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Kan. AG acknowledges 'Hard 50' may not fully work

Published on -7/25/2013, 2:57 PM

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TOPEKA, Kan. (AP) -- Attorney General Derek Schmidt acknowledged Thursday that rewriting Kansas' "Hard 50" law still may not preserve the sentence for pending first-degree murder cases, but said the state will be in a better legal position if legislators approve a fix during a special session rather than waiting.

Schmidt said his office is working on a proposal responding to a U.S. Supreme Court decision last month about mandatory minimum sentences that raises questions about the law's constitutionality. It allows judges to sentence people convicted of premeditated murders to life in prison with no chance of parole for 50 years, Kansas' toughest penalty outside of capital punishment.

Schmidt asked Gov. Sam Brownback on Wednesday to call the Legislature into special session by mid-September to rewrite the "Hard 50" law. Legislators formally adjourned June 20 -- three days after the high court's ruling -- and aren't scheduled to convene again until January.

"There is never a guarantee in the criminal justice system," Schmidt said Thursday during a news conference. "For pending cases that are caught up in this period of uncertainty, our likelihood of getting the outcome that was intended -- the 'Hard 50' sentence -- is greater with the change than without it."

Schmidt's office said it has identified about two-dozen murder cases that could be affected, but said there are likely to be more.

The U.S. Supreme Court ruled in a Virginia case that juries, not judges, must weigh whether the facts in a case trigger mandatory minimum sentences in criminal cases. In Kansas, judges determine whether the aggravating factors in a first-degree murder case -- such as whether a victim was tortured or a defendant shot into a crowd of people -- warrant the "Hard 50" rather than a life sentence with parole eligibility after 25 years.

Schmidt said his office is already drafting a proposal to have juries consider such questions after a separate post-conviction hearing like they do in death penalty cases. He also said his office will propose that the changes apply retroactively to pending cases, rather than just future ones.

But he acknowledged Thursday that defense attorneys are likely to challenge attempts to preserve or impose "Hard 50" sentences.

Brownback spokeswoman Eileen Hawley said the governor will make a "timely" decision on a special session.

The Republican attorney general's request has bipartisan support from prosecutors. Schmidt was joined by the district attorneys for the state's four most populous counties, two of them Democrats.

The affected Kansas cases include an appeal before the state Supreme Court from Scott Roeder, convicted of the May 2009 death of Dr. George Tiller. Tiller -- among a few U.S. physicians known to perform abortions in the last weeks of pregnancy -- was gunned down in the foyer of his Wichita church.

"The longer we go without ending the period of uncertainty, the greater will be the number of cases that fall into that category," Schmidt said.

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