New sentencing law being reconsidered

Tuesday, February 3, 2004

JEFFERSON CITY, Mo. -- After less than a year on the books, a new state law that allows juries to determine guilt and punishment in separate court proceedings is being targeted for modification and even outright repeal.

The provision gives criminal defendants, excluding persistent offenders, the right to request a two-phase trial in all felony and misdemeanor cases. After a finding of guilt in such instances, the jury hears additional witness testimony and evidence related to the appropriate sentence. Prior to the change, which became law over the summer, juries rendered their verdict and recommended sentence at the same time, except in capital murder cases, which have operated under the two-phase system since the 1980s.

State Sen. Harold Caskey, D-Butler, said having separate penalty proceedings allows the prosecution to present evidence of a defendant's "prior bad acts" that is often excluded from the trial phase as prejudicial. The provision was part of a larger criminal sentencing bill Caskey successfully sponsored in the Missouri Legislature last year.

"Juries in bifurcated trials gave longer sentences than a judge probably would have under the same circumstances," Caskey said. "Once they found out the defendant's history, they sentenced accordingly."

In response to the concerns of some judges about the potential for longer trials, however, Caskey is sponsoring follow up legislation that would limit the two-phase option to cases involving only the most serious felony charges.

Two Southeast Missouri lawmakers -- Republican state Reps. Scott Lipke of Cape Girardeau and Kevin Engler of Farmington -- want to repeal last year's change to sentencing procedures.

Lipke, a former assistant prosecuting attorney, said few criminal defendants have availed themselves of the right to a separate penalty phase during the short time it has been available.

"I'm a believer in not having laws on the books that don't do anything," Lipke said. "In concept the law is great. But from a defense attorney's standpoint, you don't want the opportunity for your client's dirty laundry to be aired."

If more defendants invoked the right in hopes of presenting mitigating evidence and convincing a jury to hand down a lighter sentence, Lipke said it could clog up court dockets by adding an extra day to trials.

Caskey said the impact on dockets is minimal as juries consider sentence in only a small percentage of cases. Judges determine punishment when the defendant has multiple previous convictions and is charged as a prior and persistent offender.

The bills are SB 1167 and HB 1243.

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