TOPEKA — Kansas Attorney General Derek Schmidt on Wednesday asked Gov. Sam Brownback to call the Legislature into special session to rewrite the state’s “Hard 50” sentencing law following a recent U.S. Supreme Court ruling that raises questions about its constitutionality.
Schmidt told the governor in a letter that if the state waits to revise its law until lawmakers convene their next annual session in January, it runs the risk of convicted killers receiving lesser sentences. The law allows judges to sentence people convicted of first-degree murder to a minimum of 50 years in prison before they can seek parole, with a minimum of 25 years as an alternative.
The nation’s highest court ruled last month in a Virginia case that juries, not judges, should have the final say on the facts triggering mandatory minimum sentences. In Kansas, a judge decides whether aggravating factors warrant imposing the Hard 50 sentence.
A special legislative session is likely to have bipartisan support. Senate Judiciary Committee Chairman Jeff King, an Independence Republican, immediately backed the GOP attorney general’s request. While House Minority Leader Paul Davis, a Lawrence Democrat, stopped short of a full endorsement, he added, “I don’t know of any reason to believe we don’t need to have a special session.”
Schmidt said in his letter that his office identified about two-dozen murder cases that could be affected by the U.S. Supreme Court ruling last month, and there are probably more. King called rewriting the Kansas law “the single most important issue the Legislature has to address” because of its public safety implications.
“We need to address this as promptly as possible,” King said.
The attorney general recommended that the special session be scheduled no later than mid-September. He said in his letter that his office already is working on specific legislation, and Davis said he doubts a special session would be “protracted.”
King said: “I think it will be relatively easy to get a consensus.”
Schmidt did not return a cellphone message seeking comment, and spokesman Don Brown declined by email to comment. The attorney general scheduled a news conference for this morning in Topeka.
Brownback spokeswoman Eileen Hawley said the governor understands the attorney general’s concerns. “The governor will look at it, make a decision shortly,” she said.
A week after its June 17 ruling in the Virginia case, the U.S. Supreme Court sent another case back to the Kansas Supreme Court, which has repeatedly upheld the Hard 50 law’s constitutionality. It was the appeal of Matthew Astorga, convicted of premeditated first-degree murder in the shooting of another man in Leavenworth the day after Christmas 2008.
Others who’ve received a Hard 50 sentence from a judge include Scott Roeder, convicted of the May 2009 death of Dr. George Tiller, who was among a few U.S. physicians known to perform abortions in the last weeks of pregnancy. Tiller was gunned down in the foyer of his Wichita church.
Among other reasons, Kansas judges have been able to impose the Hard 50 if the defendant had previously been convicted of a felony involving disfigurement or dismemberment of the victim or knowingly created a great risk to more than one person. Also, murders committed to avoid arrest for imprisonment for another felony also are covered by the Hard 50 law.
“With each passing day, the loophole that has been created in Kansas law grows wider,” Schmidt wrote. “Because these are the ‘worst of the worst’ homicides, I believe the interests of public safety require us to act swiftly.”
The Kansas Legislature schedules annual 90-day sessions, and this year’s session formally adjourned June 20, three days after the U.S. Supreme Court ruled in the Virginia case. Legislators aren’t scheduled to reconvene until Jan. 13.
The last special legislative session in Kansas was in 2005, in response to a state Supreme Court order on education funding. The one before that, on property taxes, was in 1989.
“I am well aware of the weight of what I am recommending, but I believe bringing the Legislature back soon to address this problem rather than waiting until January is the right thing to do for public safety,” Schmidt wrote.