Sweeping sentencing changes await OK

Friday, May 30, 2003

JEFFERSON CITY, Mo. -- Nonviolent offenders would spend less time in prison but the list of serious crimes requiring long terms in the penitentiary would expand under criminal sentencing legislation awaiting the governor's signature.

If Gov. Bob Holden signs the bill as expected, it will have an immediate impact in Missouri courtrooms.

While most new legislation approved by the Missouri Legislature will take effect on Aug. 28, the sentencing measure contains an emergency clause, meaning it will become law the moment Holden's pen hits paper.

Because of that, Cape Girardeau County Prosecuting Attorney Morley Swingle said Missouri's legal community should be on alert.

"I'm a little wary about it because we have 114 counties, and one doesn't know if all the judges and prosecuting attorneys are aware of this," Swingle said.

It is possible a trial could begin under the existing rules but sentencing procedures could be altered at a moment's notice when Holden signs the bill. He has until July 15 to take action.

The bill, which cleared both legislative chambers with overwhelming support, is intended to help get Missouri's burgeoning prison population under control.

Inmate increase

Primarily because of tough sentencing laws enacted during the 1990s, the state's average daily inmate population has nearly doubled since 1993 to about 30,000 offenders. More than half of those inmates were convicted of non-violent crimes, primarily drug use.

Over the same period, the cost to taxpayers of running the Missouri Department of Corrections rose 191 percent to $574.5 million for the fiscal year beginning July 1.

The sentencing revisions are expected to free up 1,542 beds -- roughly one entire prison -- and save the state $21 million a year.

Corrections department spokesman Tim Kniest said the measure will give the prison system more flexibility to ensure space is available for the most serious criminals while not hampering the department's core mission.

"We certainly are going maintain close supervision of offenders whether they are in prison or out in the community," Kniest said.

Swingle said the bill appears to strike the intended balance ensuring that lawbreakers are punished while reserving prison for those who most deserve to be there. It was endorsed by the Missouri Association of Prosecuting Attorneys.

The mandatory minimum sentence for lesser felonies such as passing bad checks or repeat offenses for driving while intoxicated would be lowered from five years to four years. Also, inmates serving their second sentence for a non-violent offense would only have to do 30 percent of the time, instead of 40 percent as currently required.

However, lawmakers added five crimes to the list of dangerous felonies, such as rape, arson, second degree murder, that require inmates to serve at least 85 percent of their sentences, even on a first offense. Added to the list are first degree offenses of assault of a law enforcement officer, domestic assault, elder abuse and statutory rape and statutory sodomy when the victim is under age 12.

Sentencing separations

However, Swingle is conflicted about a provision that requires a jury to determine a sentence in a separate proceeding from the trial. This would be true for all cases, including misdemeanors, involving first-time offenders.

At present, the bifurcated system is used only in first degree murder cases when the death penalty is sought. In other instances, the jury returns a sentence at the time it renders a guilty verdict.

On the positive side, Swingle said jurors would be able to learn more about the defendant, including "prior bad acts" that wouldn't be admissible at trial. On the down side, he believes it could complicate and lengthen the process.

"I have mixed feelings about it, but I've always felt that if you give jurors all the information, you will get the right result," Swingle said.

Scott County Prosecuting Attorney Paul Boyd said another section of the bill gives him pause.

Under current law, a judge can send an offender to prison for 120 days for drug and alcohol abuse treatment as shock time. The judge retains jurisdiction over the prisoner for that period and can order him to serve his full sentence if the judge is not satisfied with the prisoner's progress or behavior.

The bill creates a presumption that the prisoner will be released after 120 days and requires the judge to show good cause for keeping him behind bars longer.

"I do not care at all for them taking discretion away from the trial court and placing it in the hands of state bureaucrats," Boyd said.

The bill is SB 5.


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