Link to Mo. Sup. Ct. Opinion
The Supreme Court of Missouri held that section 566.151, a newly enacted emergency measure that criminalizes enticement of a child, is not unconstitutional. Specifically, the court held that the prescribed punishment was not cruel and unusual, and the statute itself was not unconstitutionally vague or overbroad. Finally, the court held that the statute was enacted pursuant to a valid and supported legislative determination that an emergency existed so as to justify the waiver of the standard ninety-day waiting period before a newly enacted law takes effect.
Joseph Pribble (“Defendant”) was the subject of an undercover investigation by the Maryland Heights Police Department in August 2006.[2] An officer posed as a fourteen year-old female, and the Defendant, having initiated contact, exchanged explicit photographs with the officer and suggested that they perform specific sexual acts together.[3] In a subsequent conversation, the Defendant made arrangements to meet with the officer’s persona.[4] At that rendezvous, the Defendant was taken into custody by police and gave a confession that he was meeting the fourteen year-old female “to teach someone something new.”[5]
Defendant was charged with violating section 566.151, as amended in 2006, for the attempted enticement of a child.[6] Section 566.151 says that a person twenty-one years of age or older commits the crime of enticement of a child if he lures, solicits, or entices, through words or actions, any person under the age of fifteen for the purpose of engaging in sexual conduct.[7] The same statute also explicitly denies any affirmative defense based on the fact that the person solicited is an officer masquerading as a minor.[8] The offense carries a minimum five-year sentence and a maximum sentence of thirty years.[9] Further, the statute dictates that no person convicted under the statute is eligible for parole, probation, release, or suspended imposition or execution of the sentence.[10]
Amending the child enticement statute in 2006, the General Assembly of Missouri invoked an emergency provision of the Missouri Constitution, which allowed the new, increased penalties under section 566.151 to go into effect immediately when signed by the governor on June 5, 2006.[11] Had the amendment not been enacted through an emergency decree, it would not have taken effect until August 28, 2006, after the date of the Defendant’s offense on August 17, 2006.[12]
Defendant was convicted of attempted enticement of a child and sentenced to six years imprisonment.[13]
On appeal, the Defendant argued that the statute under which he was convicted was unconstitutional because it constitutes cruel and unusual punishment, is vague, encroaches on free speech, and took effect pursuant to an invalid emergency clause.[14]
The court held that the punishment provided under the statute and the punishment actually imposed were not disproportionate to the seriousness of the crime so as to constitute cruel and unusual punishment;[15] that the statute is not unconstitutionally vague;[16] and that the statute is not overbroad and thus does not infringe upon constitutionally protected free speech.[17]
Finally, the court held that the amendment of section 566.151 in 2006 as enacted through an emergency provision was a valid exercise within the discretion of the legislature and supported by sufficient facts to justify the emergency measures.[18]
II. Legal Background
The Supreme Court of Missouri reviews de novo whether a statute is unconstitutional.[19] A statute will not be found unconstitutional unless it clearly contravenes a specific provision of the constitution.[20]
A. Cruel and Unusual Punishment
Defendant argued that section 566.151’s minimum sentence of five years without the possibility of parole violated the U.S. and Missouri Constitutions’ prohibitions against cruel and unusual punishment because the punishment was grossly disproportionate to the crime.[21] The court responded with the principle that substantial deference is due to the legislature’s determination of the proper punishment for crimes.[22] The court held that, in light of the serious nature of the crime and potential social harm that enticement of a child causes, the minimum sentence of five years in prison without the possibility of parole cannot be said to be disproportionate to the crime; the same holds true for Defendant’s actual sentence of six years.[23]
B. Void for Vagueness
Defendant also claimed that section 566.151 was void for vagueness. The statute reads, “[e]nticement of a child or an attempt to commit enticement of a child is a felony for which the authorized term of imprisonment shall be not less than five years and not more than thirty years. No person convicted under this section shall be eligible for parole, probation, conditional release, or suspended imposition or execution of sentence for a period of five calendar years.”[24] Defendant claimed the use of the word “convicted” would confuse a person, in that someone who has received a suspended imposition of a sentence would not know whether he would be forbidden parole or other forms of release for five years.[25]
The court cited that the void for vagueness doctrine is intended to ensure that the accused receives fair and adequate notice of proscribed conduct, which in turn protects against arbitrary law enforcement.[26] The test in enforcing the doctrine is “whether the language conveys to a person of ordinary intelligence a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.”[27] The court then looked to another provision in the statute, which clearly states that a suspended imposition of sentence is not available for this crime.[28] Accordingly, Defendant’s argument had no merit since the only meaning of the statue is that anyone found guilty of the offense is to receive a minimum sentence of five years without the possibility of parole.[29]
C. Infringement on Protected Speech
Defendant also argued that section 566.151 violates the First Amendment of the U.S. Constitution and article I, section 8, of the Missouri Constitution because it impermissibly regulates speech concerning sexual conduct.[30] The statute states that “[a] person at least twenty-one years of age or older commits the crime of enticement of a child if that person persuades, solicits, coaxes, entices, or lures whether by words, actions or through communication via the Internet or any electronic communication, any person who is less than fifteen years of age for the purpose of engaging in sexual conduct.”[31]
The court began by stating that freedom of speech is not absolute, and offers to engage in illegal transactions are precluded from First Amendment protection.[32] The court stated that the statute does not criminalize mere fantasy or speech related to mere fantasy but only forbids acts of persuasion, solidification and enticement “for the purpose of engaging in sexual conduct.”[33] Therefore, a person cannot run afoul of the statute without actively seeking to engage in an unlawful activity. Accordingly, the statute is not overbroad because it does not make protected conduct unlawful.[34]
D. Emergency Enactment
Defendant’s final argument was that the Missouri General Assembly did not enact the amendment properly as an emergency measure and, therefore, the new law violates the prohibition against ex post facto laws regarding the defendant’s alleged actions.[35] The default effective date of the amended statute was August 28, 2006, which is the standard ninety-days after the adjournment of the legislative session when newly passed or amended statutes go into effect.[36] This would have been after the date of Defendant’s offense, which was on August 17, 2006.[37] However, the General Assembly enacted the revisions as an emergency measure and caused the statute to go into effect immediately after the governor signed it in June 2006.[38]
The court stated that the legislature’s determination that an emergency measure is appropriate is entitled to great weight, and the test is whether there actually existed a crisis or emergency that required quick legislative action.[39] The Missouri Constitution does not require a detailed explanation of why the measure is considered an emergency measure, but only requires that an emergency measure is expressed.[40] In this case, the emergency clause expresses an immediate need for protection from sexual offenders to protect the public health, welfare, peace and safety.[41] The court then speculated that there are many reasons to support the legislature’s determination that this was a necessary emergency measure, such as the fear that those found guilty of the crime of enticement were receiving light sentences or a desire for greater deterrence.[42] As such, the legislature’s determination is entitled to great weight, and the court found no reason to question it in this case.[43]
III. Commentary
The importance of this case resides in the consistent deference shown to the legislature by the Supreme Court of Missouri. Specifically, the court’s hesitance to question the legitimacy of the enactment of emergency measures by the legislature poses a troubling concern. Presumably the ninety-day default waiting period for the enactment of newly passed laws, among other purposes, gives the citizens of the State a period of time in which to modify or adjust behavior in accord with newly enacted laws. Although Mr. Pribble’s case is not an instance when most citizens would find this uncritical deference disconcerting, the Supreme Court of Missouri’s willingness to find an emergency measure valid merely because the legislature states that it is addressing an emergency, without any specific or supported findings, should give us pause and could have significance in the future.
-Bradley S. Dixon
[1] No. SC 89473, 2009 WL 1456343 (Mo. May 26, 2009) (en banc).
[2] Id. at *1.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Mo. Rev. Stat. § 566.151 (2006).
[8] Id.
[9] Id.
[10] Id.
[11] Pribble, 2009 WL 1456343, at *2; see Mo Const. art III, § 29 (“No law passed by the general assembly, except an appropriation act, shall take effect until ninety days after the adjournment of the session in either odd-numbered or even-numbered years at which it was enacted. However, in case of an emergency which must be expressed in the preamble or in the body of the act, the general assembly by a two-thirds vote of the members elected to each house, taken by yeas and nays may otherwise direct; and further except that, if the general assembly recesses for thirty days or more it may prescribe by joint resolution that laws previously passed and not effective shall take effect ninety days from the beginning of the recess.”).
[12] Pribble, 2009 WL 1456343, at *5.
[13] Id. at *1.
[14] Id.
[15] Id. at *2.
[16] Id. at *4.
[17] Id. at *5.
[18] Id. at *6.
[19] Id. at *2 (citing City of Arnold v. Tourkakis, 249 S.W.3d 202, 204 (Mo. banc 2008)).
[20] Id.
[21] Id. See U.S. Const. amend. VIII; Mo. Const. art. I, sec. 21.
[22] Id. See also Harmelin v. Michigan, 501 U.S. 957, 998 (1991) (Kennedy, J., concurring).
[23] Id.
[24] Mo. Rev. Stat. § 566.151.3 (2006).
[25] 2009 WL 1456343, at *3.
[26] Id. (citing State ex. rel. Nixon v. Peterson, 253 S.W.3d 77, 81 (Mo. banc 2008).
[27] Id.
[28] Id. (“No person [. . .] shall be eligible for [. . .] suspended imposition or execution of sentence for a period of five calendar years”) Mo. Rev. Stat. § 566.151.3 (2006).
[29] Id.
[30] Id. at *4.
[31] Mo. Rev. Stat. § 566.151.1 (2006).
[32] Id. (citing State v. Smith, 422 S.W.2d 50, 55 (Mo. banc 1967); United States v. Williams, 128 S.Ct. 1830, 1841 (2008).
[33] Id.
[34] Id.
[35] Id. See US. Const. art. I, sec. 10; Mo Const. art. I, sec. 13.
[36] Id.
[37] Id.
[38] Id. at *2.
[39] Id. at *5 (citing State ex. rel. Tyler v. Davis, 443 S.W.2d 625, 631 (Mo. banc 1969).
[40] Id. (See Mo Const. art. III, sec. 29; Bd. of Regents for NE Mo. State Teachers Coll. v. Palmer, 204 S.W.2d 291, 294-95 (Mo. 1947)).
[41] Id.
[42] Id.
[43] Id.
