Tuesday, August 6, 2013

Brownback, Schmidt, law enforcement team up to call for quick fix to ‘Hard 50’ law

By SCOTT ROTHSCHILD, The Lawrence Journal-World

TOPEKA, KAN. — Gov. Sam Brownback, Attorney General Derek Schmidt and numerous law enforcement representatives on Tuesday said quick passage of legislation to fix the state's "Hard 50" prison sentence was needed to protect the public.

The Legislature will meet in a special session Sept. 3 to respond to a U.S. Supreme Court decision in a Virginia case that ruled juries must decide facts that figure into a prison sentence of 50 years with no possibility of parole.

The court's ruling June 17 essentially rendered current Kansas law unconstitutional because it leaves the determination of mitigating factors up to judges.

The "Hard 50" can be assessed against murder defendants when the facts of the case are determined to be particularly heinous.

Brownback said people who commit the kinds of murders that draw a "Hard 50" sentence "must not have the opportunity to harm another human being."

He called on legislators to focus legislative efforts only on fixing the law, and signed a special session proclamation that included a deadline to finish work by 5 p.m. Sept. 5.

Douglas County Sheriff Ken McGovern was among the approximately 20 law enforcement personnel who stood with Brownback.

McGovern said he agreed the "Hard 50" needed to be fixed as soon as possible. "These people need to be put away for the safety of the community and satisfaction of the (victim's) family," he said.

Without a "Hard 50" law, sentences of life in prison with the possibility of parole in 25 years could be given.

The possibility that a defendant in a particularly heinous murder could be released after 25 years was too soon, law enforcement officials said.

But criminal defense attorney Joseph Huerter, of Topeka, said the Legislature could wait until its regular session in January to fix the law.

Huerter argued no one convicted of a heinous murder is going to be granted parole at the first opportunity, and that judges could stack additional sentences on people charged with Hard 50-type murders because those slayings usually involve the commission of additional crimes.

"It is not like we are going to be overrun with murderers and rapists," Huerter said. "Instead we get to be overrun with legislators for a while to fix a problem that they made themselves."

Huerter said he felt the call of a special session was grandstanding on the part of politicians who want to appear tough on crime while deflecting attention away from state budget problems.

Kansas University law professor Melanie Wilson, a former federal prosecutor, said she believed the "Hard 50" needed to be fixed. "It leaves prosecutors in a real hard spot," she said.

There are 69 people in Kansas serving "Hard 50" sentences. Attorney General Schmidt said he believed the state would be able to preserve those sentences.

Schmidt said there are 30 to 35 defendants in "Hard 50" cases that have yet to go to trial, have not been sentenced or are still being appealed that may be affected immediately by the Supreme Court ruling. Those will probably entail further litigation, he said.

He said the state should "stop this problem from growing ever larger by fixing the statute prospectively as soon as possible."