SWEEPING SENTENCING CHANGES AWAIT OK

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.