Gov. Sam Brownback on Friday called a special session of the Kansas Legislature to rewrite the state’s “Hard 50” sentencing law amid a debate over how effectively the state can respond to a court decision that raises questions about the law’s constitutionality.
Brownback set the special session for Sept. 3.
The governor cited a “real and present danger” to public safety if lawmakers wait until next year to ensure that convicted murderers still can be sentenced to life in prison with no chance of parole for 50 years.
The U.S. Supreme Court ruled last month in a Virginia case that juries must consider whether facts in a criminal case trigger mandatory minimum sentences. In Kansas, judges have determined whether aggravating factors in a premeditated, first-degree murder — such as whether a victim was tortured or the offender shot into a crowd — warrant the Hard 50.
“We must address this issue to protect all of our citizens, but particularly out of concern for the victims of these crimes and their families,” Brownback said in a statement.
Defense attorneys argued that the state probably will be limited to preserving the Hard 50 for future crimes. Jennifer Roth of Topeka said the changes that lawmakers will consider are substantive enough that the Kansas Supreme Court wouldn’t let them apply retroactively.
“One of the fundamental parts of criminal law is that you use the law in place at the time of the commission of your offense,” Roth said.
Brownback called the special session two days after Attorney General Derek Schmidt, a fellow Republican, asked him to do so. State officials expect the session to cost $35,000 to $40,000 a day, but Schmidt’s request had bipartisan support from legislators and prosecutors, plus strong backing from law enforcement groups.
In Kansas, the only penalties tougher than the Hard 50 are capital punishment and life without parole. If any Hard 50 sentences are nullified, offenders serve life sentences but are eligible for parole after 25 years.
Schmidt said his office identified about two dozen Hard 50 cases that could be affected by the U.S. Supreme Court ruling. They include an appeal by Scott Roeder, the Kansas City man convicted of fatally shooting abortion provider George Tiller in 2009.
Schmidt acknowledged that the state may not be able to fully apply changes retroactively, but some legislators and prosecutors argue otherwise because they would change only the sentencing process, without creating a crime or lengthening sentences.
“It seems to me that what we have to do is provide these people with new sentencing hearings before juries,” said Rep. John Rubin, a Shawnee Republican.