Sentencing G-2 Civil Asset Forfeiture the Kansas Sentencing Guidelines Act (KSGA) Became Effective July 1, 1993

Kansas Legislator K a n s a s Briefing Book L e g i s l a t i v e R e s e a r c h 2018 D e p a r t m e n t

G-1 Judiciary, Corrections, and Juvenile Child Custody and Visitation Procedures Justice G-7 Sentencing G-2 Civil Asset Forfeiture The Kansas Sentencing Guidelines Act (KSGA) became effective July 1, 1993. Two grids containing the sentencing range for drug G-3 crimes and nondrug crimes were developed for use as a tool in Death Penalty in sentencing. Kansas The sentencing guidelines grids provide practitioners with an G-4 overview of presumptive felony sentences. Juvenile Services The determination of a felony sentence is based on two factors: the current crime of conviction and the offender’s prior criminal history. G-5 The sentence contained in the grid box at the juncture of the Kansas Prison severity level of the crime of conviction and the offender’s criminal Population and history category is the presumed sentence. See KSA 21-6804(c). Capacity

G-6 Off-Grid Crimes Mental Health and the Criminal Justice System The crimes of capital murder (KSA 21-5401), murder in the first degree (KSA 21-5402), terrorism (KSA 21-5421), illegal use of weapons of mass destruction (KSA 21-5422), and treason (KSA G-7 21-5901) are designated as off-grid person crimes. Sentencing Kansas law provides for the imposition of the death penalty, under G-8 certain circumstances, for a conviction of capital murder. (KSA 21- Sex Offenders and 5401 and KSA 21-6617) Where the death penalty is not imposed, Sexually Violent a conviction of capital murder carries a life sentence without Predators possibility of parole. (KSA 21-6620(a))

The remaining off-grid person crimes require life sentences with varying parole eligibility periods. Persons convicted of premeditated first-degree murder committed prior to July 1, 2014, are eligible for parole after serving 25 years of the life sentence, unless the trier of fact finds there were aggravating circumstances justifying the imposition of the “Hard 50” sentence (requiring 50 years to be served before parole eligibility).

Jordan Milholland Persons convicted of premeditated first-degree murder committed Research Analyst on or after July 1, 2014, are eligible for parole after serving 50 years 785-296-3181 of the life sentence, unless the sentencing judge, after a review of [email protected] mitigating circumstances, finds substantial and compelling reasons to impose the “Hard 25” sentence instead. (KSA 21-6620(c)) Kansas Legislative Research Department 2018 Briefing Book

Persons convicted of felony murder committed referred to as “border boxes.” A border box has a prior to July 1, 2014, are parole eligible after presumptive prison sentence, but the sentencing serving 20 years of the life sentence. Persons court may choose to impose an optional nonprison convicted of felony murder convicted on or after sentence, which will not constitute a departure. July 1, 2014, are parole eligible after serving 25 The nondrug grid contains three border boxes, in years of the life sentence. levels 5-H, 5-I, and 6-G. The drug grid contains seven dark shaded border boxes, in levels 4-E, Persons convicted of terrorism, illegal use of 4-F, 4-G, 4-H, 4-I, 5-C, and 5-D. (See KSA 21- weapons of mass destruction, or treason are 6804 and KSA 21-6805.) parole eligible after serving 20 years of the life sentence. (KSA 22-3717(b)(2)) Grid Boxes Also included in the off-grid group are certain sex offenses against victims under the age Within each grid box are three numbers, of 14: aggravated human trafficking (KSA 21- representing months of imprisonment. The three 5426(b)), rape (KSA 21-5503), aggravated numbers provide the sentencing court with a indecent liberties (KSA 21-5506(b)), aggravated range for sentencing. The sentencing court has criminal sodomy (KSA 21-5504(b)), commercial discretion to sentence within the range. The sexual exploitation of a child (KSA 21-6422), and middle number in the grid box is the standard sexual exploitation of a child (KSA 21-5510). number and is intended to be the appropriate Offenders sentenced for these off-grid crimes are sentence for typical cases. The upper and lower parole eligible after 25 years in confinement for numbers should be used for cases involving the first offense, parole eligible after 40 years in aggravating or mitigating factors sufficient to confinement for the second offense, or sentenced warrant a departure, as explained in the next to life without parole if they have been convicted paragraph. (KSA 21-6804 and 21-6805) of two or more of these offenses in the past. The sentencing court may depart upward to increase the length of a sentence up to double Drug Grid and Nondrug Grid the duration within the grid box. The court also may depart downward to lower the duration of a The drug grid is used for sentencing on drug presumptive sentence. See KSA 21-6815, 21- crimes described in KSA Chapter 21, Article 57. 6816, and 21-6817. The court also may impose a The nondrug grid is used for sentencing on other dispositional departure, from prison to probation felony crimes. In both grids, the criminal history or from probation to prison. (KSA 21-6818) categories make up the horizontal axis, and the crime severity levels make up the vertical axis. In State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), the predecessor to KSA 21-6815 was Each grid contains nine criminal history categories (2017 Drug Grid; 2017 NonDrug Grid). found to be “unconstitutional on its face” for the imposition of upward durational departure The drug grid contains five severity levels; the sentences by a judge and not a jury. In the 2002 nondrug grid contains ten severity levels. A thick, Legislative Session, the departure provisions black dispositional line cuts across both grids. were amended to correct the upward durational Above the dispositional line are unshaded grid departure problem arising from Gould. This boxes, which are designated as presumptive change became effective on June 6, 2002. The prison sentences. Below the dispositional line jury now determines all of the aggravating factors are shaded grid boxes, which are designated as that might enhance the maximum sentence, presumptive probation sentences. based upon the reasonable doubt standard. The trial court determines if the presentation of The grids also contain boxes that have a evidence regarding the aggravating factors will darkshaded color through them, which are be presented during the trial of the matter or in

2 Judiciary, Corrections, and Juvenile Justice 2018 Briefing Book Kansas Legislative Research Department a bifurcated jury proceeding following the trial. Postrelease Supervision (KSA 21-6817) Once offenders have served the prison portion of a sentence, most must serve a term of postrelease Sentencing Considerations supervision. For certain sex-related offenses, the postrelease supervision term is increased by The sentencing court should consider all the amount of any good time or program credits available alternatives in determining the earned and subtracted from the prison portion of appropriate sentence for each offender. The the offender’s sentence. For crimes committed sentencing guidelines seek to establish equity on or after July 1, 2012, offenders sentenced among like offenders in similar case scenarios. for drug severity levels 1-3 or nondrug severity Rehabilitative measures are still an integral part levels 1-4 must serve 36 months of postrelease of the corrections process, and criminal justice supervision, those sentenced for drug severity professionals continue efforts to reestablish level 4 or nondrug severity levels 5-6 must offenders within communities. The guidelines do serve 24 months, and those sentenced for drug not prohibit sentencing courts from departing from severity level 5 or nondrug severity levels 7-10 the prescribed sentence in atypical cases. The must serve 12 months. These periods may be sentencing court is free to choose an appropriate reduced based on an offender’s compliance and sentence, or combination of sentences, for each performance while on postrelease supervision. case. (KSA 21-6604) (KSA 22-3717(d)(1))

Good Time and Program Credits While on postrelease supervision, an offender must comply with the conditions of postrelease supervision, which include While incarcerated, offenders may earn (and reporting requirements; compliance with laws; forfeit) “good time” credits based upon factors restrictions on possession and use of weapons, such as program and work participation, conduct, drugs, and alcohol; employment and education and the inmate’s willingness to examine and requirements; restrictions on contact with victims confront past behavioral patterns that resulted or persons involved in illegal activity; and other in the commission of crimes. Depending on the conditions. A “technical violation” of the conditions severity level of the offender’s crime, the offender of postrelease supervision (such as failure to may earn up to 15 percent or 20 percent of the report) will result in imprisonment for six months, prison part of the sentence in good time credits. reduced by up to three months based upon the offender’s conduct during the imprisonment. A Additionally, offenders serving only a sentence violation based upon conviction of a new felony for a nondrug severity level 4 or lower crime or or a new misdemeanor will result in a period a drug severity level 3 or lower crime may earn of confinement as determined by the Prisoner up to 120 days of credit that may be earned Review Board, up to the remaining balance of the by inmates “for the successful completion of postrelease supervision period. (KSA 75-5217) requirements for a general education diploma, a technical or vocational training program, a substance abuse treatment program or any Recent Notable Sentencing Guidelines other program designated by the secretary which Legislation has been shown to reduce offender’s risk after release.” In 2006, the Kansas sentencing guidelines law dealing with upward departures was amended With a few exceptions for certain sex-related to add a new aggravating factor when the offenses, any good time or program credits crime involved two or more participants and earned and subtracted from an offender’s prison the defendant played a major role in the crime sentence are not added to the postrelease as an organizer, leader, recruiter, manager, or supervision term. (KSA 21-6821) supervisor.

G-7 Sentencing 3 Kansas Legislative Research Department 2018 Briefing Book

The law was amended further to add a new statute (KSA 21-6620) into doubt. Since 1994, mitigating factor for defendants who have provided in cases where a defendant was convicted of substantial assistance in the investigation or premeditated first degree murder, the statute prosecution of another person who is alleged to had allowed the sentencing court to impose have committed an offense. In considering this a life sentence without eligibility for parole for mitigating factor, the court may consider the 50 years when the judge found one or more following: aggravating factors were present. The Alleyne ●● The significance and usefulness of the decision indicated that such determinations must defendant’s assistance; be made by the trier of fact (usually a jury) using ●● The truthfulness, completeness, and a reasonable doubt standard, rather than by the reliability of any information; sentencing judge. ●● The nature and extent of the defendant’s assistance; In response to the Alleyne decision, Kansas ●● Any injury suffered, any danger of risk of Attorney General Derek Schmidt requested injury to the defendant or the defendant’s Governor Sam Brownback call the Kansas family; and Legislature into Special Session “for the purpose ●● The timeliness of the assistance. of repairing” the Hard 50 sentence. The Governor subsequently called the Legislature into Special In 2008, the Kansas sentencing guidelines were Session starting September 3, 2013, to respond amended to provide the following: to Alleyne. ●● No downward dispositional departure can be imposed for any crime of extreme Before the 2013 Special Session, the Special sexual violence. A downward durational Committee on Judiciary met to review Alleyne, departure can be allowed for any crime receive testimony, and report preliminary findings of extreme sexual violence to no less to the House and Senate Judiciary Committees than 50 percent of the center of the grid at the commencement of the Special Session. range of the sentence for such crime; The Special Committee recommended language and for a bill that would institute a jury procedure for ●● A sentencing judge cannot consider the Hard 50 determination. social factors as mitigating factors in determining whether substantial and At the Special Session, the Legislature considered compelling reasons exist for a downward and passed HB 2002, which was an amended departure. version of the language proposed by the Special In 2010, the Kansas Criminal Code, including Committee. HB 2002 went into effect upon its the sentencing guidelines, was recodified. The publication in the Kansas Register (September 6, recodification took effect July 1, 2011. Citations 2013). in this article are to the recodified code. In 2014, the Legislature passed HB 2490, In 2012, the Legislature passed Senate Sub. for which included amendments to the sentencing Sub. for HB 2318, which changed the drug grid provisions for premeditated first-degree murder, from a four-level grid to a five-level grid, adding attempted capital murder, and felony murder. a new level 2 with penalties falling between the existing first and second levels of the grid. The bill increased the default sentence for The new grid also expanded the presumptive premeditated first-degree murder committed on imprisonment boxes and the border boxes. or after July 1, 2014, from the Hard 25 sentence to the Hard 50 sentence. The sentencing judge In June 2013, the U.S. Supreme Court’s decision may impose the Hard 25 sentence if the judge in Alleyne v. U.S., 570 U.S. 2151, 133 S. Ct. reviews mitigating factors and finds substantial 2151, 186 L. Ed. 2D 314 (2013), called the and compelling reasons to impose the lesser constitutionality of Kansas’ “Hard 50” sentencing sentence.

4 Judiciary, Corrections, and Juvenile Justice 2018 Briefing Book Kansas Legislative Research Department

The bill also imposed the Hard 25 sentence for of Corrections issued a warrant to the date the attempted capital murder (previously a severity offender was arrested or returned to Kansas. level 1 felony) and felony murder (previously a Hard 20 sentence). HB 2463 amended statutes governing the determination of criminal history to add non- If a defendant’s criminal history when sentenced grid felonies, nondrug severity level 5 felonies, for any of these crimes would subject the and any drug severity level 1 through 4 felonies defendant to imprisonment for a term exceeding committed by an adult to the list of juvenile the Hard 50 or Hard 25 sentence (as applicable), adjudications that will decay if the current crime then the defendant will be required to serve the of conviction is committed after the offender mandatory minimum term equal to the sentence reaches age 25. The bill also allowed a court to established under the sentencing guidelines. continue or modify conditions of release for, or impose a 120- or 180-day prison sanction on an In 2015, the Legislature passed HB 2051, which offender who absconds from supervision, without increased the amount of good time inmates having to first impose a 2- or 3-day jail sanction. sentenced for post-July 1, 2012, drug severity Finally, the bill made a violation or an aggravated level 3 crimes may earn, to try to restore the violation of the Kansas Offender Registration general good time eligibility criteria to a similar Act a person offense if the underlying crime (for state as it existed before the 2012 changes to the which registration is required) is a person crime. drug grid. The bill also increased the amount of If the underlying crime is a nonperson crime, time that may be earned by any eligible inmate the registration offense is a nonperson crime. for program credits from 60 days to 90 days. Previously, a violation or aggravated violation of the Kansas Offender Registration Act was a The source for the attached sentencing range person crime regardless of the designation of the grid for drug offenses and nondrug offenses is underlying crime. the Kansas Sentencing Commission Guidelines, Desk Reference Manual, 2017. Legislation passed by the 2017 Legislature involving sentencing included SB 112 and HB In 2016, the Legislature passed three bills related 2092. SB 112, among other changes, enacts the to sentencing: HB 2151, HB 2447, and HB 2463. Law Enforcement Protection Act. This act creates HB 2151 authorized the Secretary of Corrections a special sentencing rule with enhanced penalties to transfer certain low- to moderate-risk offenders if a trier of fact finds beyond a reasonable doubt to house arrest pursuant to community parenting that an offender committed a nondrug felony release if the conditions listed in the bill are met offense (or an attempt or conspiracy to commit and the Secretary determines the offender’s such offense) against a law enforcement officer placement in the program is in the child’s best while the officer was performing the officer’s interests. The Secretary can return an offender duty or solely due to the officer’s status as a law to a correctional facility to serve the remaining enforcement officer. sentence if the offender fails to comply with release requirements. HB 2092, among other changes, amends law related to mandatory minimum sentences. The bill HB 2447 increased the maximum number of clarifies that mandatory minimum sentences will days an inmate’s sentence may be shortened not apply if, due to criminal history, the offender for earning program credits from 90 days to 120 would be subject to presumptive imprisonment for days. a severity level 1 crime for a term longer than the mandatory minimum. In such case, the offender The bill also permitted the dismissal of parole, would serve a sentence equal to the longer term conditional release, or postrelease supervision and would not be eligible for parole until the entire violation charges to be conditioned upon the sentence is completed. In addition, the sentence released inmate agreeing to credit being withheld could not be reduced by good time credits. for the period of time from the date the Secretary

G-7 Sentencing 5 Kansas Legislative Research Department 2018 Briefing Book

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6 Judiciary, Corrections, and Juvenile Justice 2018 Briefing Book Kansas Legislative Research Department

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G-7 Sentencing 7 Kansas Legislative Research Department 2018 Briefing Book

For more information, please contact:

Jordan Milholland, Research Analyst Robert Gallimore, Principal Research Analyst [email protected] [email protected]

Lauren Mendoza, Principal Research Analyst [email protected]

Kansas Legislative Research Department 300 SW 10th Ave., Room 68-West, Statehouse Topeka, KS 66612 Phone: (785) 296-3181 Fax: (785) 296-3824

8 Judiciary, Corrections, and Juvenile Justice