Analysis: Rhetoric clashing over Kansas ‘Hard 50′

Brownback Hard 50

TOPEKA, Kansas (AP) — State officials insist the Kansas Legislature’s coming special session to fix the state’s “Hard 50″ law is crucial for heading off a major threat to public safety, but when prosecutors go into court to ensure the tough sentence still applies in pending murder cases, they’ll be arguing that the changes in the law are no big deal.

The clashing rhetoric illustrates how symbolism drives the debate over fighting crime as officials wrestle with the detailed rules for prosecuting criminals and deciding how long they’ll stay behind bars.

Gov. Sam Brownback issued a proclamation last week to formally call the Legislature into special session on Sept. 3 to rewrite the “Hard 50″ law. One goal is seeing that convicted murderers can be sentenced in the future to life in prison with no chance of parole for 50 years, but another aim is ensuring that the punishment is preserved in pending cases.

Prosecutors and key legislators predict the courts will allow the state to apply changes in the law retroactively because the revisions will be merely “procedural,” not a shift in policy. Meanwhile, those same officials argue that each day without a fix increases the chance that a heinous offender might escape true justice.

“The ‘Hard 50′ issue is a perfect example that illustrates that procedure matters, and it matters a lot,” said Senate Judiciary Committee Chairman Jeff King, an Independence Republican.

Brownback called the special session at Attorney General Derek Schmidt’s urging in response to a U.S. Supreme Court ruling in June raising questions about the “Hard 50″ law’s constitutionality. Brownback and Schmidt are Republicans, and the GOP dominates the Legislature, but calling a special session had bipartisan support among legislators and prosecutors.

In Kansas, judges have determined whether aggravating factors in cases of premeditated, first-degree murder — such as whether a defendant tortured a victim or shot into a crowd — warrant the “Hard 50″ instead of a sentence of life in prison with parole eligibility in 25 years. But the U.S. Supreme Court ruled in a Virginia case that juries, not judges, must consider whether the facts in a case should prompt mandatory minimum sentences.

The basic change going forward in Kansas would be having juries consider the evidence arguing for and against a “Hard 50″ sentence, rather than judges. The state already has such a process in place in death penalty cases.

Brownback and legislative leaders argue that once Schmidt’s office finishes working with prosecutors on a proposal, lawmakers shouldn’t need a lot of time to enact a fix. The governor’s proclamation called on lawmakers to enact their bill within three days.

“We don’t have to reinvent the wheel,” said state Sen. David Haley of Kansas City, the ranking Democrat on the Senate Judiciary Committee.

Schmidt, Brownback, key legislators and prosecutors also want to make sure the “Hard 50″ remains a possible punishment in existing cases in which defendants have appealed their sentences or even have yet to be sentenced. Schmidt has said his office has identified about two dozen cases.

And that’s where talk about the potential changes suddenly becomes less exciting.

It’s not a given that the courts, in reviewing individual cases, will allow the state to apply a new “Hard 50″ law to crimes that occurred before it took effect.

Several defense attorneys have expressed strong doubts in recent weeks. Even Schmidt acknowledged that he can’t be sure of success and can argue only that by passing a new law quickly, the state will be in a better legal position.

Schmidt and other prosecutors plan to argue in court that the changes enacted by lawmakers aren’t substantive.

“We’re not trying to increase the sentence — that would be a problem,” said Wyandotte County District Attorney Jerome Gorman, a Democrat. “We’re just trying to make them eligible for the same sentence that they got.”

House Judiciary Committee Chairman Lance Kinzer, an Olathe Republican, said: “The only thing you change is process.”

That cool rhetoric contrasts with state officials’ comments in justifying a special session to fix the “Hard 50″ law, at an expected cost of $40,000 a day. House Speaker Ray Merrick, a Stilwell Republican, said last month that not moving quickly had “dangerous” implications and “could allow criminals to walk free after reduced sentences.”

Brownback signed his proclamation last week during a Statehouse ceremony flanked by legislators, other state officials, prosecutors and uniformed law enforcement officers in a show of solidarity.

The debate over the “Hard 50″ is likely to focus on broad themes and big symbols — even as legislators and prosecutors insist that the changes in the law aren’t a significant policy shift.

 

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