Senate approves revised Hard 50 sentencing law

09/24/2013 5:45 AM

08/08/2014 10:18 AM

After a tear-choked speech by a state senator whose teenage daughter was murdered, the Senate on Wednesday unanimously approved and sent to the governor a bill to revise the state’s Hard 50 sentencing law, bringing closure to a two-day special session of the Legislature.

As the House of Representatives did a day before, senators acted after turning aside an effort by Democrats to amend the bill to make it easier for Kansans to prove their citizenship when they register to vote – and break a logjam of 15,000 voters whose ballot privileges currently are suspended.

The current Hard 50 law allows state judges to impose a sentence of life without possibility of parole for 50 years if, in hearing a murder case, they find aggravating circumstances such as torturing the victim, desecrating the body or shooting into a crowd.

In June, the U.S. Supreme Court struck down a nearly identical Virginia law, ruling that juries, not judges, must make the decision on aggravating factors.

Sen. Greg Smith, R-Overland Park, criticized the court for its ruling, saying the federal justices had “made what was perfectly fine perfectly unfine.”

In 2007, Smith’s 18-year-old daughter, Kelsey, who had just graduated from high school, was abducted from an area department store, sexually assaulted and killed.

While carrying the bill on the floor, Smith, a schoolteacher, choked up several times when he talked about how the court decision had brought pain to the surviving families of murder victims by reminding them of the crimes and raising the possibility of having to face their loved ones’ murderers at parole hearings in as little as 25 years.

“Families of the victims relive the event every time it’s brought up,” Smith said. “It doesn’t matter what context.

“Maybe there’s a hearing in court, an appeals hearing; you have to talk about it again. Maybe there’s a parole hearing; you have to talk about it again. Maybe it’s a ruling by the Supreme Court to change the rules; you have to talk about it again.

“It never scars over. It’s a scab and it festers, and when something like this happens, you have to tear it off and you have to talk about it again. And all of the emotions come back as raw and as brutal as the day you found out what happened.”

The bill to fix the Hard 50 law primarily does two things:

• It gives 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.
• It creates 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.

The only testimony against the bill came from the Kansas Association of Criminal Defense Lawyers.

Randall Hodgkinson, a Washburn University law professor representing the group, voiced concerns with a part of the bill dealing with prior convictions and with the prospect of the law being applied to cases retroactively. He said that would result in more litigation by those who have been convicted.

“Generally speaking, changes in criminal procedure are only applied prospectively … but there are substantial issues as to whether this can be applied retroactively, which will be determined by the Kansas Supreme Court,” he said in an interview.

Kansas Attorney General Derek Schmidt, who requested the special session to repair the Hard 50 law, said he expects extensive litigation as defense lawyers seek resentencing or parole for their clients. He said there are about 90 convicted murderers serving sentences under the Hard 50 and Hard 40 laws who have exhausted their regular appeals but could seek resentencing through special procedures.

There are 16 cases currently on appeal and 29 in trial court in which prosecutors want to seek the Hard 50 sentence.

Voting rights

Only one senator attempted to amend the Hard 50 bill.

As Rep. Jim Ward had done the day before, Sen. Oletha Faust-Goudeau attempted to add language allowing Kansas voters to establish their citizenship and eligibility to vote by signing a sworn statement instead of having to provide documented proof. And like Ward’s, her amendment died on the floor when it was ruled out of order and not germane to the Hard 50 bill.

Ward and Faust-Goudeau, both Democrats from Wichita, said fixing the state’s voting law is as pressing a need as fixing the sentencing law – and for largely the same reasons. About the same time the Supreme Court struck down Virginia’s sentencing law, it also ruled that Arizona’s proof-of-citizenship voting requirements – which are similar to Kansas law – conflicted with a superseding law.

Both laws require prospective voter registrants to provide documents proving citizenship, generally a passport or birth certificate. Although the requirement is often confused with a requirement that voters provide photo ID when they vote at the polls, it is a separate provision of law and a driver’s license is generally not sufficient ID to prove citizenship to register to vote.

On Wednesday, Faust-Goudeau said she had checked with election officials and found that 15,640 prospective voters have had their registrations suspended and can’t vote because of the proof-of-citizenship law. Of those, 3,106 are in Sedgwick County.

Faust-Goudeau pointed out that the ID requirement to register is more stringent than the requirement to run for the Senate.

“We as legislators are not required to show a birth certificate when we run for office,” she said.

Although it was obvious from the start that her amendment would go nowhere, Faust-Goudeau said she had to try.

“I want it to go down in history that I am standing here today for those who died for the right to vote,” she said.

Contributing: Kelsey Ryan of The Eagle.

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