Challenges to 'Hard 50' fix months, years off

9/6/2013

TOPEKA (AP) — Attorneys and state officials said Thursday it was difficult to predict whether changes to the "Hard 50" sentence law will be applied to cases retroactively based on previous Kansas Supreme Court rulings.

TOPEKA (AP) — Attorneys and state officials said Thursday it was difficult to predict whether changes to the "Hard 50" sentence law will be applied to cases retroactively based on previous Kansas Supreme Court rulings.

Legislators on Wednesday sent Republican Gov. Sam Brownback a bill revising the law, which allows 50-year prison terms in certain murder cases. They wrapped up work on the measure — passing it 122-0 in the House and 40-0 in the Senate — over a two-day special session called by Brownback.

The governor plans to sign the legislation in the coming weeks. It was passed in response to a U.S. Supreme Court ruling in June in a Virginia case that said juries, not judges, should determine such extended prison sentences. Legislators expect to know within the next nine to 15 months — when the first of the 16 appeals is decided by the Kansas Supreme Court — whether the changes they made were acceptable.

House Judiciary Committee Chairman Lance Kinzer said Thursday that legislators could not wait until the 2014 legislative session in January to act on the law if they wanted to have any chance of saving the cases already in the pipeline.

"We know with 100 percent certainty that if we had waited we would have had no hope," said Kinzer, an Olathe Republican.

The bill was drafted over the past several weeks by Attorney General Derek Schmidt, key legislators and other legal staff to comply with the federal ruling. While the changes in the law will be applied in first-degree murder cases where prosecutors seek the extended prison sentence, the goal was to keep it an option for 29 cases that have yet to be decided at trial and 16 others in the appeals process.

"I've said more than once that we're going to be in litigation for years surrounding all of this," Schmidt said. "All of these cases caught in the period of uncertainty have to be answered by the court. But at least the Legislature has narrowed the universe of cases that it applies to."

In Kansas, the only penalties tougher than the Hard 50 are capital punishment and life without parole, with the latter being an alternative to death in a capital case and a sentence also possible for some habitual sex offenders. The new provisions of the law will require juries to weigh aggravating and mitigating circumstances in deciding whether defendants serve a minimum of 25 years in prison or the harsher 50-year term.

Jessica Glendening, a Lawrence attorney who testified during the special session, said the Kansas Supreme Court has rejected a legislative fix to a criminal law in recent months. The justices ruled in a Montgomery County case that a 2012 change in the law regarding the consideration of lesser included crimes when trying felony cases went beyond a procedural change. The court said it was a substantive change in law and couldn't be applied retroactively, sending the case back for resentencing.

"It's actually fairly similar," Glendening said.

If the court rules the changes can't be applied retroactive, the Hard 50 sentences would be reduced to 25 years to life.

Cases on appeal that could be set aside in the coming months include the case of Dana Chandler, a Duncan, Okla., woman convicted last year in the 2002 shootings of her ex-husband and his fiancee as they slept in their Topeka home.

There's also the case of Charles Christopher Logsdon, imprisoned over the shooting of a Hutchinson mother in her home while her 5-year-old son watched the Disney Channel in another room.

Another case is Scott Roeder's appeal before the state Supreme Court. Roeder was convicted of the May 2009 shooting death of Dr. George Tiller, who was among a few U.S. physicians known to perform abortions in the last weeks of pregnancy. Tiller was gunned down in the foyer of a Wichita church he attended.

Schmidt said the changes to the Hard 50 law should be viewed in the context of all state criminal laws and what occurs in courtrooms each day.

"Every day, attorneys argue that Kansas criminal laws are unconstitutional. That's part of our judicial process," he said. "The vast majority of the times they are rejected, but there are some cases where they hit the mark and changes have to be made.

"This is just a high-profile example of that."

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