TOPEKA — Gov. Sam Brownback on Friday called a special session of the Kansas Legislature to rewrite the state’s Hard 50 law amid a debate over whether it’s futile to try to preserve the long prison sentence in pending first-degree murder cases following a U.S. Supreme Court decision that raises questions about the law’s constitutionality.
Brownback set the special session for Sept. 3. He cited a “real and present danger” to public safety if lawmakers wait until after their next annual session convenes in January to ensure that convicted murderers still can be sentenced to life in prison with no chance of parole for 50 years.
Some legislators and prosecutors think the state can apply any changes in the Hard 50 law to defendants who have yet to be sentenced and provide new hearings for offenders who’ve appealed their sentences. But defense attorneys doubted such efforts would succeed, leaving offenders serving life sentences but eligible for parole after 25 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 as a punishment for future crimes. Jennifer Roth, of Topeka, said she and fellow defense attorneys see the changes lawmakers will consider as substantive enough that the Kansas Supreme Court wouldn’t let them apply retroactively – as it hasn’t with other, past changes.
“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 only two days after Attorney General Derek Schmidt, a fellow Republican, asked him to summon the GOP-dominated Legislature back to Topeka. State officials expect the session to cost the state from $35,000 to $40,000 a day, but Schmidt’s request had bipartisan support from legislators and prosecutors, as well as strong backing from law enforcement groups.
In Kansas, the only penalties tougher than the Hard 50 are capital punishment and life without parole, the alternative to death in a capital case and a sentence also possible for some habitual sex offenders. Schmidt said his office identified about two dozen Hard 50 cases that could be affected by the U.S. Supreme Court ruling in June.
The cases include an appeal before the state Supreme Court from Scott Roeder, convicted of the May 2009 death of George Tiller. Tiller, among a few U.S. physicians known to perform abortions in the last weeks of pregnancy, was gunned down in the foyer of his Wichita church.
Schmidt has said his office is working on legislation to have juries, rather than judges, weigh evidence in favor of and against imposing Hard 50 sentences going forward. Senate Judiciary Committee Chairman Jeff King, R-Independence, said the goal also is to have changes apply to defendants yet to be sentenced and to those with cases on appeal.
“There are things we can do with this that can give the vast majority of offenders, at least, the long sentences they deserve,” King said.
King, other legislators and prosecutors argue that because they’d change the sentencing process – without creating a new crime or lengthening sentences – they can apply the changes to existing cases.
Rep. John Rubin, R-Shawnee and chairman of the House Corrections and Juvenile Justice Committee, said that would allow additional district court hearings if a convicted murderer who received the Hard 50 had the sentence overturned on appeal.
“It seems to me that what we have to do is provide these people with new sentencing hearings before juries,” Rubin said.
But Schmidt acknowledged that the state may not be able to fully apply changes retroactively, and Reno County District Attorney Keith Schroeder said he doubts changes can help in cases in which defendants already have been sentenced.
Richard Ney, a Wichita defense attorney, called the idea of having new sentencing hearings in existing cases “a pipe dream,” saying, “You don’t get a do-over.”
“It doesn’t help in cases that have been finished, I guarantee it.”