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The Constitutional & Fiscal Case for Defelonizing Drug Possession in Missouri (House Bill 704)

We've previously covered a proposal from Missouri State Representative Michael Davis (R-Kansas City) to defelonize simple drug possession in Missouri (House Bill 704).

Yesterday, Pulitzer Prize-winning journalist Tony Messenger covered a ruling in Cole County Circuit Court regarding the long waiting lists for a public defender, saying:

...Last week, a judge in one of those cases issued an important ruling, saying that the waiting lists for public defenders in many jurisdictions in Missouri are unconstitutional. The lawsuit was filed by the American Civil Liberties Union and the MacArthur Justice Center. “For the reasons previously stated, the State violates the Sixth Amendment … by charging an indigent defendant with a crime in which the State seeks the defendant’s incarceration, and then delaying for weeks, months, and even more than a year before furnishing the defendant with an attorney,” wrote Cole County Circuit Court Judge William E. Hickle.

The waiting lists were developed as a patch on a problem that has been brewing for decades. Missouri public defenders have enormous caseloads, some of the worst in the country, because the Missouri Legislature won’t provide the money to hire more lawyers.

The remedy for the lawsuit is proper funding so that every indigent defendant in the state who faces the possibility of incarceration has quick access to legal representation. Missouri has long had one of the lowest-funded public defender systems in the country.

Because the Missouri Legislature is considering a budget that would allow Mary Fox, the head of the public defender system, to hire 12 new lawyers in the areas of the state that have the longest waiting lists, Hickle put his ruling on hold until the end of the legislative session.

While we (of course) believe Missouri's public defender system should be fully funded, it's also true that Missouri governments are under significant financial stress, and finding funding for public defenders should be considered from a systemic perspective that includes re-examining what we are paying for in the first place.

Currently in the state of Missouri, any drug possession offense except for marijuana under 35 grams is an automatic felony. According to the Missouri State Highway Patrol, in 2014 (the last year data was available), there were 31,062 drug arrests in Missouri, some 18,000 of which were for marijuana. Assuming these numbers are relatively current, that means there are some 13,000 arrests and prosecutions a year in Missouri for felony drug possession -- a significant number of which represent indigent defendants, for which the state is obligated to provide representation. Currently, Missouri's Department of Corrections "has approximately 11,000 employees, overseeing and supervising 24,000 convicted adult felons, 18,700 parolees, and 37,600 probationers across the state", according to a December 2020 audit performed by Missouri State Auditor Nicole Galloway.

The same audit also found a significant current liability in terms of costs the state of Missouri owes county governments (emphasis ours):

Appropriations and reimbursement rates for the reimbursement of criminal costs, prisoner transportation, and extradition costs for state prisoners to Missouri counties have generally kept up with inflation over the past decade, but have not kept up with reimbursement requests submitted from the counties. As a result, the state has accumulated a liability of approximately $31 million to counties as of June 30, 2020, which represents approximately 80 percent of the annual amount claimed for reimbursement. In addition, incarceration costs incurred by counties for state prisoners have continued to increase, resulting in county governments increasingly subsidizing state incarceration costs.

According to the Urban Institute, drug defelonization in Missouri “would lead to a -30.9 percent decrease (9,755 fewer people) in the prison population in 2025” and a “cumulative savings of $218.1 million in state corrections spending.” This estimate does not cover savings from reducing the burden of having state funded public defenders represent defendants in felony cases. You can also read our legislative handout on HB 704 here.

We believe House Bill 704's proposal to defelonize simple drug possession should be on the table as Missouri lawmakers consider the significant issues of Constitutional rights and fiscal responsibility this session and next.

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