Local attorneys weigh in on proposed criminal code update

If Gov. Jay Nixon signs it into law, the state's first criminal code update in 35 years will go into effect in 2017.

Cape Girardeau County Prosecuting Attorney Chris Limbaugh describes the update as a "housekeeping process" that cleans up repetitive and unclear laws while addressing issues and technologies that have arisen since 1979, the last time the code underwent a comprehensive overhaul.

" ... Because of the voluminous nature of our criminal code, it's become necessary to clean it up and simplify it," Limbaugh said.

Cape Girardeau defense attorney Patrick McMenamin said the update is long overdue.

"We're in desperate need of an overhaul, so it's good that we're looking at some of those things," he said.

The House passed the measure Thursday with a vote of 140 to 15, and the Senate followed suit with a vote of 29 to 2, The Associated Press reported.

The strong support in both houses gives the measure enough votes to override a potential veto by Nixon, who has expressed skepticism about whether the bill changes too much at once or contains mistakes, AP reported Thursday.

Nixon has advocated breaking the update down into separate bills.

Limbaugh said the bill will increase penalties for some crimes while lessening them for others.

"It aims to strike the right balance between violent and nonviolent offenses," he said.

New felonies

One notable change is the creation of a fifth class of felonies to cover lesser offenses, Limbaugh said.

The change will give prosecutors another tool for upgrading certain misdemeanors to felonies for repeat offenders, he said.

For instance, domestic abusers could face stiffer penalties, Limbaugh said.

"My understanding is that it will only require one prior domestic assault for the second one around to become a felony," he said.

Such an upgrade would not be automatic, Limbaugh said, but it gives prosecutors another option.

"What that does is it allows for more flexibility," he said. " ... The most important role for a prosecutor is to prosecute cases with an even hand, and having that flexibility allows us to do that."

McMenamin isn't convinced another felony class is the best way to accomplish that.

"I think that's definitely a bad idea," he said. " ... It really hampers [people's] ability to rejoin society and get a job and things of that nature."

McMenamin said he would rather see the state create a "supermisdemeanor" class specifically to address recidivism.

Such a classification could carry more severe penalties than a Class A misdemeanor -- currently the highest level below a felony -- without the lifelong stigma that makes it difficult for offenders to obtain work and become productive citizens once they are released from prison, McMenamin said.

"That would make more sense to me," he said.

Currently, someone caught driving on a revoked license can be charged with a felony on his fourth offense, McMenamin said.

"It causes somebody to be unemployable their entire life for driving a car three times," he said.

Marijuana

While some offenders will see more serious penalties, the bill decreases the consequences for others.

As states wrangle with the issue of marijuana -- Colorado famously legalized the drug last year, and Illinois allows its use as a treatment for some medical conditions -- Missouri's new code relaxes the penalties on some users.

First-time offenders convicted of possessing fewer than 10 grams of marijuana would not face the prospect of jail time.

Limbaugh and McMenamin both have noted problems with existing marijuana laws.

Under current law, a prosecutor could charge someone with distribution of marijuana for passing a joint around at a party.

"Is that the just thing to do?" Limbaugh said.

In such cases, prosecutors have to make decisions based on what serves the interest of justice, he said.

"Each case is taken on a case-by-case basis," Limbaugh said.

McMenamin said about half the cases he handles are drug-related.

"It's just ridiculous. Drug possession is a crime against somebody's own self," he said. "It's not a crime against somebody else."

McMenamin said he would like to see drug use decriminalized and instead addressed as a public health issue.

"You don't really want methamphetamine to be for sale at Walgreens ... but you also don't want to make somebody a criminal for being addicted to something," he said, noting that about 3 percent of the population suffers from drug addiction.

While drug use can lead to crimes such as theft or violence, it doesn't always, McMenamin said.

"If they commit a burglary, punish them for the burglary," he said. "Don't punish somebody who's addicted to cocaine because a different guy who's addicted to cocaine broke into a house."

Changing times

The last time Missouri overhauled its criminal code, digital watches were cutting-edge technology.

Today, home computers and smartphones connected to the Internet allow people to transmit information and images around the world in seconds.

New technology gives criminals new ways to cause trouble, from child pornography to identity theft, Limbaugh said, and the new criminal code seeks to address that.

"There's perhaps more ways now than ever that crimes can be committed. ... It allows for offenders to essentially become more creative," he said.

Many Southeast Missouri residents felt the effects of that creativity last year when a pair of large-scale data breaches -- one involving Schnucks grocery stores and one involving the retailer Target -- compromised some of their financial information, prompting many local banks to issue them new cards.

"A lot of people ... handle their finances now through their debit cards or their credit cards," Limbaugh said.

That change has prompted a shift in the types of financial crimes prosecutors see, he said, with fewer bad-check cases and more fraudulent use of credit or debit devices, he said.

"My understanding is [the new code] does address some of those issues," Limbaugh said.

Adjustments

If Nixon signs the new law, prosecutors and defense attorneys alike will have to get used to the changes.

"There will be some changes. Adapting to those will be crucial for our office," Limbaugh said.

McMenamin said attorneys likely will be offered seminars on the new criminal code to help them adapt.

"A lot of it will be the same from a practical standpoint, but it will just make things easier to read," Limbaugh said.

-- The Associated Press contributed to this report.

epriddy@semissourian.com

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