Criminal code proposals still 400 pages apart

CORRECTION: An earlier version of this story misstated the punishment under current law for first-time possession of 35 grams or less of marijuana. It is a class A misdemeanor. We regret the error.

Despite a pair of overwhelming votes Thursday, two proposals to revise Missouri’s criminal code remain separated by predictions of what the governor will accept, different approaches to changing some laws and 400 pages worth of text.

In a flurry of activity last week, the Missouri House and Senate each passed a version of the bill, which would mark the first major revision of the state’s criminal code since 1979.

The House bill, approved in a 130-24 vote Thursday, hews closely to proposed legislation that The Missouri Bar drafted over a period of several years.

But the Senate, in a 29-3 vote that came minutes after the House’s vote, approved a pared-down version to address concerns from Gov. Jay Nixon’s office about the size of the bill. The two versions will have to be reconciled before the legislative session ends May 16. The sponsors say they’re confident that will happen.

“I think there is a compromise to be had here,” Sen. Jolie Justus, D-Kansas City, told reporters after Thursday’s vote. Justus is one of the bill’s sponsors.

Although much work remains, The Missouri Bar hailed the two votes as a breakthrough.

“This seven-year effort to revise Missouri’s criminal code has resulted in a comprehensive and thorough bill that will better protect the people of Missouri,” Bar President Jack Brady said in a news release.

Nixon, however, is still expressing doubts. On Thursday, he told reporters “the bar is really high on this one.”
“There is simply no room for error,” he said.

Nixon threw a wrench into the debate over the code late last month when he said he’d prefer a more “manageable” series of bills rather than a single large bill. In response, the Senate shortened its version. Most of the changes to the Senate version were “truly technical in nature,” Justus said during debate last Monday.

“We did, in my opinion, shrink this unnecessarily,” she said. But, she added, “politics is the art of the possible.”

To accomplish that daunting task, the drafters took a new approach to one of the major goals of the revised code: more gradual transitions between the penalties for various felonies. As originally written, the bill created an “E” class of felonies to supplement the existing A, B, C and D classes. The shift required every class D felony to be relettered with an E.

In contrast, the Senate version now expands the possible range for sentences for existing class C felonies, without creating a class E. Senators referred to the new penalty tier of three to 10 years in prison as a “C plus” felony.

That seemingly minor change allowed the drafters to leave hundreds of statutes involving D felonies unchanged. Under the legislature’s protocols, any statute being amended is reprinted in full in the bill, no matter how much or how little of the statute’s language is altered. For instance, the original criminal code bill reprinted the entire section 32.057 — a 1,500-word statute mandating the privacy of tax information — for the sole purpose of changing a “D” to an “E.” Doing away with the need for that amendment alone saved six pages.

The Senate version also removed the chapter on firearms and weapons offenses, which are the subject of a great deal of other legislation this year. Altogether, the changes shrunk the Senate bill from 1,104 pages to 709.

The original bill altered 716 sections of statute. The new version touches just 393 — a savings of 45 percent. Justus joked Thursday that the printed bill was finally slim enough for her to hold with one hand.

The House version, however, keeps the class E felonies. The House sponsor, Rep. Stan Cox, R-Sedalia, defended his chamber’s version as the “more cohesive” approach.

“If you’re going to have an identified type of felony, it should have its own category,” he said Thursday.

It’s also not yet clear whether the Senate’s herculean edits will satisfy Nixon’s office. In an interview before Thursday’s vote, Cox said his sense was that the governor’s staff was less concerned about the page count of the bill than with the possibility that there might be “something bad” somewhere in its contents. Cox said the governor seemed to prefer to pass several separate bills instead of one all-encompassing revision.

“It wasn’t the overall size,” Cox said. “It was the approach in total, or in chunks.”

Rep. Chris Kelly, D-Columbia, a former judge who was heavily involved with the bill, said the governor’s criticism was “not consistent with logic” and that breaking the bill into pieces would only magnify the chance of error. He also noted that the legislation won’t go into effect until 2017, giving lawmakers time to fix any problems.
The Senate bill also was changed to address a provision that had been characterized as a “decriminalization” of marijuana laws. The Senate’s bill doesn’t require jail time for first-time possession of small amounts of the drug, but it does mandate a fine of $250 to $1,000.

Sen. Bob Dixon, R-Springfield and the bill’s co-sponsor, said current first-time drug offenders rarely get jail time anyway, but the possibility that they could requires them to have a public defender. The stiff minimum fine, Dixon said, “might get their attention.”

The House, in contrast, kept first-time marijuana possession as a class A misdemeanor, as current law requires. Cox said the point of the bill is to improve the structure of the law, not to make substantive changes, and he resisted several calls to change various penalties.

“Those are public policy arguments that I think should be argued separately than in a 1,000-page bill,” Cox said.

The bills are SB491 and HB1371.