If passed, provision violators will face prison sentences or hefty fines.
JEFFERSON CITY — Missourians will be deciding a virtually unprecedented issue next week when they vote on a proposed constitutional amendment ensuring that all federally allowed stem cell research can occur in Missouri.
If approved, the proposal apparently would mark only the second case where precise prison sentences and fines for crimes are included in Missouri’s 132-page Constitution. Such details typically are left for laws.
The distinction between constitutional provisions and laws may sound like an arcane, academic discussion. But as a rule, constitutions generally lay out a framework, while legislators fill in the details with specific laws.
Nowhere in the Missouri Constitution, for example, does it spell out that people convicted of first-degree murder can be sentenced to death. Nor does the constitution create the crimes of making and selling illegal drugs, much less their specific prison sentences.
Yet proposed Constitutional Amendment 2 creates several specific crimes and punishments.
It imposes a prison sentence of up to 15 years and/or a fine of up to $200,000 for anyone who attempts to implant a scientifically cloned embryo into a woman’s uterus for the purpose of creating a cloned baby.
It also imposes prison sentences of up to 10 years and/or a fine of up to $100,000 for anyone who removes stem cells from a human embryo more than 14 days after its cell division begins, or who uses a sperm and egg to create a human embryo solely for the purpose of stem cell research.
Another provision allows the attorney general to seek a civil penalty of up to $50,000 for any of those crimes plus several other newly created ones, such as the failure of embryonic stem cell researchers to gain approval of their projects from an oversight committee.
Donn Rubin, executive director of the Missouri Coalition for Lifesaving Cures, said the group took the somewhat unusual step of placing specific penalties in its constitutional amendment to try to assure the public there would be ethical boundaries for conducting stem cell research.
“We thought it was important to have real teeth for those boundaries, so that it was clear that anyone who violated these boundaries would face real punishment,” Rubin said.
But teeth can become dull with age.
Consider the other case where a specific fine and jail time are mentioned in the Missouri Constitution. A provision dating to 1875 allows the House and Senate to fine nonlawmakers up to $300 and place them in a county jail for up to 10 days for disrespecting the chambers “by any disorderly or contemptuous behavior” during their sessions.
It’s unclear whether that provision has been enforced. But clearly the fine has remained the same. Had it kept pace with inflation, that $300 fine now would be near $5,000.
Many decades from now, a $100,000 fine for fertilizing eggs for stem cell research may seem similarly low.
“The only way to change that is through a further constitutional amendment, and over time inflation will make that amount look ridiculous,” said Doug Abrams, a constitutional law professor at the University of Missouri-Columbia.
It’s also possible that a constitutionally created crime will seem dated as technology advances, Abrams said.
Consider the U.S. Constitution, which creates the crime of treason and defines it as levying war against the United States or adhering to its enemies, “giving them aid and comfort.” For a conviction, the constitution requires two witnesses to testify about the same act or a confession in open court.
A few weeks ago, Adam Yedihe Gadahn became the first American charged with treason in more than 50 years, for allegedly aiding al-Qaida.
Abrams attributed the infrequent charging of treason to the inflexibility of the constitution. He said federal legislators have gotten around that by creating numerous other crimes through laws that cover the same basic actions as treason.
Five years from now, there might be new stem cell research technology, potentially making the constitutional crimes seem outdated, he said.
Rubin expressed little concern that the crime or its fine could become stale, primarily because he doesn’t foresee them being frequently enforced.
“These are boundaries that very likely will never be violated,” Rubin said. “But they’re there to provide confidence to the people of Missouri that those acts cannot take place.”
Missourians Against Human Cloning, the group opposing the ballot measure, claims it’s deceptive for a variety of reasons — chiefly, because the measure would allow a cloning procedure known as somatic cell nuclear transfer, which it contends results in the destruction of early human life.
But the fact that the ballot measure would place specific criminal penalties in the state constitution is not among reasons it is urging people to vote against Amendment 2, said Cathy Ruse, an attorney and spokeswoman for the group.
Nonetheless, “it is unusual and extraordinary to put a criminal law like this in a constitution,” Ruse said.