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'Hard 50' bill goes to governor

9/4/2013

By JOHN MILBURN

By JOHN MILBURN

Associated Press

TOPEKA -- The Kansas Senate sent Gov. Sam Brownback a bill Wednesday revising a state law that allows 50-year prison terms in certain murder cases, in a move that fixes a constitutional flaw and gives families of the victims more certainty that defendants will receive the proper punishment.

The legislation, prompted by a June U.S. Supreme Court ruling, requires juries rather than judges to decide if the facts of a case warrant a sentence of 50 years without parole. Legislators considered the measure during a two-day special session rather than waiting until their next annual session convenes in January.

Senators voted 40-0 to approve the bill, one day after the House approved the measure 122-0. It revises the state's so-called "Hard 50" law in reaction to the Supreme Court's opinion in a Virginia case. The high court ruled that giving judges the sole authority to determine whether to impose a mandatory minimum sentence was unconstitutional.

"It is a crisis," said Sen. Greg Smith, whose 18-year-old daughter, Kelsey, was raped and killed in 2007 after being kidnapped outside a Target store in Overland Park. "There are people who create heinous acts of murder who could get out of prison."

Brownback, who called legislators back to Topeka for the two-day session, praised lawmakers for taking action quickly. The Republican governor is expected to sign the bill within the coming weeks.

"The broad bipartisan support for the 'Hard 50' sentencing guidelines can be seen in the unanimous votes in both the House and Senate," Brownback said in a statement.

Kansas adopted the "Hard 50" in 1999, replacing a mandatory 40-year sentence that had been in place since 1990. The earlier sentence was a legislative compromise during a growing debate over capital punishment at the time. Kansas reinstated the death penalty in 1994.

The new law would apply to about 45 cases that are being tried or are on appeal. It would require jurors to weigh a limited list of aggravating circumstances during their deliberations to determine whether to recommend the 50-year sentence. The aggravating circumstances include: murder for hire; murder to avoid arrest or prosecution; a clear intention by the defendant for the murder to be heinous, atrocious or cruel; or a prior felony conviction in which the defendant inflicted great bodily harm on another person or caused his or her death.

There would be no restrictive list of mitigating factors for jurors to consider or for defense attorneys to offer during trial.

Attorney General Derek Schmidt said the legislation "closed the wound" to keep the number of cases that could be exempt from the 50-year sentence from growing.

"In a historically short session, they remained focused, fixed the problem and have given us the tools we need to maximize the likelihood that we can preserve existing 'Hard 50' sentences," Schmidt said after the Senate vote, "and perhaps more importantly, to ensure after this bill is published that the killers who commit particularly heinous homicides will know again that Kansas intends for them to remain behind bars for at least 50 years."

Schmidt, who asked Brownback to call the special session to fix the law, said the changes would not apply to the 106 defendants who have been sentenced to a Hard 40 or 50 since 1990. The former Senate majority leader said defendants in those cases already exhausted their appeals and could only be considered for a proposed new sentence if a court vacated their prison sentences on other grounds.

However, defense attorney Randall Hodgkinson raised questions about the proposed legislation as it pertained to evidence of prior convictions of a defendant that could influence a jury's decision to impose the mandatory 50-year sentence.

In the case of Sen. Smith's daughter, the new law would not apply. Edwin Hall was convicted in the slaying and sentenced to life in prison without parole after he pleaded guilty to avoid the death penalty.

But Smith said legislators "had the back" of those families in the 45 cases in which the law will apply. He said the longer prison sentences were important to keep families from facing parole hearings repeatedly with 25-year sentences.

"The families of the victims relive the event every time it's brought up," Smith said.