Category Archives: Judiciary

Protecting Women and Children from Violent Crime – Update on Joint Committee on Criminal Code

The Joint Committee on the Criminal Code had its fourth meeting yesterday and finally got to take some public testimony. I was dismayed to hear people who represent domestic violence shelters and children separately detail several huge loopholes in Missouri’s laws against rape and child sexual abuse. For example:

  • Statutory rape in the first degree is not considered a dangerous felony.
  • Sex offenders are allowed to be placed in a 120 day treatment program, and if they are, that’s not allowed to be held against them later if they re-offend.
  • First-degree statutory rape sentences may be run concurrently, allowing perpetrators to get out early.
  • Incest is not an aggravating factor to increasing the severity of a charge.
  • SIS and SES is not allowed for first degree or forcible rape, but it is allowed for first-degree statutory rape and sodomy.
  • The definition of forcible rape does not include rape that occurs when the victim is incapacitated when the incapacity is caused by someone other than the perpetrator – for example, a drugged hospital patient who took pain medication after surgery.

I plan to file legislation next year to fix all of these problems. Statutory rape should be considered a dangerous felony. Sex offenders shouldn’t be given slap-on-the-wrist 120 day treatment sentences. SIS and SES shouldn’t be allowed for statutory rape or sodomy. And the definition of rape should be updated to include incapacity. 

New Ideas for Legislation to Protect Missouri Women, Children, and Seniors

This week’s hearing of the Joint Committee on the Criminal Code focused on sex crimes. Though the purpose of the committee and legislation before us is mere “clean-up” of our criminal statutes without creating new crimes or eliminating existing crimes, in the process we’re discovering some major substantive flaws with existing laws. After today’s hearing, I plan on filing legislation next year which fix the following:

  1. There’s no greater penalty for sexual misconduct involving a 15 year old than sexual misconduct involving a 35 year old. I believe 15 year juveniles are worthy of additional protection. 
  2. Section 566.086 makes it illegal for a teacher to have sex with a “public” school student. I will file legislation extending this protection to all students of elementary and secondary schools. 
  3. The definitions of “forcible compulsion” and “forcible sodomy” in 566.030 and 566.060 does not include when the victim is intoxicated beyond the point of being capable of consent. 
  4. Current laws prohibiting sex with elderly persons in nursing homes do not extend to other medical institutions and are limited to owners and employees of the nursing homes. 
It’s incredible to me that these flaws in existing laws have persisted for so long – and has me thinking that it might be a worthwhile exercise for joint committees to do comprehensive studies on other areas of law as well.

Updating Missouri’s Criminal Code for the 21st Century

The Joint Committee on the Missouri Criminal Code held its first hearing today to review a Herculean effort by the Missouri Bar, prosecutors, and the Public Defender to update Missouri’s criminal code. We’re starting with an over 800 page proposal. The goal is to craft legislation that neither creates new crimes nor de-criminalizes existing crimes, but instead re-organizes our criminal statues so they serve justice better.

I know that’s a rather vague statement, so let me give you an example.The proposed legislation would establish “Class E” felonies. The reason for this is that current law has a significant jump in punishment between Class C and Class B felonies. Adding another category would allow for more targeted sentencing.

The Committee will meet every Tuesday for the next six weeks. It will be dense work wading through 800 pages, but well worth it if we come up with a product that can improve our criminal justice system.

WSJ Editors – Rep. Barnes was Right on Justice Roberts’ Taxing Opinion

Okay, so the editors of the Wall Street Journal didn’t really lead with that headline. But they did put some meat on my bare-bones argument questioning whether Justice Roberts’ health care decision properly considered whether Congress can use the taxing power as a bootstrap to pull an otherwise unconstitutional law out of the legal gallows. The Journal’s editors opine:

The result is that Chief Justice Roberts has created the only tax in U.S. history that exceeds its own constitutional limits and is meant to execute powers that the Court otherwise ruled were invalid. His discovery erases the limiting principle—apportionment—that constrains the taxing power for everything besides income and excises.

In the process, Chief Justice Roberts has hollowed out dual federal-state sovereignty and eviscerated the very limit on the Commerce Clause that he posits elsewhere in his opinion and that has some conservatives singing his praises. From now on, Congress can simply regulate interstate commerce by imposing “taxes” whenever someone does or does not do something contrary to its desires.

Breaking Down the Health Care Ruling – A Little Something for Everyone

Interested in what it all means, I spent some time last night and today reviewing the Supreme Court opinion on the Affordable Care Act. On first reflection, there’s something in it for everyone. Liberals get their 100-year health care project upheld. Conservatives get an important decision on the Commerce and Necessary and Proper Clauses that could have beneficial long-term impact for restraining the heretofore unbridled expansion of the federal government. Here are the big legal points: 

THE COMMERCE CLAUSE ACTUALLY MEANS SOMETHING – Justice Roberts’ plurality (controlling) opinion clarifies that the Commerce Clause really does mean something. He writes:

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority…. Indeed, the Government’s logic would justify a mandatory purchase to solve almost any problem… 

People, for reasons of their own, often fail to do thing that would be good for them or good for society.  Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. That is not the country the Framers of our Constitution envisioned.  James Madison explained that the Commerce Clause was “an addition which few oppose and from which no apprehensions are entertained.” The Federalist No. 45, at 293. While Congress’s authority under the Commerce Clause has of course expanded with the growth of the national economy, our cases have “always recognized that the power to regulate commerce, though broad indeed, has limits.”  Maryland v. Wirtz, 392 U. S. 183, 196 (1968).  The Government’s theory would erode those limits, permitting Congress to reach beyond the natural extent of its authority, “everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.”  The Federalist No. 48, at 309 (J. Madison).  Congress already enjoys vast power to regulate much of what we do.  Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government. 

Everyone will likely participate in the markets for food, clothing, transportation, shelter, or energy; that does not authorize Congress to direct them to purchase particular products in those or other markets today. The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions.  Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.

NECESSARY AND PROPER MEANS NECESSARY AND PROPER – Justice Roberts further clarified that the federal government can’t use the Necessary and Proper Clause to justify an otherwise unconstitutional statute:

Applying these principles, the individual mandate cannot be sustained under the Necessary and Proper Clause as an essential component of the insurance reforms. Each of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. For example, we have upheld provisions permitting continued confinement of those already in federal custody when they could not be safely released.  The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power….Even if the individual mandate is “necessary” to the Act’s insurance reforms, such an expansion of federal power is not a “proper” means for making those reforms effective.

THE TAX ISSUE: CONGRESS AND THE PRESIDENT HAVE LICENSE TO OBFUSCATE – Justice Roberts’ stretched to find the mandate is really a tax. As noted in Roberts’ opinion, §5000A(a) of the act states that individuals “shall” maintain health insurance. Roberts’ notes that the question of whether the mandate is really a tax is not “whether that is the most natural interpretation of the statute, but only whether it is a ‘fairly possible’ one.”  Scalia’s dissent rips into this reasoning and the lack of briefing and prior discussion on the issue:

[T]o say that the Individual Mandate merely imposes a tax is not to interpret the statute but to re-write it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off…We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty…. 

The Government’s opening brief did not even address the question – perhaps because, until today, no federal court has accepted the implausible argument that §5000A is an exercise of the tax power. And once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue. At oral argument, the most prolonged statement about the issue was just over 50 words. One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression.

I see two potential issues here not fully addressed in any of the opinions.

First: Does the sales pitch matter? Congress and the President clearly argued the mandate wasn’t a tax. Congress rejected an outright tax in a prior version of the bill. Three years later the bill is upheld on a basis for which it was never sold. On the one hand, Justice Roberts is no doubt correct that a tax should be determined solely by its features and not by the obfuscating arguments of a law’s supporters. Scalia’s dissent argues the tax matter based on its underlying features to, but also raises the question effectively argues that Congress and the President cannot defend legally defend a statute as something they earlier swore it wasn’t. Roberts’ clear answer to that the question, however, was no, the sales pitch doesn’t matter.

Second: Can Congress tax inactivity? I have no idea on the answer to that question and would suspect the answer is undoubtedly yes given the lack of briefing suggesting otherwise. However, one point is in order.

The Constitution has two parts. The first part deals with government structure and protects individual liberties through a system of check and balances on and between the branches of government (horizontal checks) and the states (federalism). The second part expressly protects the liberties of American citizens (i.e. the Bill of Rights and later amendments). There is clear case law that Congress cannot condition the exercise of a constitutional right on the payment of a tax. For example, government can’t place a special tax on newspaper publishers, nor can they institute a poll tax before allowing someone to vote. Thus, Congress cannot use the tax and spend power to violate a liberty protected by the second part of our Constitution. I am not aware of any case law on whether the federal government can use Tax and Spend authority to thwart a structural check on governmental power. Perhaps if properly briefed, this would have been a case of first impression on that issue. Somehow I doubt it and there’s probably a case out there on point – nevertheless, it’s a question worth asking. If I were getting paid by the hour to do this, I could no doubt come up with a 30 page memo on the topic and give you a definitive answer. In the absence of a client willing to pay for that, I leave it for others.       

THE FEDERAL GOVERNMENT CAN’T ACT LIKE THE GODFATHER – Justice Roberts’ opinion regarding state Medicaid spending puts real teeth into the Spending Clause – and, by proxy, the Tenth Amendment. Roberts writes, “In this case, the financial “inducement” Congress has chosen is much more than “relatively mild encouragement”—it is a gun to the head.” This case clearly establishes that Congress may not attempt make states an ‘offer they can’t refuse.’

JUSTICE GINSBURG’S DANGEROUS READING OF THE COMMERCE CLAUSE – Justice Ginsburg’s concurrence would read the limitations in the Commerce Clause out of the Constitution.  Rather than stating a definitive rule of law, Ginsburg would have Commerce Clause challenges decided on an ad hoc basis, based on “practical considerations.” And she would add a rational basis test – if Congress had a rational basis to act and there was a reasonable connection between regulation and the asserted end, the Court should uphold a statute under the Commerce Clause. As the Scalia dissent notes:

It is true enough that Congress needs only a ‘rational basis’ for concluding that the regulated activity substantially affects interstate commerce… But it must be activity affecting commerce that is regulated, and not merely the failure to engage in commerce…Our test’s premise of regulated activity is not invented out of whole cloth, but rests upon the Constitution’s requirement that it be commerce which is regulated. If all inactivity affecting commerce is commerce, commerce is everything. Ultimately, the dissent is driven to saying that there is really no difference between action and inaction…a proposition that has never recommended itself, neither to the law nor common sense.

Ginsburg’s dissent is dangerous. In our constitutional system, it is the legislature’s role to take ‘practical considerations’ into account when crafting new laws. The judiciary’s role is to rule on the basis of the Constitution – not to make itself a super-legislature determining which ‘practical considerations’ are worth upholding a statute and which are not. Scalia points out:

The dissent’s exposition of the wonderful things the Federal Government has achieved through exercise of its assigned powers, such as “the provision of old-age and survivors’ benefits” in the Social Security Act, ante, at 2, is quite beside the point. The issue here is whether the federal government can impose the Individual Mandate through the Commerce Clause. And the relevant history is not that Congress has achieved wide and wonderful results through the proper exercise of its assigned powers in the past, but that it has never before used the Commerce Clause to compel entry into commerce.3

In its effort to show the contrary, JUSTICE GINSBURG’S dissent comes treats the Constitution as though it is an enumeration of those problems that the Federal Government can address—among which, it finds, is “the Nation’s course in the economic and social welfare realm,”  ibid., and more specifically “the problem of the uninsured,”  ante, at 7. The Constitution is not that. It enumerates not federally soluble problems, but federally available powers.  The Federal Government can address whatever problems it wants but can bring to their solution only those powers that the Constitution confers, among which is the power to regulate commerce. None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a-national-problem power.

JUSTICE GINSBURG’S CONCURRENCE CONFUSES THE PURPOSE OF THE CONSTITUTION – Justice Ginsburg cites “the democratic process” as a formidable check on congressional power worth noting. Ginsburg forgets that the Constitution was created as a check even on the democratic process. Our Founders believed certain things were so important that they had to be given extra protection and made nearly impossible to change through the normal democratic process. The Constitution was created entirely to protect future citizens from overactive excitable politicians and presidents. We have a government of limited powers – constrained by a written Constitution – not one subject to the sole check of the ‘democratic process.’ To argue otherwise is to assert that nothing Congress does is unconstitutional. 

Helping Vets Get Treatment for PTSD – Problems w/ VA Stopped Veteran’s Courts Legislation

On this Memorial Day do not forget the soldiers living with the long-term impact of service – including those struggling with post-traumatic stress disorder from service in Iraq and Afghanistan. The New York Times has an op-ed today from Mike Scotti, a Marine disappointed in the VA’s performance regarding post-traumatic stress treatment for veterans of Iraq and Afghanistan.

Scotti reveals the VA’s PTSD appointment schedulers were cooking the books to improve their statistics on wait times for veterans seeking mental health services. 

I wish I could say this were surprising. It’s not because the VA’s poor performance effectively killed my legislation to create veteran’s courts in Missouri to help get our veterans the treatment they deserve.

House Bill 1110 flew through the House this year. The bill would very simply allow local courts to set up treatment programs for veterans where the prosecutor, judge, and veteran agree that treatment for substance abuse or post-traumatic stress disorder stemming from service would be better for society than our traditional lock-em away mentality. We know our veterans our capable of being productive citizens. Even more, we know they’re willing to sacrifice for others. And we also know many veterans are coming home from our current conflicts with wounds that are invisible to most people. As I’ve written on this blog before, programs like this are showing success in several different places around the country. I thought the bill would become law. So did others. 

So what happened? Well, the VA’s inadequate service led to a fiscal note being placed on the bill between between when it passed 149 to 1 in the House and was referred to a Senate committee. If the VA cannot screen veterans or get them treatment in a time frame sufficient for our criminal justice system, the Missouri Department of Mental Health would likely be responsible for much of the diagnoses and treatments – and that costs Missouri government money – $5,000 per veteran to be precise. If just 20 veterans received treatment, the legislation would cost the state of Missouri $100,000. If 200 veterans receive treatment, it’d be $1 million. We don’t know precisely how many veterans would be impacted. As a result, the bill did not move again. Worse, presumably because of the fiscal note resulting from the VA’s incompetence, we weren’t even given a hearing.

It’s important to note that we’re not talking about some ‘unearned’ federal handout here. Instead, we’re talking about veterans who sacrificed for our country not getting health care services from the very federal agency set up to serve those who served in our military. When a Missouri veteran has post-traumatic stress disorder as a result of their service, it’s fair to say they earned treatment for that PTSD on the battlefields of Iraq and Afghanistan.

As Scotti points out in the op-ed, many veterans suffer silently from PTSD and don’t think of going to the VA for help. As Scotti relates:

Since coming home, I’ve had my mind hijacked by visions of the corpses of children, their eyes blackened, at the side of the road. I recall carrying the coffins of fallen brothers. I remember losing friends who probably knew exactly what was happening to them, as they bled out on the side of a dusty road in Iraq. And I’ve felt the shame of having suicidal feelings. Like many others, I chose to hide them. Yet, even in the darkest days of my own post-traumatic stress, when I was considering choosing between making my suicide look like an accident or taking a swan dive off some beautiful bridge, I never considered going to the V.A. for help.

I cannot imagine going through life haunted by such images – and with no place to turn. Scotti argues that the VA needs to change its ways:

What this generation of veterans needs from the V.A. is a recognition that when the color of life has faded to gray, you need to talk to someone about it today, not weeks or months from now. We need America to acknowledge what war does to the young men and women who fight it and to share the message that dragged me out of the darkness: It’s O.K. if you’re not O.K.

I’m going to re-file my legislation next year. This is too important an issue not to keep fighting. Missouri veterans struggling with PTSD deserve treatment and a second chance at success. As Scotti says, its OK if our veterans aren’t OK when they come home. Rather than ignoring the problem, we need to do what we can to help them. We know from courts elsewhere that they’re good for both veterans and the general public – but we’ll have to fight that fiscal note, and perhaps we can have a discussion on the VA’s responsibilities in the committee hearing. 

On Way to Judges Conference – More Successes from Session

While prepping for a brief panel discussion today at the Missouri Municipal and Associate Circuit Judges conference, I remembered a few legislative successes that I didn’t include in yesterday’s list:

  • Better sentencing and parole guidelines providing for quick and certain punishment of people who violate the terms of their probation and parole. HB1525 will likely lead to lower rates of recidivism by allowing for nearly immediate jail when offenders violate terms of their probation and parole. It was passed unanimously in the House (151-0) and by a vote of 24-3 in the Senate.
  • Improved ignition interlock requirements in SB480 will require the use of ignition interlocks for certain DWI offenders – and, in some limited cases, allow for driving privileges if the person puts an interlock in their car. This provision was supported by Mothers Against Drunk Driving. Similar provisions adopted in other states have led to a 52 percent decline in drunk driving deaths. 

Dred Scott Inducted Into Hall of Famous Missourians

Lynne Jackson, the great-great granddaughter of Dred Scott, Annette Driver, and Jay Barnes at Induction of Dred Scott into Hall of Famous Missourians

The Missouri House inducted Dred Scott into the Hall of Famous Missourians yesterday. I had the privilege of meeting his great-great granddaughter and took this pic with her and Jefferson City’s Annette Driver. We’ve come a long way, but the struggle for civil rights continues. As a state representative, I’ve defended Missouri’s zero-tolerance policy towards discrimination in employment and will continue to do so for so long as I’m lucky to serve the people of Cole County. 

House Truly Agrees Justice Reinvestment Act

This morning, the House Truly Agreed and Finally Passed the Justice Reinvestment Act, sponsored by Rep. Gary Fuhr. This bi-partisan bill supported by the Pew Center on the States would allow for quicker and more certain resolution of probation or parole revocations, giving judges proven tools to reduce recidivism. As a show of how important the bill is, Speaker Steve Tilley took to the floor to say it was one of the five most important bills passed in his tenure – if not the past twenty years. 

Gov. Nixon Signals Position on Two Work Comp Issues; Punts Again on Second Injury Fund

The AP reports today on a letter Gov. Nixon sent to Senate Majority Leader Tom Dempsey detailing his position on two important worker’s compensation issues. I am extremely disappointed that his letter failed to address the Second Injury Fund – the biggest problem in Missouri’s current worker’s compensation system. 

At risk of sounding like a broken record, any responsible worker’s compensation legislation MUST include a Second Injury Fund fix.

As one colleague described it to me recently, “The Second Injury Fund has made the state of Missouri just like a deadbeat dad. There are existing legally enforceable judgments out there that the state is refusing to pay just like those fathers who skip out on child support.” 

Not only is the situation morally appalling, I’m also concerned it could eventually put our state’s credit rating at risk. How long can we go before the ratings agencies make a big deal out of the fact that the state is ignoring millions of dollars in judgments against it every year?