2019 Legislator Briefing Book

Kansas Legislator Briefing Book 2019

G-1 Judiciary, Corrections, and Juvenile Adoption Justice G-2 G-8 Sentencing Child Custody and Visitation Procedures 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 Civil Asset Forfeiture in sentencing. (Note: The source for the attached sentencing range grid for drug offenses and nondrug offenses is the Kansas G-4 Sentencing Commission Guidelines, Desk Reference Manual, Death Penalty in 2018. These sentencing grids are provided at the end of this article Kansas for your convenience.)

The sentencing guidelines grids provide practitioners with an G-5 overview of presumptive felony sentences. Juvenile Services The determination of a felony sentence is based on two factors: G-6 the current crime of conviction and the offender’s prior criminal Kansas Prison history. The sentence contained in the grid box at the juncture Population, Capacity, of the severity level of the crime of conviction and the offender’s and Related Facility criminal history category is the presumed sentence. [See KSA 21- Issues 6804(c).]

G-7 Off-Grid Crimes Mental Health and the Criminal Justice The crimes of capital murder (KSA 2018 Supp. 21-5401), murder System in the first degree (KSA 2018 Supp. 21-5402), terrorism (KSA 2018 Supp. 21-5421), illegal use of weapons of mass destruction (KSA G-8 2018 Supp. 21-5422), and treason (KSA 2018 Supp. 21-5901) are Sentencing designated as off-grid person crimes.

G-9 Kansas law provides for the imposition of the death penalty, under Sex Offenders and certain circumstances, for a conviction of capital murder (KSA 2018 Supp. 21-5401 and KSA 2018 Supp. 21-6617). Where the Sexually Violent death penalty is not imposed, a conviction of capital murder carries Predators a life sentence without possibility of parole (KSA 2018 Supp. 21- 6620(a)).

The remaining off-grid person crimes require life sentences with varying parole eligibility periods. Persons convicted of premeditated Jordan Milholland first-degree murder committed prior to July 1, 2014, are eligible Research Analyst for parole after serving 25 years of the life sentence, unless the 785-296-3181 trier of fact finds there were aggravating circumstances justifying [email protected] the imposition of the Hard 50 sentence (requiring 50 years to be served before parole eligibility). Kansas Legislative Research Department 2019 Briefing Book

Persons convicted of premeditated first-degree The drug grid contains five severity levels; the murder committed on or after July 1, 2014, are nondrug grid contains ten severity levels. A thick, eligible for parole after serving 50 years of the black dispositional line cuts across both grids. life sentence, unless the sentencing judge, Above the dispositional line are unshaded grid after a review of mitigating circumstances, finds boxes, which are designated as presumptive substantial and compelling reasons to impose prison sentences. Below the dispositional line the Hard 25 sentence instead (KSA 2018 Supp. are shaded grid boxes, which are designated as 21-6620(c)). presumptive probation sentences.

Persons convicted of felony murder committed The grids also contain boxes that have a dark prior to July 1, 2014, are parole eligible after shaded color through them, which are referred serving 20 years of the life sentence. Persons to as “border boxes.” A border box has a convicted of felony murder convicted on or after presumptive prison sentence, but the sentencing July 1, 2014, are parole eligible after serving 25 court may choose to impose an optional nonprison years of the life sentence. sentence, which will not constitute a departure. The nondrug grid contains three border boxes, in Persons convicted of terrorism, illegal use of levels 5-H, 5-I, and 6-G. The drug grid contains weapons of mass destruction, or treason are seven dark-shaded border boxes, in levels 4-E, parole eligible after serving 20 years of the life 4-F, 4-G, 4-H, 4-I, 5-C, and 5-D. [See KSA 2018 sentence (KSA 2018 Supp. 22-3717(b)(2)). Supp. 21-6804 and KSA 2018 Supp. 21-6805.]

Also included in the off-grid group are certain Grid Boxes sex offenses against victims under the age of 14: aggravated human trafficking (KSA 2018 Supp. Within each grid box are three numbers, which 21-5426(b)), rape (KSA 2018 Supp. 21-5503), represent months of imprisonment. The three aggravated indecent liberties (KSA 2018 Supp. numbers provide the sentencing court with a 21-5506(b)), aggravated criminal sodomy (KSA range for sentencing. The sentencing court has 2018 Supp. 21-5504(b)), commercial sexual discretion to sentence within the range. The exploitation of a child (KSA 2018 Supp. 21-6422), middle number in the grid box is the standard and sexual exploitation of a child (KSA 2018 number and is intended to be the appropriate Supp. 21-5510). Offenders sentenced for these sentence for typical cases. The upper and lower off-grid crimes are parole eligible after 25 years numbers should be used for cases involving in confinement for the first offense, parole eligible aggravating or mitigating factors sufficient to after 40 years in confinement for the second warrant a departure, as explained in the next offense, or sentenced to life without parole if they paragraph. [See KSA 2018 Supp. 21-6804 and have been convicted of two or more of these KSA 2018 Supp. 21-6805.] 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 2018 Supp. 21- crimes described in KSA Chapter 21, Article 57. 6815, 21-6816, and 21-6817.] The court also may The nondrug grid is used for sentencing on other impose a dispositional departure, from prison to felony crimes. In both grids, the criminal history probation or from probation to prison (KSA 2018 categories make up the horizontal axis and the Supp. 21-6818). crime severity levels make up the vertical axis. In State v. Gould, 271 Kan. 394, 23 P.3d 801 Each grid contains nine criminal history categories (2001), the predecessor to KSA 21-6815 was (2018 Drug Grid; 2018 Nondrug Grid). found to be “unconstitutional on its face” for

Judiciary, Corrections, and Juvenile Justice 2 2019 Briefing Book Kansas Legislative Research Department

the imposition of upward durational departure Sentencing Considerations sentences by a judge and not a jury. In the 2002 Legislative Session, the departure provisions The sentencing court should consider all were amended to correct the upward durational available alternatives in determining the departure problem arising from Gould. This appropriate sentence for each offender. The change became effective on June 6, 2002. The sentencing guidelines seek to establish equity jury now determines all of the aggravating factors among like offenders in similar case scenarios. that might enhance the maximum sentence, Rehabilitative measures are still an integral part based upon the reasonable doubt standard. of the corrections process, and criminal justice The trial court determines if the presentation of professionals continue efforts to reestablish evidence regarding the aggravating factors will offenders within communities. The guidelines do be presented during the trial of the matter or in a not prohibit sentencing courts from departing from bifurcated jury proceeding following the trial (KSA the prescribed sentence in atypical cases. The 2018 Supp. 21-6817). sentencing court is free to choose an appropriate sentence, or combination of sentences, for each Probation case (KSA 2018 Supp. 21-6604).

Probation is a procedure by which a convicted Good Time and Program Credits defendant is released after sentencing, subject to conditions imposed by the court and supervision While incarcerated, offenders may earn (and by the probation service of the court or community forfeit) “good time” credits based upon factors corrections, generally without serving a period of like program and work participation, conduct, and imprisonment (although a felony offender may be the inmate’s willingness to examine and confront sentenced to up to 60 days in county jail as a past behavioral patterns that resulted in the condition of probation). As noted above, a number of boxes on the sentencing grids are designated commission of crimes. Depending on the severity “presumptive probation,” which means probation level of the offender’s crime, the offender may will be granted unless a departure sentence earn up to 15 percent or 20 percent of the prison is imposed. An underlying prison sentence is part of the sentence in good time credits. still imposed in felony cases where probation is Additionally, offenders serving only a sentence granted, and if the defendant is subsequently for a nondrug severity level 4 or lower crime or found to have violated a condition of probation, probation may be revoked and the defendant a drug severity level 3 or lower crime may earn required to serve the underlying prison term. up to 120 days of credit that may be earned Other possible actions a court may take upon by inmates “for the successful completion of a violation of probation include continuation of requirements for a general education diploma, probation, modification of probation conditions, a technical or vocational training program, a or various periods of confinement in a county jail. substance abuse treatment program or any In some cases, where a defendant has waived other program designated by the secretary which the right to a hearing on a probation condition has been shown to reduce offender’s risk after violation, court services or community corrections release.” may impose two- or three-day “quick dip” periods of confinement in a county jail. With a few exceptions for certain sex-related offenses, any good time or program credits Recommended probation terms range from under earned and subtracted from an offender’s prison 12 to 36 months, depending on the severity level sentence are not added to the postrelease of the crime of conviction. supervision term (KSA 2018 Supp. 21-6821).

Judiciary, Corrections, and Juvenile Justice G-8 Sentencing 3 Kansas Legislative Research Department 2019 Briefing Book

Postrelease Supervision as an organizer, leader, recruiter, manager, or supervisor. Once offenders have served the prison portion of a sentence, most must serve a term of postrelease The law was amended further to add a new supervision. For certain sex-related offenses, the mitigating factor for defendants who have provided postrelease supervision term is increased by substantial assistance in the investigation or the amount of any good time or program credits prosecution of another person who is alleged to earned and subtracted from the prison portion of have committed an offense. In considering this the offender’s sentence. For crimes committed mitigating factor, the court may consider the on or after July 1, 2012, offenders sentenced following: for drug severity levels 1-3 or nondrug severity ●● The significance and usefulness of the levels 1-4 must serve 36 months of postrelease defendant’s assistance; supervision, those sentenced for drug severity ●● The truthfulness, completeness, and level 4 or nondrug severity levels 5-6 must reliability of any information; serve 24 months, and those sentenced for drug severity level 5 or nondrug severity levels 7-10 ●● The nature and extent of the defendant’s must serve 12 months. These periods may be assistance; reduced based on an offender’s compliance and ●● Any injury suffered or any danger of performance while on postrelease supervision risk of injury to the defendant or the (KSA 2018 Supp. 22-3717(d)(1)). defendant’s family; and ●● The timeliness of the assistance. While on postrelease supervision, an offender must comply with the conditions In 2008, the Kansas sentencing guidelines were of postrelease supervision, which include amended to provide the following: reporting requirements; compliance with laws; ●● No downward dispositional departure restrictions on possession and use of weapons, can be imposed for any crime of extreme drugs, and alcohol; employment and education sexual violence. A downward durational requirements; restrictions on contact with victims departure can be allowed for any crime or persons involved in illegal activity; and other of extreme sexual violence to no less conditions. A “technical violation” of the conditions than 50 percent of the center of the grid of postrelease supervision (such as failure to range of the sentence for such crime; report) will result in imprisonment for six months, and reduced by up to three months based upon the ●● A sentencing judge cannot consider offender’s conduct during the imprisonment. A social factors as mitigating factors in violation based upon conviction of a new felony determining whether substantial and or a new misdemeanor will result in a period compelling reasons exist for a downward of confinement as determined by the Prisoner departure. Review Board, up to the remaining balance of the postrelease supervision period (KSA 2018 Supp. In 2010, the Kansas Criminal Code, including 75-5217). the sentencing guidelines, was recodified. The recodification took effect July 1, 2011. Citations in this article are to the recodified code. Recent Notable Sentencing Guidelines Legislation In 2012, the Legislature passed Senate Sub. for Sub. for HB 2318, which changed the drug grid In 2006, the Kansas sentencing guidelines law from a four-level grid to a five-level grid, adding dealing with upward departures was amended a new level 2 with penalties falling between to add a new aggravating factor when the the existing first and second levels of the grid. crime involved two or more participants and The new grid also expanded the presumptive the defendant played a major role in the crime imprisonment boxes and the border boxes.

Judiciary, Corrections, and Juvenile Justice 4 2019 Briefing Book Kansas Legislative Research Department

In June 2013, the U.S. Supreme Court’s decision reviews mitigating factors and finds substantial in Alleyne v. U.S., 570 U.S. 2151, 133 S. Ct. and compelling reasons to impose the lesser 2151, 186 L. Ed. 2D 314 (2013), called the sentence. constitutionality of Kansas’ Hard 50 sentencing statute (KSA 21-6620) into doubt. Since 1994, The bill also imposed the Hard 25 sentence for in cases where a defendant was convicted of attempted capital murder (previously a severity premeditated first-degree murder, the statute level 1 felony) and felony murder (previously a had allowed the sentencing court to impose Hard 20 sentence). a life sentence without eligibility for parole for 50 years when the judge found one or more If a defendant’s criminal history when sentenced aggravating factors were present. The Alleyne for any of these crimes would subject the decision indicated that such determinations must defendant to imprisonment for a term exceeding be made by the trier of fact (usually a jury) using the Hard 50 or Hard 25 sentence (as applicable), a reasonable doubt standard, rather than by the the defendant will be required to serve the sentencing judge. mandatory minimum term equal to the sentence established under the sentencing guidelines. In response to the Alleyne decision, Kansas Attorney General Derek Schmidt requested In 2015, the Legislature passed HB 2051, which Governor Sam Brownback call the Kansas increased the amount of good time inmates Legislature into Special Session “for the purpose sentenced for post-July 1, 2012, drug severity of repairing” the Hard 50 sentence. The Governor level 3 crimes may earn, to try to restore the subsequently called the Legislature into Special general good time eligibility criteria to a similar Session starting September 3, 2013, to respond state as it existed before the 2012 changes to the to Alleyne. drug grid. The bill also increased the amount of time from 60 days to 90 days that may be earned Before the 2013 Special Session, the Special by any eligible inmate for program credits. Committee on Judiciary met to review Alleyne, receive testimony, and report preliminary findings In 2016, the Legislature passed three bills related to the House and Senate Judiciary Committees to sentencing: HB 2151, HB 2447, and HB 2463. at the commencement of the Special Session. HB 2151 authorized the Secretary of Corrections The Special Committee recommended language to transfer certain low- to moderate-risk offenders for a bill that would institute a jury procedure for to house arrest pursuant to community parenting the Hard 50 determination. release if the conditions listed in the bill are met At the Special Session, the Legislature considered and the Secretary determines the offender’s and passed HB 2002, which was an amended placement in the program is in the child’s best version of the language proposed by the Special interests. The Secretary can return an offender Committee. HB 2002 went into effect upon its to a correctional facility to serve the remaining publication in the Kansas Register (September 6, sentence if the offender fails to comply with 2013). release requirements.

In 2014, the Legislature passed HB 2490, HB 2447 increased the maximum number of which included amendments to the sentencing days an inmate’s sentence may be shortened provisions for premeditated first-degree murder, for earning program credits from 90 days to 120 attempted capital murder, and felony murder. days.

The bill increased the default sentence for The bill also permitted the dismissal of parole, premeditated first-degree murder committed on conditional release, or postrelease supervision or after July 1, 2014, from the Hard 25 sentence violation charges to be conditioned upon the to the Hard 50 sentence. The sentencing judge released inmate agreeing to credit being withheld may impose the Hard 25 sentence if the judge for the period of time from the date the Secretary

Judiciary, Corrections, and Juvenile Justice G-8 Sentencing 5 Kansas Legislative Research Department 2019 Briefing Book

of Corrections issued a warrant to the date the Legislation passed by the 2017 Legislature offender was arrested or returned to Kansas. involving sentencing included SB 112 and HB 2092. SB 112, among other changes, enacts the HB 2463 amended statutes governing the Law Enforcement Protection Act. This act creates determination of criminal history to add nongrid a special sentencing rule with enhanced penalties felonies, nondrug severity level 5 felonies, and if a trier of fact finds beyond a reasonable doubt any drug severity level 1 through 4 felonies that an offender committed a nondrug felony committed by an adult to the list of juvenile offense (or an attempt or conspiracy to commit adjudications that will decay if the current crime such offense) against a law enforcement officer of conviction is committed after the offender while the officer was performing the officer’s reaches age 25. The bill also allowed a court to duty or solely due to the officer’s status as a law continue or modify conditions of release for, or enforcement officer. impose a 120- or 180-day prison sanction on, an offender who absconds from supervision, without HB 2092, among other changes, amends law having to first impose a 2- or 3-day jail sanction. related to mandatory minimum sentences. The bill Finally, the bill made a violation or an aggravated clarifies that mandatory minimum sentences will violation of the Kansas Offender Registration not apply if, due to criminal history, the offender Act a person offense if the underlying crime (for would be subject to presumptive imprisonment for which registration is required) is a person crime. a severity level 1 crime for a term longer than the If the underlying crime is a nonperson crime, mandatory minimum. In such case, the offender the registration offense is a nonperson crime. would serve a sentence equal to the longer term Previously, a violation or aggravated violation and would not be eligible for parole until the entire of the Kansas Offender Registration Act was a sentence is completed. In addition, the sentence person crime regardless of the designation of the could not be reduced by good time credits. underlying crime.

Judiciary, Corrections, and Juvenile Justice 6

92 46 14 10 138

I 98 49 15 11 146 15% 15% 20% 20% *20 *

Good Time Good No Record

1 Misdemeanor 154 103 51 16 12

96 49 17 12

142

ion

H 36 36 36 51 18 13 2 + 150 100 ≤ 18 *≤12

Probat

Misdemeanors 161 108 54 19 14

99 51 20 14 146

G 36 36 36 24 12 54 22 15 154 104 Felony is distributed or possessed w/ intent to distribute on distribute to possessed w/ intent or distributed is

Postrelease

1 Nonperson 162 110 57 23 16

52 23 16

150 101

99 2019 Briefing Book Kansas Legislative999 Research Department

- - F 56 24 17 <10 158 108 10 >1000 100

Felonies

Dosage Units 2 Nonperson SL4), $100,000 (SL5) SL4), 167 113 59 26 18 -

92 46 14 10 55 28 18

138 154 105

% 59 30 20

I 162 111 98 49 15 11 99 plants99 146 20% 20% 15% 15% 49 plants 49 - DRUG OFFENSES - *20 Cultivate

Felonies

>100 plants >100

50 - Good Time Good E

No Record

3 + Nonperson 170 116 62 32 22

SL2), $300,000 (SL3 SL2), - 1 Misdemeanor 154 103 51 16 12

60 32 23

161 111

96 49 17 12

Appendix Appendix

142

D 64 34 24 1st (all) 170 117

ion

Felony

1 Person H 36 36 36 Manufacture Manufacture 51 18 13 2 + 2nd or Meth 150 100 ≤ 18 *≤12

179 124 68 36 26

Probat KSG DeskKSG Reference Manual 201

65 37 28

Misdemeanors 161 108 54 19 14

3rd 169 117

kg 30

g 450 99 51 20 14

C - 68 40 30 146

178 123 < g 25

≥ 30 kg offense Felony

Marijuana

25 g

1 Person & 450 g 450 G 36 36 36 24 12 54 22 15 Severity level of offense increases level oneSeverity if controlled level orsubstance analog Fines not to exceed $500,000 (SL1 $500,000 Fines exceed not to 1 Nonperson 154 104 Possession 187 130 72 42 32   of any schoolft or property. w/in 1000 Felony is distributed or possessed w/ intent to distribute on distribute to possessed w/ intent or distributed is

Postrelease

1 Nonperson

162 110 57 23 16

68 41 32

176 122

SENTENCING RANGE

100 g

52 23 16 g 3.5

B - 150 101 73 44 34

186 130 < 1 g

≥ 100 g

Felonies 1 g 2 Person 99 999

- - 3.5 g3.5 Possession F Meth & Heroin 56 24 17 <10 196 137 77 47 36 158 108 10 >1000 100

Felonies

Dosage Units 2 Nonperson

74 46 37

SL4), $100,000 (SL5) SL4), 167 113 59 26 18 - 185 130

1 kg

100 g

8 - A

78 49 40 55 28 18

194 136

154 105

Distribute or Possess w/ or Possess intent Distribute to Distribute ≥ 1 kg < 3.5 g < 3.5

Cocaine Cocaine

Felonies

100 g 100 Possession 3 + Person 3.5 g3.5

204 144 83 51 42

E 59 30 20 162 111 99 plants99 49 plants 49 - DRUG OFFENSES - Cultivate

Felonies

5 >100 plants >100

50 -

3 + Nonperson 170 116 62 32 22 SL2), $300,000 (SL3 SL2), - →

Border Box Border

60 32 23

I II V II offendersSB123 months18 2003 for ≤ V III IV III IV 161 111

↓

*** Retroactive application for offense committed on or after July 1, 2012 offense application for July 1, on committed *** Retroactive or after

Levels Appendix Appendix

Presumptive Probation

D 64 34 24 1st (all) 170 117 Presumptive Imprisonment

Categories Felony

Severity Level Level Severity 1 Person Manufacture Manufacture 2nd or Meth

179 124 68 36 26 KSG DeskKSG Reference Manual 201

65 37 28

3rd 169 117

kg 30

g 450

C - 68 40 30 178 123 < g 25 ≥ 30 kg offense Felony

Marijuana 25 g

1 Person & 450 g 450 Severity level of offense increases level oneSeverity if controlled level orsubstance analog Fines not to exceed $500,000 (SL1 $500,000 Fines exceed not to 1 Nonperson Possession or w/in 1000 ft of of any schoolft or property. w/in 1000 187 130 72 42 32  

68 41 32

176 122

SENTENCING RANGE

100 g

g 3.5

- B - 73 44 34

186 130 < 1 g

≥ 100 g

Felonies 1 g 2 Person 3.5 g3.5 Possession Meth & Heroin 196 137 77 47 36

74 46 37

185 130

1 kg

100 g

- A 78 49 40 194 136 Distribute or Possess w/ or Possess intent Distribute to Distribute ≥ 1 kg < 3.5 g < 3.5

Cocaine Cocaine

Felonies 100 g 100 Possession 3 + Person 3.5 g3.5

204 144 83 51 42

→

Border Box Border

I I II V II offendersSB123 months18 2003 for ≤ V III IV III IV

↓ * *** Retroactive application for offense committed on or after July 1, 2012 offense application for July 1, on committed *** Retroactive or after Levels Presumptive Probation Presumptive Imprisonment Categories Severity Level Level Severity

Judiciary, Corrections, and Juvenile Justice G-8 Sentencing 7 Kansas Legislative Research Department 2019 Briefing Book

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Judiciary, Corrections, and Juvenile Justice 8 2019 Briefing Book Kansas Legislative Research Department

For more information, please contact:

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

Isaac Elyacharshuster, Fiscal Analyst [email protected]

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

Judiciary, Corrections, and Juvenile Justice G-8 Sentencing 9