Rader, DA get chances to persuade
03/27/2012 2:11 PM
03/27/2012 2:11 PM
The most notorious criminal in recent Kansas history will probably learn his punishment this week.
Beginning Wednesday, Dennis Rader will face the families of the victims whose lives he took, and he'll again face Judge Greg Waller.
"Is there any reason I should not proceed with sentencing?"
It's the question every judge in Sedgwick County District Court asks before imposing a sentence. Sometimes there are issues that delay sentencing, such as last-minute motions or other legal matters.
Waller will decide how long to spend on Rader's sentencing hearing, and how much information he needs to reach his conclusions. The hearing is expected to last two days or more.
In legal documents called stipulations, Rader, who confessed to being the BTK serial killer, has agreed to accept the maximum penalty for his crimes. Few expect him ever to be released from prison.
By agreeing to the stipulations, Rader had hoped to eliminate the need for a protracted sentencing hearing, at which evidence can be introduced. But stipulations carry weight only when agreed upon by both parties. District Attorney Nola Foulston has not agreed to the stipulations.
Judges also don't have to accept stipulations, just as they don't have to adhere to plea agreements that outline possible sentences.
Judges can sentence people who have committed multiple crimes in two ways. They can order that prison terms run concurrently. Or they can order criminals to serve sentences consecutively.
Much of the evidence expected to be presented at Rader's sentencing is intended to persuade Waller to run prison sentences consecutively.
One reason prosecutors push for consecutive life sentences is to reduce a criminal's chance for parole.
Because Rader committed his crimes a decade ago or more, he faces sentencing under decades-old laws. Kansas didn't have a death penalty on the books between 1972 and 1994. Rader committed his first four murders, of the Joseph Otero family, in 1974.
Nicknaming himself BTK, for "bind, torture and kill," Rader killed six more people between then and 1991. During most of that time, the penalty for murder was life in prison with parole eligibility in 15 years.
The wrinkle is that, even with consecutive life sentences, some inmates come up for parole after only 15 years. Convicted serial killer Donald Nemechek became eligible for parole 15 years after being sentenced for five murders in western Kansas from 1971 to 1976. Nemechek was denied parole and is still in prison.
By 1991, when Rader killed Dolores "Dee" Davis, Kansas had increased the penalty for the worst murders to the so-called Hard 40, a life sentence that prevents parole for 40 years.
When Rader waived his right to a preliminary hearing on May 3, prosecutors gave notice they would seek the Hard 40.
To win a Hard 40 sentence, the state must prove that "aggravating circumstances" made Rader's killings worse than other murders at the time. Foulston has said she intends to show that Rader killed Davis to eliminate a witness and escape prosecution, and that he killed her in a particularly cruel way.
The defense is allowed to present mitigating evidence. This does not excuse a crime, but rather offers an explanation that might cause a judge to impose a less severe sentence.
During Hard 40 sentencings, judges may allow evidence that wouldn't be admissible during a jury trial. Victims' families are also allowed to make statements to the judge.
And Rader will get yet another chance to speak. By law, he is allowed allocution.
Allocution is a means for Rader to explain himself or give other information to the court to consider in sentencing. Some defendants use allocution to apologize to victims.