Press Release: Rep. Chris Kelly submits open letter about criminal code legislation

I see by the papers that Governor Nixon has expressed reservations regarding the revision of the Criminal Code and has threatened to veto it.  He says that the very size (more than 900 pages) of the legislation (HB 1371 & SB 491) makes it likely that a mistake will occur.

In order to determine whether the Governor’s trepidation is well founded we need to evaluate the process.  The Missouri Bar has long been advocating a revision in our outmoded and clumsy Criminal Code.  The Bar appointed a committee to consider and recommend improvements.  That committee studied the issue for almost five years and sent it to the Bar’s Board of Directors, which approved it and asked the General Assembly to enact the Committee’s work as a complete revision of the Code.  Three years ago Chairman Cox introduced the Bar recommendation almost verbatim as did Senator Justus, ranking minority member. Both Judiciary Committees conducted hearings but, understanding that any legislation this extensive needs time to marinate, no action was taken.  Last year Chairman Cox and Senator Justus both reintroduced the bill. In the House Chairman Cox broke the bill into three parts, appointed three subcommittees and charged them to conduct hearings and evaluate their individual portions of the legislation. Senate Chairman Dixon embarked on a similar course of thorough review.  I believe I have heard Chairman Dixon say that between his Committee and the Joint Interim Committee, upon which Cox, Justus and Dixon served, there were seventeen separate work sessions on the bill and that was exclusive of the sessions conducted by either the House Committee or its Subcommittees.  As ranking member on Chairman Cox’s Judiciary Committee, I have participated in the development of this legislation and am not sure that I have ever seen a bill so meticulously vetted-first by the Bar over a five-year period and then by both the House and Senate over three years.  However, I understand that many politicians may be afraid to vote for or sign a thousand page bill because of the eternal problem of mistake or unintended consequence.  For that reason, both bodies have built in significant opportunities for review.  Both Chairmen Cox and Dixon, have resisted efforts to include substantive changes in criminal law.   Their reasoning is that the bodies should face only one decision-whether we should reform the Code-rather than two decisions-whether to reform the code and to make substantive changes in law.  The Chairmen wisely recognized that the inclusion of substantive changes would greatly increase the possibility of unintended error.

Even with all this review our process does not guarantee freedom from error. Therefore a substantial array of post passage review has also been constructed.  The Supreme Court has agreed to send the bill to its Standing Committee on Criminal Procedure for review after passage (see the attached letter).  The Governor will conduct his normal due diligence and if he should discover error, he may exercise his right to veto and allow the Legislature  to make corrections during the veto session by calling us into special session contemporaneous with veto session.   The bill now contains a delayed effective date to January 1, 2016.  I will offer an amendment  to further extend the effective date to January 1, 2017, a change that has already been included in the proposed floor substitute for SB 491.  Majority Leader Diehl has suggested that we could also call ourselves into special session during Veto Session for the limited purpose of making any needed corrections.  Rep Diehl’s approach requires significant bipartisan cooperation and I support it.  This all means that after we pass the bill, the Court Committee will study it, the Governor will review it, and the legislature will have at least four chances to fix any errors, should any emerge.

During my eighteen years in the General Assembly I have seen many long and complex bills but I have never seen one with this degree of initial vetting and post passage review.  Mistakes are always possible but in this case the General Assembly and the Missouri Bar and Bench have done all that is reasonably possible to provide comfort to even the most timid politicians.

It is also worthwhile to evaluate what will happen if the bill does not pass this session.  We all recognize that the Criminal Code is significantly outdated and unwieldy.  Reform is long overdue.  Of the four people who know the most about the code revision-Chairman Cox, Chairman Dixon, Senate Minority Leader Justus and myself, the House ranking minority member-three of us will not be returning next year.  If we do not pass it this year, it almost certainly will not happen in the foreseeable future.

Reasonable caution in Governors and Legislators-even legislators who are running for statewide office-is prudent.  We should not, however, allow political timidity to derail the passage of this long overdue, thoroughly vetted, and vital legislative reform.

-Chris Kelly

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