Jefferson City News Tribune, March 16
Constitutional amendment fever:
Before elevating additional activity to a constitutional right, Missouri lawmakers may want to heed the advice of Robot B-9.
The robot, you may recall, was programmed to warn the stranded family of impending danger on the 1960s television program, “Lost in Space.”
Some lawmakers - in past sessions and, notably, during this session - perceive attacks on what they consider traditional behavior and activities.
A tendency has been to repel those attacks by enshrining specific activities and behaviors as constitutional rights.
A partial list of proposed constitutional amendments includes:
- A right to farm.
- A right to hunt and fish.
- A right to hold a rodeo.
- A right for parents to raise their children as they see fit.
Are these proposals a reasonable response to a real threat or an over-reaction fueled by paranoia?
Two factors aggravating this constitutional amendment fever, if we may call it that, are Proposition B and term limits.
Proposition B was an animal welfare law - not a constitutional amendment - approved by voters, but changed drastically by lawmakers before it became effective.
The action provided a compelling example of why a constitutional amendment is preferable; it is impervious to legislative tampering.
In addition, term limits fuel a tendency among lawmakers to pass measures with greater durability. Perhaps it is political equivalent of the psychological longing to create something that continues after we’re gone.
The tendency to enshrine activity and behavior as a constitutional right, however, presents both short-term and long-term consequences.
The immediate concern is if a constitutional amendment permits abuse, the error cannot be rectified quickly.
The long-range consequence, as we wrote in this forum on Feb. 2, is: “If we continue on this inane path of continually amending the constitution, representative government eventually will become superfluous.”
A constitution is a framework for governing; it is not a law book or regulation manual.
To paraphrase Robot B-9: Danger, Missouri Legislature, danger!
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Columbia Daily Tribune, March 17
Fighting to keep government open:
Perhaps the most enduring canard regarding public governance is that good people won’t serve in office unless surrounded in secrecy; its dichotomous cousin asserts officials can only do business openly behind closed doors.
By now we know the natural tendency of public officials doing public business to avoid publicity. If you notice a hopeless tangle of the “p’’ word in the above sentence, you get the picture.
So, for years governments have built open meetings and records laws, and for just as many years operating officials have resisted. You can see a current version of this struggle in the list of groups - including organizations for cities, counties and other local government agencies - opposing a new law sponsored by Sen. Kurt Schaefer that would make long-needed improvements in Missouri’s Sunshine Law.
The enforcement mechanism is one of the primary faults in the current Missouri statute. After proclaiming openness as the basic requirement, the law is routinely ignored because enforcement depends on lawsuits brought by private parties against the government to prove officeholder offenders “purposefully” or “knowingly” broke the law.
Schaefer’s new version would retain larger fines for “purposeful” violations but would allow small-fine application of the law without having to prove “knowing” violations.
The executive director of the St. Louis Municipal League raised the usual complaint: It’s wrong to penalize volunteers on school boards and other public agencies for accidentally violating the law. But to follow this reasoning is to say any citizen can be excused from following any law out of ignorance, and the appertaining agency will typically be seen as the primary offender.
The lowered fine for easier prosecution is a step forward, but the best move would be for prosecutors at state and local levels to assume responsibility. They wouldn’t even have to file lawsuits to make a huge difference if, upon receiving and examining a complaint, they would summon the alleged public official offender for an explanation of the penalties involved if the offense is not acknowledged and corrected. If routinely followed, this tactic would quickly bring the desired result.
Newspapers and other media often openly accuse public officials of secrecy, but officials just as routinely ignore these charges. They might say they don’t “know” they are violating the law, but one thing they surely do “know” is they can do so with almost certain impunity.
Schaefer’s law should be passed. Let us commend Schaefer for doing the right thing and urge his colleagues to agree.
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St. Joseph News-Press, March 17
Missing the mark on wood-burning stoves:
A wood stove regulation proposed by the Environmental Protection Agency is generating a heated response from rural residents.
Burning wood to heat a home is nothing new - it’s been going on for, oh, thousands of years. In Northwest Missouri and Northeast Kansas, many residents prefer wood because it’s an affordable, available and reliable source of fuel.
The EPA isn’t proposing to ban wood heat (good luck with that if they were) but would pass a strict regulation on stove manufacturers. “There’s not a stove in the United States that can pass the test right now - this is the death knell of any wood burning,” said Reg Kelly, who owns a stove manufacturing business in Mountain Grove, Mo.
Defenders say current stoves would not be affected. Still, the EPA’s proposal is over-reaching bureaucracy at its best that would add costs to new stoves and fail to address the problem it is supposed to correct.
Regulators fail to take into account wood stoves primarily are used in rural locales where air quality is a different issue than urban areas. It’s comparable to imposing regulations on septic systems because of environmental problems with a city sewer.
Of greater concern is the cost burden will fall disproportionately on low-income households. The proposal does not target suburban homes that use fireplaces for ambience on winter nights, but families including elderly and children who have one source of heat to fight off the cold.
The escalating price of propane fuel makes wood and alternative heating even more important. There are currently about 12 million wood stoves in operation in the United States and the number has grown in the past decade.
In remote locations, wood heat could be the only option. Natural gas doesn’t serve rural areas and electric service can prove unreliable. Power outages aren’t so rare even in our cities that residents don’t know the value of a back-up heat source.
Not to be overlooked are the environmental benefits - yes, benefits - of wood burning. Burning downed trees in a home stove clears up waste while cutting down on fossil fuel use.
Missouri is one of the first states to respond to the wood stove rule by proposing legislation to thwart its implementation. It’s a sign this regulation hits close to home and hearth in the Midland Empire.
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St. Louis Post-Dispatch, March 14
Proposed criminal code revision is a lost opportunity:
For eight years, a mighty effort has been underway to revise Missouri’s criminal code, the sections of state law that lay out what is a crime and how various crimes are punished. The effort was led by the Missouri Bar and included prosecutors, private defense lawyers, public defenders, judges, legislators and legal scholars.
They did yeoman’s work. It has been 35 years since the code was last revised. Like a basement that has gone 35 years without cleaning, the code has become cluttered and disorganized. Lots of new stuff has been added. Things are in the wrong place. Some laws are contradictory, sentences are uneven. Stuff has been stacked chock-a-block in the code, making it hard for the court system to sort matters out.
The code revision was presented to the Legislature last year, but proved too big to swallow without more chewing. The revision has now been presented again in the form of two massive bills. Senate Bill 491 and House Bill 1192 are each more than 1,100 typewritten-pages long and differ in slight, but important, ways.
The Senate began floor debate on its bill last week. The full House hasn’t take up its version yet, but already there is muttering that it’s too complicated to pass this year. Most legislators are not lawyers and have very little understanding of the criminal justice process, except that they want to be perceived as tough on crime. There is some worry that a few of the sentencing revisions contained in the proposed code may make them look weak.
They shouldn’t worry. The criminal code revision heavily reflects the influence of the state’s prosecuting attorneys, who are hardly soft on crime. One version of it, preferably the Senate’s, should be passed.
But it’s not as good as it could have been and represents a lost opportunity to (a) reduce crime and (b) save money.
Both goals could be accomplished by encoding sentencing reform to divert more nonviolent offenders into drug and alcohol programs and strictly supervised probation. This eventually would reduce prison populations. But in a phony tough-on-crime Legislature, that common-sense idea is controversial, so reducing prison populations never was a primary goal for the Missouri Bar committee members.
The Legislature did take tentative steps in 2012 toward smarter sentencing, passing a bill to keep nonviolent offenders guilty of parole violations under strict supervision rather than returning them to prison. Studies showed 71 percent of prison admissions resulted from probation or parole violations.
Since it costs the state $23,000 a year to house each inmate, closing one 1,000-inmate prison could save $23 million. Spend half of that on rehab and close supervision, you come out ahead and reduce the number of repeat offenders.
Former Missouri Supreme Court Chief Justice William Ray Price, a Republican who was appointed by Gov. John Ashcroft, has been the leading proponent of this approach. Now in private practice with the St. Louis firm of Armstrong, Teasdale, Mr. Price said that while he supports the Senate version of the criminal code revision because it’s closer to the Bar committee recommendations, it won’t reduce prison populations very much, if at all.
“There will be a few sentence reductions, so in that way it’s marginally helpful,” Mr. Price said. “But it really wasn’t designed to reduce sentences. Nobody wants to look soft on crime.”
Whatever sentence reductions might come would result from giving prosecutors more discretion in charging people accused of nonviolent felony crimes, those that are punishable by prison time. Crimes that result in county jail time and/or fines are generally classified as misdemeanors.
Right now Missouri has four felony classifications, with Class A felonies being reserved for the most serious crimes and Class D for the least serious. Right now a Class D felony conviction can get you no more than four years in prison. Under the proposed revision, a Class D felony could result is as many as seven years. The proposed new code creates a Class E felony category with a maximum sentence of four years. Fines also go up across the board, and the $20,000 cap on fines would be removed. This even though most ex-felons have trouble finding jobs that allow them to pay even meager fines.
The proposed new code gives prosecutors more discretion for nonviolent crimes, including drug cases. If someone is looking at a maximum of seven years or a maximum of four, he might be more inclined to reach a plea bargain. Similarly, someone who is offered a year in jail on a misdemeanor plea versus four or seven years in prison might be inclined to skip the trial.
This notion worries former Missouri Supreme Court Chief Justice Michael Wolff, now dean of the St. Louis University Law School. In some Missouri counties, he said, some 70 percent of nonviolent offenders are sentenced to prison.
“Prosecutors say, correctly, that there are different ’cultures’ of sentencing from county to county,” Mr. Wolff said. “What ’culture’ really means is that Missouri has not one criminal code, but 115 - one for each county plus the city of St. Louis. There not only are wide disparities in sentencing but also in charging decisions by prosecutors. … Conduct in one county will get you a misdemeanor at most, but in many rural counties will get you a felony conviction.”
Still, if politics is the art of the possible, SB 491 might be as good as it’s possible to get in Missouri in 2014.
The state’s public defenders have signed off on it. “Overall we think it’s carefully balanced,” said Joel Elmer, division director of the Office of Public Defender. “The size of the prison population will be about the same. Who is in prison could be different. There will be fewer nonviolent offenders and more repeat offenders.”
While the criminal code revision won’t save any money, and while it doesn’t reflect evidence-based thinking about the best way to deal with nonviolent offenders, it’s probably all a backward-thinking Legislature will be willing to endure. And even that may be a struggle.
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