Kan. 'Hard 50' bill goes to governor

TOPEKA, Kan. (AP) -- The Kansas Senate sent Gov. Sam Brownback a bill on Wednesday revising a state law allowing 50-year sentences in certain murder cases to fix a constitutional flaw.

The legislation requires juries rather than judges to decide if the facts of a case warrant a sentence of 50 years without parole.

Senators voted 40-0 to approve the bill, one day after the House approved the measure 122-0, action that senators said would restore certainty to families of murder victims.

Kansas legislators revised the so-called "Hard 50" law during a special session prompted by a U.S. Supreme Court ruling 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 daughter Kelsey was brutally murdered in 2007. "There are people who create heinous acts of murder who could get out of prison."

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.

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 in those cases defendants had 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.