influenced by older criminals in prison.” See http://www.mass.gov/governor/pressoffice/pressreleases/2013/0918-juvenile-jurisdiction-legislation.html. Chief Justice of the Juvenile Court, Michael Edgerton, supported the Act to raise the age of juvenile court jurisdiction to include 17 year olds, because it is the “proper setting for 17-year olds, .” He noted that, under Massachusetts law, youths under the age of 18 cannot “run for office, vote, drink alcohol or adopt. The Legislature determined they are not mature enough to support those decisions. Yet, in the court system we treat them as adults.” See www.telegram.com/article/20130918/NEWS.
