Synopsis: Missouri's jury sentencing laws for non-capital criminal and quasi-criminal offenses are outdated and fail to serve the public interest. To meet the needs of modern society, the Missouri legislature should make a complete change to judicial assessment of punishment for those offenses.
Like most states, Missouri's affinity with jury sentencing began in pre-statehood days, fostered by lingering memories from colonial times of too much authority being placed in the hands of English judges. Unlike the vast majority of states and the federal system, Missouri stubbornly hangs on to this anachronism in the face of overwhelming evidence that jury sentencing in non-capital criminal1 and quasi-criminal cases2 is outdated and fails to serve the ends of any legitimate modern sentencing goal or philosophy. There is no better time than the present for the Missouri General Assembly to bring Missouri and Missouri's juries out of the dark ages into an enlightened era of modern criminal sentencing.3
As early as 1815, the General Assembly of the Territory of Missouri enacted a law which adopted the common law of England but which specifically prohibited the application of British statutes respecting crimes and punishments.4 By 1831, the General Assembly of the State of Missouri had enacted legislation which gave juries the authority to assess punishment in all criminal trials except those in which a jury was waived or the defendant pled guilty.5 In a jury trial, the judge could only impose punishment if the jury could not agree.6 By 1879, Missouri judges were given the additional authority to reduce a jury's sentence if it was found that "the punishment assessed by a jury, if, in its opinion, the conviction is proper but the punishment assessed is greater than, under the circumstances of the case, ought to be inflicted."7 The judge could not exceed the jury's assessment of punishment. That principle has remained in effect in Missouri's sentencing statutes to the present.8
As Missouri's criminal justice system, armed with jury sentencing, embraced the twentieth century, many abuses and injustices began to surface which resulted in the enactment of a series of laws diminishing jury sentencing authority. Harsh habitual criminal statutes had been enacted early in Missouri's history which mandated the maximum sentence of imprisonment, even if the maximum was life imprisonment, for all felony offenses if the defendant had a prior felony conviction.9 Under these laws, the jury was presented evidence of prior convictions because it was the jury's responsibility to determine guilt and to determine whether the accused was subject to the mandatory maximum sentence.10 This inflexible law not only resulted in unjustly harsh punishment, it prejudiced a jury's determination as to whether or not the defendant was guilty by displaying a defendant's prior criminal record before the jury. In 1959, the legislature recognized the need to keep the prejudicial evidence of prior convictions from the jury and to place sentencing discretion in the trial judge in cases in which prior offender status was proven outside of the hearing of the jury.11
In 1977, with the legislature's comprehensive revision of the criminal code, the general rule of jury assessment of punishment was retained. However, judges also retained complete sentencing authority in felony jury trials in which it was pled and proven that the defendant had at least one prior felony conviction and in all cases in which the defendant made a written request for judge sentencing.12 In 1983, the legislature recognized that Missouri's jury sentencing laws were creating loopholes for repeat offenders in alcohol related traffic offenses, so another exception was enacted which removed sentencing authority from jury to judge.13 In 1989, the legislature created the status of "prior drug offender" and "persistent drug offender" and made sure that sentencing for those offenders was placed with the judge rather than the jury.14 In 1990, the legislature recognized that problems persisted in jury sentencing because of the inherent conflict between evidence, such as prior convictions, being relevant only for purposes of sentencing but irrelevant and prejudicial to the jury's determination of guilt. Consequently, another exception to jury assessment of punishment was added when the defendant was charged and proven to be a "persistent misdemeanor offender." More significantly, the 1990 amendment to § 558.016, RSMo, broadened the application of prior offender status to "offenses," replacing the former "class B, C or D felony."15 For the first time, Missouri law provided fr the removal of sentencing authority from jury to judge in all cases of misdemeanor and infraction when the offender is charged and proven to be a prior (felony) offender or persistent misdemeanor offender.
In 1996, another exception removing sentencing from jury to judge was enacted in cases in which the defendant was charged and proven to be a "persistent sexual offender" or a "predatory sexual offender."16 The legislature has also seen the necessity to remove sentencing from jury to judge in prosecutions under the adult abuse law in which prior convictions for violations of orders of protection are pled and proven.17
In view of the many exceptions carved into the sentencing statutes and the fact that the vast majority of all criminal cases are disposed by guilty pleas, Missouri judges are the sole sentencing authority in well more than 90% of every category of offense: misdemeanor, felony, traffic, and municipal ordinance violations.18 The logical inquiry then becomes, "Is there any rational basis, in the public's interest and in the interest of justice, to keep jury sentencing for considerably fewer than 10% of non-capital criminal cases in Missouri?" An analysis of sentencing by judge and jury under Missouri's experience and under the experience of the vast majority of states answers the question with a resounding, "No!" Such an analysis clearly shows that a complete change to judge sentencing in all non-capital criminal and quasi-criminal cases is necessary to serve the public's interest in achieving modern sentencing goals.
As earlier noted, many states initially placed sentencing authority in juries as a reaction to the harsh penalties imposed by royal judges in England and in the colonies and out of distrust of government power. The practice was further supported by the lack of substantial differences in training, expertise, and competence between colonial judges and juries.19 However, the vast majority of those states have gradually changed their views and their laws, as modern sentencing decisions demand considerable expertise based upon detailed information about a defendant, along with a working knowledge of complex sentencing statutes and the policies and programs of their correctional systems and parole boards. The vast majority of commentators and authors of national studies have long advocated the abolition of jury sentencing in non-capital criminal cases.20 By 1970, only 13 states retained any form of jury sentencing in non-capital cases.21 By 1980, that figure had dwindled to Missouri and six other states.22 In 1982, Tennessee made the change from jury sentencing to judge sentencing in non-capital criminal cases.23 In 1997, Oklahoma enacted legislation which placed full sentencing authority in the judiciary within the purview of sentencing matrices.24 That leaves only Missouri and four southern states which place any significant sentencing authority in juries in non-capital cases.
Missouri stands alone as the only state which has not either made a complete change to judge sentencing or implemented procedures to better inform juries in a second-stage trial.
The other states which have not made the change to judge sentencing Arkansas, Kentucky, Virginia, and Texas have compromised on a bifurcated trial system in an attempt to inform juries of information not relevant to the determination of guilt but critical to informed sentencing. Texas has had such a procedure since 1966, much longer than the other three states.25 Kentucky has operated under a bifurcated jury system for felony cases since 1986.26 More recently, Virginia and Arkansas adopted the two-stage trial procedure in 1994 for felony cases.27 Although each state's law varies regarding the type and extent of evidence which can be presented to the jury in the sentencing phase of the trial, the procedure is basically the same as provided in Texas. Under Texas law, upon the request of the defendant, the jury trial is divided into two stages similar to the bifurcated jury trial procedure mandated by the United States Supreme Court in death penalty cases.28 In the first stage, only evidence relevant to the crime charged is presented to the jury.29 If the jury returns a verdict of guilty, a second trial before the same jury is conducted and evidence relevant to sentencing is presented to the jury. The jury is then required to assess the punishment. The extent and nature of the evidence which can be offered in the second stage of the trial is frequently a maater of controversy and alleged error on appeal.30 As recognized by many legal scholars, the bifurcated trial system is an expensive, time-consuming, unnecessary, and antiquated approach to sentencing.31 It is an impossible and unnecessary undertaking to attempt to educate every individual jury upon all sentencing alternatives, available conditions of probation, and parole policies in an effort to make each jury an expert on sentencing.32 It is an unnecessary and time-consuming process to attempt to present to a jury a defendant's past conduct and character, which can much more comprehensively and efficiently be presented to a judge in a pre-sentence investigation report. There is no logic in attempting to make each jury an expert in sentencing and in complex sentencing laws when the system has developed that expertise in a judiciary which already exercises full sentencing authority in well over 90% of all non-capital criminal cases. This is not an alternative which would further the public's interest and certainly not one the legislature should adopt to bring Missouri into the modern era of criminal sentencing.33 The legislature should not fall victim to a political compromise which would compound, rather than alleviate, weaknesses in Missouri's sentencing laws.
In the small percentage of cases in which juries actually assess punishment in Missouri, the current law places the awesome responsibility on juries to choose a punishment from a broad range of fine and incarceration possibilities,34 then blindfolds them in performing the task. Throughout the trial, the jury is prohibited from hearing evidence other than that directly relevant to the crime being charged. Under most circumstances, the jury cannot be presented evidence of a defendant's social and work history, family life, arrests, convictions, or substance abuse.35 The general rule is that juries are not permitted to hear of a defendant's prior convictions or prior misconduct because of the prejudicial effect it has on the jury.36 If prior convictions come into evidence under one of the exceptions, the prosecutor is strictly prohibited from arguing that punishment should be enhanced because of the prior criminal record.37
While many states are passing truth-in-sentencing laws to bring the time an offender actually serves in custody more in line with the length of the sentence,38 Missouri law continues to mislead juries by making them believe the punishment they choose will be the punishment the offender is required to serve. For most felony offenses, the offender will, in fact, serve only a small percentage of a prison term assessed. For class C and D felonies, that percentage often is as low as 15% under the policies of the Missouri Board of Probation and Parole.39 For seven statutorily designated "dangerous felonies," the Missouri legislature has brought the actual time served more in line with the sentence by passing the 85% rule.40 Regardless of whether the offender will likely serve only 15% of the sentence or 85% of the sentence, the jury is prohibited from hearing or considering any information about parole.41 A jury cannot even be told of the possibility of probation, let alone the many alternatives that may be employed as conditions of probation to rehabilitate the defendant under strict supervision. These include drug and alcohol rehabilitation programs, drug courts,42 120-day callback from prison,43 shock detention in jail for up to 120 days on felonies and 15 days for misdemeanors,44 restitution,45 work release,46 electronic monitoring, counseling, community service,47 community-based treatment programs,48 and a myriad of others. Missouri's laws keep juries in the dark when it comes to sentencing.
Provided only with the evidence of the specific crime on trial, the jury is given the nearly impossible task of choosing an appropriate punishment. If the jury asks any questions during deliberations about probation or parole, such as the actual time the defendant will spend in prison before being eligible for parole, whether probation can be granted and, if so, on what conditions, it is most likely to be met with the response that the court is unable under the law to answer the question and the jury must decide the case based upon the evidence before it and the instructions of the court.49 It is no wonder that citizens lose faith in our justice system after being required to serve on criminal juries, only later to find out that material facts relevant to sentencing were intentionally hidden from them during the trial.
In stark contrast, Missouri law gives judges the broadest scope of inquiry to allow them to arrive at an appropriate punishment.50 This has been held to include a complete social history including prior educational, criminal, family and employment information, arrests which have not even resulted in convictions, prior unlawful conduct not resulting in arrest or conviction, and information concerning the character of the defendant.51 This information can be made available to the judge in a pre-sentence investigation report conducted by the Missouri Board of Probation and Parole or directly from the prosecuting attorney.52 A judge uses this information to first determine whether probation should be considered and, if so, what conditions should be ordered to achieve the desired sentencing goal, whether it be retribution, deterrence, rehabilitation, restitution or a combination thereof. As an additional tool, judges can require drug testing and psychological evaluations prior to imposing sentence.53 A judge can take into consideration the prevailing policies of the Missouri Board of Probation and Parole to determine the approximate percentage of a term of imprisonment a defendant will actually be incarcerated before being conditionally released.54 A judge is aware of all the sentencing alternatives, including institutional and community treatment programs, which are available. Absolutely none of this information and none of these sentencing tools are available to juries. Although a judge has the authority to grant probation on or reduce a jury's sentence of imprisonment, the material information which juries cannot receive is critical to an informed decision in felony cases on the appropriate length of imprisonment or whether punishment should be in the form of a fine, a jail term, or a sentence in the Missouri Department of Corrections.55 Such information is also critical in choosing an appropriate penalty in misdemeanor and ordinance violation cases in which the range of punishment includes a broad range of fines, jail terms, or both.56
There is even a question as to whether jury assessment of punishment conflicts with the victims' rights law as enacted by the Missouri legislature.57 The law gives the victim of a felony offense the right to have meaningful input in the sentencing process concerning the impact of the crime and even to make a recommendation regarding the sentence.58 Such testimony is inadmissible during a jury trial when the jury is required to fix the punishment because of the prejudicial impact upon the jury's determination of guilt. Although the victim can later be heard by the judge before sentence is imposed, the punishment has already been set by the jury and the judge cannot exceed the jury's punishment in imposing the sentence. Consequently, jury sentencing violates the spirit, if not the letter, of the victims' rights law.
In 1994, Missouri's legislature followed the lead of several other states and formed the State of Missouri Sentencing Advisory Commission in an attempt to ensure certainty, consistency, and proportionality of punishment, recognize the impact of crime on victims, and provide protection for society.59 Currently, 20 states, including Missouri, have enacted sentencing guidelines with varying degrees of enforceability.60 The Missouri commission promulgated sentencing guidelines which judges are encouraged, but not mandated, to follow. However, if Missouri follows the trend set in other states, judges will eventually be required to give written justification for departure which will be a matter for review on appeal.61 In application, the concepts of jury sentencing and sentencing guidelines are difficult, if not impossible, to reconcile. Since juries cannot even be informed of a defendant's prior criminal record or the alternative of probation, they certainly cannot be called upon to consider a guideline for sentencing based primarily upon prior criminal convictions and probation alternatives.62
A fundamental weakness of jury sentencing that is closely related to its incompatibility with sentencing guidelines is that jury sentencing inherently results in unjustly disparate sentences and frustrates Missouri's policy to reduce disparity in sentencing. Each jury draws on the opinions and experiences of its individual members in coming to a consensus as to an appropriate sentence. However, those opinions and experiences change with each jury and there is no continuity or consistency from one sentence to another. A judge develops a policy of sentencing within certain parameters as he or she is called upon to sentence numerous offenders. A judge recognizes that justice requires treating defendants basically the same for essentially the same misconduct, with appropriate adjustments for differences in factors such as prior criminal conduct, degree of culpability, prior substance abuse and rehabilitative efforts -- information to which a judge has access and a jury does not. Informing juries of sentences of defendants in similar cases or the sentences of co-participants in the crime on trial is strictly prohibited under the rules of evidence.63 Most disparity in judge sentencing is based upon an informed evaluation of the facts and the application of modern sentencing statutes and resources with specific sentencing goals in mind. Disparity in jury sentencing is based upon the unique make-up, opinions, and experiences of each individual juror and the unfortunate lack of material information relevant to sentencing.
Sentencing disparity is certainly not eliminated by a change to judge sentencing, but unjust disparity is greatly reduced. Within each circuit, judges are aware of the sentencing policies of their fellow judges and usually are hesitant to vary greatly therefrom. Pre-sentence investigation reports from the Missouri Board of Probation and Parole inform the judge of where the defendant falls within the sentencing guidelines. The report also informs the judge of any sentence received by a co-participant in the same crime or series of crimes. Most judges make it a point to consider a sentence given to a co-defendant when called upon to sentence his or her co-participant in the same crime. As Missouri courts take the lead in state-wide court automation,64 the availability of information concerning sentencing policies of all judges throughout the state will be greatly enhanced. This certainly does not mean that all judges will automatically agree with and conform to the sentencing policies of judges in other circuits, nor should it mean that. A lack of uniformity in judicial sentencing may reflect geographic factors,65 such as differences in public apprehension of crime among communities, differences in the types of crimes causing particular concern within a community and the need for enhanced punishment as a deterrent, differences in local resources such as incarceration facilities, substance abuse rehabilitation programs and alternative sentencing programs, and differences in local prosecution. Such disparity is necessary in arriving at just sentences which further the public's interest. Sentences can and must reflect local attitudes toward a given crime if the system is to serve any purpose at all.66
Jury sentencing, and the ever-present alternative of trial with jury sentencing, has worked against the public interest and against the imposition of just sentences in another significant way. Missouri law gives an undeserved windfall to defendants who have no real defense to a criminal charge, but who can exercise their right to jury trial simply to hide an unfavorable past from sentencing consideration. In many such cases, a prosecutor is put in the position of having to either enter into a too lenient plea agreement or proceed to jury trial knowing that the jury will be prohibited from hearing about the defendant's past. Likewise, the judge is placed in a dilemma when presented with a plea agreement which does not adequately consider a defendant's character and history. The judge knows that such information should be considered in determining the appropriate punishment, but it will never reach the jury if the judge rejects the plea agreement. The judge must either accept the plea agreement for an inappropriate sentence or force the time and expense of a jury trial with the probability that the end result will be the same as the plea agreement because of Missouri's antiquated sentencing laws.67
Current statutory exceptions to jury sentencing based upon certain prior convictions do not come close to covering all prior convictions or all aspects of a defendant's character and past which should be considered for sentencing but which must be withheld from the jury. For example, if a defendant is charged with a felony or misdemeanor stealing offense or a municipal ordinance shoplifting offense and he has a prior misdemeanor stealing or any number of prior municipal ordinance shoplifting convictions, that defendant can completely hide his prior record from consideration in assessment of punishment by exercising his right to jury trial. The legislature's piecemeal erosion of jury sentencing has been a well intentioned but inadequate response to the problem.
Some critics of judge sentencing take the position that jury sentencing should be preserved as a sounding board of the community to protect against some judges who may be too lenient in sentencing. This argument ignores the realities of current law and current practice in the criminal courts in Missouri. Under Missouri law, the right to jury sentencing is a right of the defendant, not of the state.68 If a defense attorney feels he or she can get a more lenient sentence for a client from a judge, current law gives the defendant the absolute right to judge sentencing.69 If the defendant wants a jury trial, he can always waive jury sentencing.70 He can also receive judge sentencing by pleading guilty or by waiving a jury trial altogether and requesting a trial before the judge. Many critics who advance the sounding board argument are using it as a veiled attempt to retain the ability to manipulate juries in the sentencing process.
Other critics of judge sentencing echo the populist view of the colonists that it puts too much power in the judiciary and it is a function which should remain with lay juries. That may have been true in the eighteenth century, but it certainly is not true in the advent of the twenty-first century.71 That argument today rings hollow in the face of modern sentencing codes, sentencing guidelines, alternative sentencing statutes and procedures, overcrowded prisons, and the complex policies, rules and conditions of probation and parole. Most importantly, it rings hollow as far as advancing the public's interest in having sentences imposed which take into consideration all relevant information and which utilize all available modern resources to wage war on criminal behavior. If the sincere motive of opponents of judge sentencing is to choose a sentencing procedure which, as a whole, results in the most informed, just, and effective sentences throughout the state, then they have not come close to making a case for the retention of jury sentencing in any form in non-capital criminal cases.
The historical justification for jury sentencing laws is obsolete and has been completely superceded by the needs of modern society. Sentencing must be entrusted to those who can most effectively receive and apply all available information and resources to combat criminal behavior. Jurors in Missouri do not want to be given a task that the system does not, and cannot, equip them to effectively perform. They no longer want to be fooled and manipulated by current sentencing laws. It is time for Missouri to join the modern era of sentencing and provide for judge sentencing in all non-capital criminal cases.72
Endnotes
1 As a matter of constitutional due process, first degree murder (death penalty) cases require a bifurcated jury trial procedure as approved in Gregg v. Georgia, 428 U.S. 280 (1976), and enacted in § 565.030, RSMo 1994. This article is not directed at death penalty cases but at all other criminal and quasi-criminal jury trials, including felony, misdemeanor and city ordinance violations, which currently provide for jury assessment of punishment.
2 Sections 479.130, 479.150, and 479.200, RSMo 1994; City of Independence v. Deffenbaugh Indus., Inc., 804 S.W.2d 383 (Mo. App. W.D. 1990). The rationale to change to judge sentencing applies equally to jury trials involving charges of municipal ordinance violations. Consequently, those trials should be considered included in all references in this article to non-capital criminal cases although, technically, they are quasi-criminal cases.
3 The constitutional right to jury trial does not include any constitutional right to jury assessment of punishment. State v. Hamey, 67 S.W. 620 (Mo. 1902).
4 Laws of the Territory of Missouri, enacted by the General Assembly during the December 1815 session, which reads, in part:
Provided, however, That none of the British statutes respecting crimes and punishments shall be in force in this territory, nor shall any person be punished by common law, where the laws and statutes of this territory have made provision on the subject, but where the laws and statutes of the United States and this territory have not made provision for the punishment of offences, the several courts may proceed to punish for such offences, Provided, The punishment shall in no case, be other than fine and imprisonment, and the term of imprisonment shall not exceed two months, and the fine shall not exceed one hundred dollars.
5 1831 Mo. Laws. Chapter XXV § 1.
6 Id., Chapter XXV, § 2.
7 Section 1933, RSMo 1879.
8 Section 557.036.3, RSMo Supp. 1997. All references to "jury sentencing" in this article refer to jury assessment of the maximum punishment since the judge imposes the actual sentence and can reduce the punishment or grant probation, but cannot increase the punishment.
9 Section 4461, RSMo 1919 (later repealed); it was noted in State ex rel. Stewart v. Blair, 203 S.W.2d 716 (Mo. banc 1947), that this provision had been in Missouri law for 112 years.
10 State v. Wiggins, 360 S.W.2d 716 (Mo. 1962).
11 Section 556.280, RSMo 1959; State v. Bryant, 538 S.W.2d 340 (Mo. 1976).
12 Section 557.036, RSMo Supp. 1997.
13 Section 577.023, RSMo 1994.
14 Section 195.275, RSMo 1994.
15 Section 557.036, RSMo 1994. "Persistent misdemeanor offender" is defined in § 558.016, RSMo, as one who has pleaded guilty to or has been found guilty of two or more class A or B misdemeanors, committed at different times, which are defined as offenses under chapters 195, 565, 566, 567, 568, 569, 570, 571, 572, 573, 574, 575, and 576, RSMo.
16 Section 557.036, RSMo Supp. 1997; "persistent sexual offender" and "predatory sexual offender" are defined in § 558.018, RSMo Supp. 1997.
17 Sections 455.085.7 and 455.085.8, RSMo 1994.
18 Office of Missouri State Courts Administrator, Missouri Judicial Report Supplement, Fiscal Year 1997, table 17 and table 22-A. Note: The statistical reports currently do not contain a breakdown of judge versus jury sentencing in jury trials; the estimated percentage of judge sentencing is based only on guilty pleas after subtracting the dismissals, since dismissals involve no sentence.
19 National Committee on Law Observance and Enforcement, Report on Criminal Procedure, 23-28 (1931).
20 Craig Reese, Jury Sentencing in Texas: Time for a Change?, S. Tex. L. Rev. 323 (1990); Anthony P. Giorno, Sentencing In Criminal Cases: How Great the Need for Reform?, 13 U. Rich. L. Rev. 899 (1979); Jack M. Kress, Who Should Sentence: The Judge, The Legislature, Or . . .?, The Judges Journal, 13 (Winter 1978); National Advisory Commission on Criminal Justice Standards and Goals, Task Force Report on Courts, Standard 5.1, 110 (1973); The President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts (1967).
21 Gary Taylor, Jury Sentencing: A Last Stand in Six States, Special to the National Law Journal, 2-7, January 19, 1987.
22 Id. at p. 3.
23 Tenn. Code Ann. § 40-35-203 (1997).
24 1997 Okla. Sess. Laws, 133 (Truth in Sentencing Act); Note: this law was initially given an effective date of July 1, 1998, but the effective date was extended until July 1, 1999, in the July, 1998, special session of the Oklahoma General Assembly.
25 Tex. Crim. Proc. Code Ann. § 37.07 (West Supp. 1997).
26 Kr. Rev. Stat. Ann. § 532.055 (Michie 1996).
27 Va. Code Ann. § 19.2-295.1 (Michie 1994); Ark. Code Ann. § 16-97-101 (Michie Supp. 1997).
28 See Gregg v. Georgia, note 1.
29 Tex. Crim. Proc. Code Ann. § 37.07 (West Supp. 1997).
30 Matthew DeKoatz, Leticia Dominguesz, and Robert Dinsmoor, Assessing Punishment: What Should the Jury Know?, Texas Bar Journal, April 1992, at p. 355.
31 Reese, note 20.
32 Id. at 333.
33 Giorno, note 20, at 909; Note, Jury Sentencing in Virginia, 53 Va. L. Rev. 968, 998-1000 (1967); Note, 60 Col. L. Rev. 1134, pp. 1156, 1157 (1960); James P. Jouras, On Modernizing Missouri's Criminal Punishment Procedure, 20 U. Kan. City L. Rev. 299, 305 (1952).
34 Chp. 558 (imprisonment) and Chp. 560 (fines), RSMo 1994). For example, for a class C felony, the jury is required to choose a punishment from a range of one to seven years in prison, or one day to one year in jail, or a fine (maximum of $5,000, amount to be determined by the Court) alone or in combination with a jail or a prison term. For class A and B felonies, the only choice is a prison term from a broad range of years.
35 State v. Hampton, 607 S.W.2d 225 (Mo. App. E.D. 1980).
36 State v. Jacobs, 939 S.W.2d 7 (Mo. App. W.D. 1997).
37 State v. Patterson, 624 S.W.2d 11 (Mo. 1981).
38 Brian Ostrom, et al., Sentencing Digest, "Truth in Sentencing," pp. 14-20, National Institute of Justice; National Center for State Courts, Williamsburg, Va., NCSC Pub. No. R-204 (1998).
39 Missouri Board of Probation and Parole, Rules and Regulations Governing the Granting of Paroles, Conditional Releases and Related Procedures (1992).
40 Section 558.019, RSMo 1994, § 556.061, RSMo 1994, defines "dangerous felony" as arson in the first degree, assault in the first degree, forcible rape, forcible sodomy, kidnapping, murder in the second degree and robbery in the first degree.
41 State v. Dunagan, 772 S.W.2d 861 (Mo. App. S.D. 1989).
42 Section 478.001, RSMo Supp. 1998. This gives legislative approval to the formation of drug courts as a treatment and rehabilitative alternative to incarceration.
43 Section 559.115, RSMo Supp. 1998.
44 Section 559.026, RSMo Supp. 1998.
45 Section 559.021.2(1), RSMo Supp. 1998.
46 Section 221.170, RSMo 1994.
47 Section 559.021.2(2), RSMo Supp. 1998.
48 Section 217.777, RSMo 1994.
49 State v. Dunagan, 772 S.W.2d 844 (Mo. App. S.D. 1989).
50 Roberts v. U.S., 445 U.S. 552 (1980).
51 Jones v. State, 658 S.W. 2d 504 (Mo. App. E.D. 1983).
52 Section 557.026, RSMo 1994.
53 Section 557.031, RSMo 1994.
54 Missouri Board of Probation and Parole, note 39.
55 Section 558.011 and § 560.011, RSMo 1994. A term in prison or a term in the county jail and\or a fine are alternatives for punishment in Class C and D felony offenses.
56 Section 558.011 and § 560.016, RSMo 1994.
57 Section 557.041, RSMo 1994.
58 Adams v. State, 951 S.W.2d 722 (Mo. App. W.D. 1997).
59 Section 558.019, RSMo 1994.
60 David B. Rottman, et al., State Court Organization, 1998 (forthcoming), U.S. Department of Justice, Bureau of Justice Statistics, Washinton, D.C. USGPO 1995.
61 Brian Ostrom, et al., Sentencing Commission Profiles, 11, National Institute of Justice; National Center for State Courts, Williamsburg, Va., NCSC Pub. No. R-203 (1997).
62 Id. at p. 36. Virginia, which retains jury sentencing, does not inform juries of the guidelines.
63 State v. Burnett, 637 S.W.2d 680 (Mo. banc 1982).
64 Section 476.055, RSMo Supp. 1998.
65 The President's Commission on Law Enforcement and Administration of Justice, note 20, at 23.
66 Giorno, note 20, at 906.
67 Mo. Sup. Ct. R. 24.02(d)(4) (1994).
68 Section 557.036, RSMo Supp. 1998.
69 Id.
70 Id.
71 Robert E. Reiter, Comments A Review of Sentencing in Missouri: The Need for Re-evaluation and Change, 11 St. Louis U.L.J. 69, at p. 81, (1966).
72 This conclusion was reached by the Advisory Commission on the Organization of the Judicial Department established by executive order signed by Gov. Carnahan in 1993. The commission issued its final report Dec. 15, 1995. The author presented much of the information in this article to the commission at a public hearing June 2, 1995.
1999, Hon. Randall R. Jackson
Circuit Judge Randall Jackson, 5th Judicial Circuit, has served on the bench for 22 years, beginning as a magistrate in 1977. He is a 1974 graduate of the University of Missouri-Columbia School of Law. He would like to thank Shradda Upadhyaya (law school student and intern), Tyronne Allen (Supreme Court of Missouri librarian), and the National Center for State Courts (Williamsburg, VA) for their research assistance.