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Kan. justices have 4 'Hard 50' cases to decide

Published on -12/15/2013, 4:01 PM

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TOPEKA, Kan. (AP) -- Justices of the Kansas Supreme Court now have four cases related to the state's "Hard 50" prison sentence to digest in the coming months, with about a dozen others still in the legal pipeline.

While each case has its specific set of circumstances, the justices honed in on other issues about the convictions and sentences, rather than whether changes made to the "Hard 50" law this fall can be applied retroactively like prosecutors and legislators want.

The four cases all involve defendants who have been sentenced to life in prison with eligibility for parole after 50 years. The penalty has been in place for more than two decades as an alternative to sentencing defendants in heinous crimes to the death penalty.

During the hearings, justices questioned the circumstances that triggered the "Hard 50" sentences originally, including prior felony convictions for murder, the number of victims in the crimes and known gang associations. Such factors qualified the cases for the harsher sentence without the consideration of mitigating circumstances that could trigger lesser punishment.

The defendants were all sentenced prior to the June U.S. Supreme Court's ruling in a case out of Virginia regarding the imposing of mandatory minimum sentences. The high court ruled that in such sentences only juries, not judges, as was the case in Kansas, can impose the mandatory minimum. Jurors also must weigh both factors supporting the "Hard 50" and those supporting a sentence of life with a mandatory 25 years before parole eligibility.

The justices didn't specifically rule on the Kansas law, but Attorney General Derek Schmidt said the court's opinion had the effect of finding the Kansas scheme unconstitutional. He asked Gov. Sam Brownback to call legislators into session to fix the law, which they did during a two-day special session in September.

While not commenting specifically about the hearings Monday and Tuesday in Topeka, Schmidt said he wasn't surprised by the arguments being raised on appeal, but he insisted the law and penalty were constitutional. He maintains that the changes made to the law were procedural in stating who makes the finding that a "Hard 50" is warranted.

"I think the arguments have been known and considered since the start of the process," Schmidt said.

Those arguments include the notion that changes made to the law amount to a new crime and punishment that didn't exist until September and thus couldn't be applied to cases that were decided as much as a decade ago. If the justices agree with defense attorneys that the changes violate the U.S. Constitution, the sentences would be set aside and the penalty would revert to a mandatory 25-year sentence before parole consideration.

The four cases heard thus far are the appeals of Dustin B. Hilt, Juan Lopez, Eldier Molina and Matthew Astorga, whose case was sent back to Kansas by the U.S. Supreme Court without a hearing following the June ruling in the Virginia case.

Randall Hodgkinson, an attorney for Astorga, was critical of the notion that the legislative changes could be used on the nearly four dozen "Hard 50" cases either still at the district court level or on appeal. He reinforced those arguments during Astorga's hearing Monday.

"It makes no difference whether (the legislative change) is labeled procedural or substantive, retrospective application would be prohibited," he said.

The justices gave no indication how quickly they would rule on the four cases, and their decisions could still leave the question of retroactivity unresolved if the facts of the convictions are upheld.

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