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In Wichita, state AG explains goals for special session to fix Hard 50 law

  • The Wichita Eagle
  • Published Monday, August 5, 2013, at 6:38 p.m.

Attorney General Derek Schmidt said Monday that he’s working with prosecutors across the state to come up with a consensus on how to fix the state’s Hard 50 sentencing law when the Legislature goes into special session next month.

He also said his staff is in the process of evaluating whether the state’s voter proof-of-citizenship law is enforceable in the wake of a U.S. Supreme Court decision that struck down a similar Arizona law.

Schmidt spoke Monday to the Rotary Club of Wichita, where he outlined the reasons why he asked for a special session to rewrite the Hard 50 law and what he hopes to accomplish.

The law allows judges to sentence convicted murderers to life in prison without possibility of parole for 50 years, when certain aggravating factors, such as torturing the victim, are part of the crime.

The constitutionality of Kansas’ Hard 50 law is questionable in the wake of a U.S. Supreme Court case that struck down a similar law in Virginia on the grounds that only juries, not judges, could make the factual findings necessary to impose the sentence, Schmidt said.

Schmidt said he hopes to outline a clear path for lawmakers to follow when they gather in Topeka starting Sept. 3 to fix the Hard 50 law.

“For our part, we will be focused on providing them what I hope will be a consensus document among the state’s prosecutors who are active on this, that this is the fix we would like you to enact,” Schmidt said. “And it will be up to the policy makers to decide what to do with it.”

While inaction until lawmakers return to regular session would have been an option, it wasn’t the best option, Schmidt said.

“The longer we wait to fix this problem, the greater the universe of cases that will be subject to that uncertainty,” Schmidt said.

Without a special session, “Every homicide that would otherwise be Hard 50 eligible that occurs in late September, in October, in November, in December, and at least the first half of January would be subject to that same uncertainty at a minimum and maybe not have the Hard 50 eligible,” Schmidt said.

“We thought that was not a good outcome with respect to public safety in Kansas.”

Voter ID law

After the meeting, Schmidt said that his office is also in the process of evaluating the constitutionality of the state law requiring voters to provide a birth certificate, passport or other proof-of-citizenship documents to register to vote.

The citizenship law is separate from the requirement that voters show state-issued photo identification at the polls. Many forms of commonly held ID, such as a driver’s license, can be used at the polling place but are not allowed as proof of citizenship for new registrants.

About the same time it ruled on Virginia’s Hard 50 law, the Supreme Court struck down an Arizona law requiring documented proof of citizenship.

The justices ruled that it conflicted with the federal Motor Voter Act, which allows voters to register based on a sworn statement that they are eligible citizens.

Schmidt confirmed that he had received a request for a formal legal opinion on Kansas’ proof-of-citizenship law from Senate Minority Leader Anthony Hensley, D-Topeka.

Last week, Hensley complained he hadn’t received any response to that request after six weeks, not even an acknowledgment that the attorney general’s office had received it.

“Because that’s pending, I can’t discuss the particulars of our thought process right now, but we are in the process of reviewing his request, conducting relevant research and assessing how to respond,” Schmidt said.

Secretary of State Kris Kobach, who wrote the proof-of-citizenship law, has said he thinks the Kansas version is different enough from Arizona’s to withstand a legal challenge.

The Arizona law required registrars to reject registration forms that didn’t come with the citizenship documentation. Kansas law differs in that registrars will accept the form and enroll the voter, although the person’s voting privileges are suspended until the citizenship documents are turned in, according to Kobach.

Kobach has also floated the possibility that Kansas could make two classes of voters. Those who provide citizenship papers would be allowed to vote in all federal, state and local elections, while those who don’t provide citizenship proof would be limited to voting only in federal races for president and members of Congress.

Schmidt declined to say whether he thinks it would be legal – or even a good idea.

“I’ll leave it to the policy makers to decide whether that’s the desired response to the Supreme Court decision,” he said. “We are right now focused on the legal questions surrounding that decision and how it may or may not apply to existing Kansas law.”

Schmidt said he hasn’t decided whether his office will issue a formal opinion on the proof-of-citizenship law.

He said several groups have indicated they may sue to test the law in court, which would outweigh any opinion he might issue.

Reach Dion Lefler at 316-268-6527 or dlefler@wichitaeagle.com.

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