TOPEKA — After a brief detour into voting rights, the Kansas House easily passed a bill to fix the constitutionally troubled Hard 50 sentencing law in a special session Tuesday.
The bill passed 122-0 and goes to the Senate, which will take it up on Wednesday.
It is an attempt to fix constitutional problems with the sentencing law, which specifies a sentence of life in prison without the possibility of parole for 50 years when aggravating factors are found in a murder case that doesn’t qualify for the death penalty.
Those factors include torturing a victim, desecrating a body or firing into a crowd.
The bill to amend the law was proposed after the Supreme Court struck down a similar Virginia statute as unconstitutional.
The Virginia law, like Kansas’, allowed a judge to decide on the aggravating factors. The Supreme Court said a jury must decide that.
That decision “opened a wound in our Hard 50 sentencing provision,” said Attorney General Derek Schmidt, who proposed calling the Legislature into its first special session in eight years to fix the law.
The bill passed in the House would:
• Give juries hearing murder cases the authority to decide whether there were aggravating factors that could trigger a Hard 50 sentence and whether there were mitigating factors that offset them.
• Create a procedure to empanel new juries if it is necessary to resentence convicts who have already received the Hard 50 sentence or its predecessor, the Hard 40.
Schmidt said he expects prolonged litigation as defense lawyers seek resentencing or sentence reductions for their clients.
He said there are about 90 convicted murderers serving Hard 40 and 50 sentences who have exhausted their regular appeals but could seek resentencing through special procedures, 16 cases currently on appeal and 29 in trial court where prosecutors want to seek the Hard 50.
He said his hope is that existing Hard 50 sentences can be upheld but with fallback provisions for additional proceedings to prevent convicted murderers from having their sentences reduced and becoming eligible for parole in 25 years.
Representatives who spoke in favor of the measure said they wanted to spare surviving families the trauma of having to repeatedly go before the Prisoner Review Board, the state’s parole panel, to keep the people convicted of murdering their loved ones behind bars.
Convicted murderers sentenced to the Hard 50 or Hard 40 sentence in recent years include anti-abortion activist Scott Roeder, who gunned down abortion provider George Tiller in his church.
The only opposition to the bill came from the Kansas Association of Criminal Defense Lawyers, which objected to trying to apply the new Hard 50 law to existing cases.
The defense lawyers – represented by Washburn University law professor Randall Hodgkinson and attorney Jessica Glendening of Lawrence – said the state can’t legally apply the proposed new law retroactively to crimes committed before its passage.
Schmidt and other supporters say that although “substantive” changes can’t legally be applied retroactively, “procedural” changes can.
They take the position that the changes proposed in the Hard 50 bill are procedural.
The defense lawyers disagreed.
“Stating something is a ‘procedural rule’ does not make it so,” Hodgkinson and Glendening said in written testimony.
“Most likely a defendant who’s facing 25 (extra) years is going to argue that’s not a procedural change,” Glendening said in live testimony to the House Judiciary Committee.
The vote on the Hard 50 came moments after House Republicans shot down an effort by Rep. Jim Ward, D-Wichita, to amend the bill to also address the state’s voter citizenship law.
About the same time the court ruled on Virginia’s sentencing law, it also struck down an Arizona law requiring prospective voter registrants to provide documented proof of citizenship, usually a birth certificate or passport.
Ward’s amendment would have allowed voters to prove citizenship by swearing out an affidavit under penalty of perjury, as in federal law.
The Republican-dominated House Rules Committee met briefly and ruled that Ward’s amendment was an election measure in essence and could not proceed because it was not germane to the underlying Hard 50 bill.
Ward argued that his amendment was germane because it established a crime and penalty for swearing a false citizenship affidavit.
He decided not to challenge the ruling in a floor vote showdown that he almost certainly would have lost.
However, he did criticize the House for paying more attention to fixing a law that applied to a few criminals while not fixing a problem for 15,000 Kansans whose voting rights are suspended over paperwork issues.
“That’s a terrible message,” he said. “I think both are important.”