Official Blog of the Education Exchange Corps

Thursday, December 22, 2016

New Missouri Criminal Code Will NOT Increase Assault Prosecutions of Kids

There have been a lot of stories and posts on social media about how Missouri will now be upping imprisonment penalties on kids involved in school fights come 2017.

These stories are not correct. Imprisonment penalties will remain the same, although potential monetary fines will increase. And the 2017 law will not bring a rash of new prosecutions against kids.

Today, people involved in fights in Missouri can be prosecuted under the law. These laws are listed in the Revised Statutes of Missouri (or "RSMo" for short).

In Missouri, a crime called "assault" involves the use of force (or sometimes the threat of force) between people.

Today, one of these assault crimes is called "Assault while on school property." The statute is RSMo 565.075. If someone "knowingly causes physical injury to another person" at school, a school activity, or in a vehicle traveling in the service of a school, that person can be prosecuted for a Class D felony. Today.

Missouri revised its criminal code. So, come January 1, 2017, the law will change. This assault while on school property crime will no longer exist. Instead, it will be absorbed into "Assault in the third degree." This statute is RSMo 565.054. If someone "knowingly causes physical injury to another person" (there's that "knowingly" language again), they can be prosecuted for a Class E felony.

This means that, today, there is no crime for "knowingly causing physical injury to another person" outside of school. Today, a prosecutor would either have to prove that the attacker outside of school "knowingly caused serious physical injury" (and impose a higher penalty) or prove that the attacker "recklessly caused physical injury" (and impose a lesser penalty). Today, there is no middle ground for assaults outside of school.

That middle ground does exist today, but, for some reason, only for school-related fights. Starting in 2017, this same rule that applies to school assaults will apply outside of schools too, giving prosecutors more flexibility to make an appropriate charge for the circumstances.

Here's a chart showing the changes to the assault laws. I left out assault charges related to weapons and a few words to make it a little more readable. Clicking on the chart makes it bigger!

You can read through all of these statutes here, starting at RSMo 565.050. 

Bottom line: The new law expands prosecutors' ability to charge assault outside of school. It does not increase prison penalties for children.

I wrote a follow-up post to this about the juvenile system, which is where almost all kids would end up for an assault charge. These assault laws we're talking about are for the adult system. A child would need to be prosecuted as an adult - which would require a judge's approval - to even be at risk of a felony conviction.

But let's go worst-case-scenario here anyway.
Today, a kid fighting at school technically can be prosecuted for a Class D felony. Starting January 1, that kid can be prosecuted for a Class E felony.

That means the kid gets a better deal in 2017, right? No.

Today, Class Ds are the lowest form of felony and Class Es do not exist. On January 1, Class Es will be the lowest. Both are punishable by up to 4 years in prison (today's law; 2017 law).

However, today, the potential fine for a kid convicted of a Class D felony is $5,000. In 2017, the potential fine for Class C, D, and the new E felonies will be up to $10,000.

So a kid who assaults someone in 2017 cannot be imprisoned for a longer time, but the kid could be fined more in 2017.

There's one other portion of the new language that could be confusing on the surface. The new Assault in the third degree crime includes a provision requiring that if the victim is a "special victim," the punishment will be higher.
What's a "special victim"? That's defined in another law (just to make it easier for everyone to figure out). Under RSMo 565.002.14, "special victim" is defined as a:
  • Law enforcement officer
  • Emergency personnel
  • Probation and parole officer
  • Elderly person
  • Person with a disability
  • Vulnerable person
  • Corrections officer
  • Highway worker
  • Utility worker
  • Cable worker
  • Mass transit employee
None of these folks look like kids, except "person with disability" for some kids, and maybe "vulnerable person". What's a vulnerable person? 
Another law! RSMo 556.061.50 defines a vulnerable person as: "any person in the custody, care, or control of the department of mental health" receiving services. This same definition is used in the mental health statutes, and it's the same definition for the soon-to-be-deleted laws regarding assault on vulnerable people (see this one for an example).
Kids are not automatically vulnerable people under this definition. So just because a kid beat up another kid does not mean the punishment will be higher. If a kid assaults another kid who has a disability, then the assault charge could be increased.

So, in general, the potential prison punishment for a kid in 2017 will be the same in 2016 when it comes to an assault charge for "knowingly" causing physical injury. (What is "physical injury"? Read this post about its redefinition.)

Does this mean prosecutors no longer have the flexibility to charge a kid with a misdemeanor?
No. Those stories are false. In 2017, a prosecutor can file an Assault in the fourth degree charge. Today, that same charge is called "Assault in the third degree." It's true that Assault in the third degree in 2017 will be a felony. That's why in 2017 there will be a new level of assault that does not exist today called Assault in the fourth degree.

See the chart above. Today's Assault 3rd is almost the exact same thing as 2017's Assault 4th!

The only major difference in how the assault law is defined in 2017 versus 2016 is that prosecutors will have more flexibility to charge people outside of schools with appropriate criminal violations. The new law does not put a special focus on kids. It puts a new focus on those outside of school.

Prosecutors can technically go after kids, sure. I had the fortune of having a few other fine officers of the court - including prosecutors - send me notes as I was working on this, and all of them told me it would be silly and very hard for prosecutors to go after kids for fighting at school, especially on a felony charge, without some showing that the kid viciously attacked someone, or at least intended to. 

That's what the law seems to say too. 

Prosecutors have to be given some flexibility in the law to decide what charges to file. Every situation is different. So yes, the new law, just like the old one, gives prosecutors the power to seek to incarcerate a kid for four years for an assault under some circumstances. In 2017, the prosecutor can also seek a fine of up to $10,000, which is more than the $5,000 the prosecutor can currently try to get.

But that does not mean that every kid in a fight will be sent away or fined exorbitantly. Prosecutors, the court, and juries play huge roles in determining what the punishment should be, and defense attorneys get to put on their cases as well. And remember: Almost all of these cases are dealt with in juvenile court, not in adult criminal court. Kids are not saddled with felonies in juvenile court.

Many of us who work with kids know that they face a lot of challenges, including in the justice system. But we need to identify the real problems, not become distracted by fake ones created by distressingly negligent members of the media.

The media reports about the change in Missouri's laws are not only overblown. They are deceptively incendiary. I could not find one article that included any kind of investigative comparison of the new laws with the old. This failure is inexcusable, and not only because it does a great disservice to the public who rely on these reporters to do their jobs.

These stories have taken advantage of a group of folks who are subject to grave inadequacies in our judicial system. There is no question that far too many kids are caught up in a system that too often does not treat them fairly. But, instead of talking about the real issues underlying the school-to-prison pipeline, these media outlets are inciting panic, which will inevitably dissuade folks from joining an important fight when they realize this story of terrifying change actually has no merit.

The more the boy cried wolf, the less people listened.

All of these reports seem to trace back to the Hazelwood School District's pronouncement that the law is changing in 2017 to allow fighting kids to be charged with felonies. Ferguson-Florissant put out a scary video saying 2017 could bring felony charges. Well, those felony charges are available today too.

I don't know exactly when Hazelwood put up this notice (I know it was at least a couple of days ago, before this whole thing blew up online).  This notice, just like all the reports that followed it, make it seem that 2017 is going to be drastically different from 2016, that we must act immediately to save our kids.

These articles are right about one thing: We need a sense of urgency around our kids. But they are wrong about almost everything else.

I'm not sure if these school districts put out these incorrect messages because of a mistake, or if school officials were trying to use the uncertainty that comes with change to scare kids into better behavior. Whatever it is, these school districts need to correct the mistake.

Kids are not more susceptible to ADULT prosecution for assault as a result of the change in the assault laws. If you are a parent or kid facing that prospect, call an attorney.  

We cannot afford to destroy the work a lot of folks are doing by discrediting their efforts through suspect reporting and school notices.

There is a school-to-prison pipeline.  It must be broken. We must tell the real story about how it works so we can make that happen.

(Click here for our blog post on the juvenile justice system.)
(Click here for our blog post on the redefinition of "physical injury.")
(Click here for our explanatory video.)
(Click here for our blog post on school district reporting requirements.)
(Click here for our blog post on the harassment law.)

Elad Gross is a former Assistant Attorney General of Missouri. He graduated from Washington University School of Law. 

This blog post is not meant to provide legal advice. If you are in need of legal assistance, please contact an attorney.

Elad Gross, J.D.
President and CEO
Education Exchange Corps


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