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What Will Become Of The Hard 50?

The Kansas Legislature will hold a special session starting September 3rd to address the “Hard 50” law that allows judges to sentence convicted murderers to serve at least 50 years in prison. A recent Supreme Court case said a jury needs to be part of those decisions.

Alison McKenney-Brown teaches criminal law at Wichita State University and is the city attorney for Haysville and Bel Aire, Kansas. KMUW’s Carla Eckels spoke with McKenney-Brown about the necessity of the session and possible changes in the law.

Eckels:  Alison, What is the “Hard 50” Sentencing law?

McKenney-Brown:  In Kansas, state statute provides that if a defendant is convicted of murder in the first degree-- now that’s not the death penalty, but murder in the first degree-- based upon the finding of premeditated murder, the judge determines whether to impose a mandatory term of imprisonment of 50 years or sentence the individual as otherwise provided by law, which is less than 50 years.

Eckels:  So now what’s happening with the Supreme Court, they’ve decided that a jury should be allowed to weigh in on this sentence?

McKenney-Brown:  The United States Supreme Court decided a case in June of this year and when they decided that case, they changed the understanding of the 6th Amendment to the United States Constitution. Previously, it was permitted under the 6th Amendment for judges to make decisions in sentencing that might raise or lower a sentence. Subsequent to this decision in June, judges may no longer make decisions about what facts are relevant to raise or lower a sentence. Those decisions now have to be made by a jury.

Eckels:  Why do lawmakers need to rewrite the law?

McKenney-Brown:  Any Hard 50 sentence that is imposed after the June 17th United States Supreme Court decision is potentially unconstitutional. We’re very concerned in Kansas that if we impose several sentences of the “Hard 50” sentence before we change the law, all of those sentences are going to be grounds for appeal and we’ll have to go back and not only re-sentence these people but possibly retry them depending on how long it takes to get the appeal through or other issues. So it’s appropriate to sentence people constitutionally the first time they’re sentenced.

Eckels: What about, for example, the man that’s been convicted of stomping his girlfriend to death? I understand that the Sedgwick County prosecutors are seeking the Hard 50 sentence. Would that case be part of this?

McKenney-Brown:  Absolutely. The way I understand this, the Sedgwick County District Attorney’s office has decided that they want to pursue Hard 50 sentences because they believe that the Hard 50 sentence will not be found unconstitutional when it’s tested before an appellate court that would be the Kansas Supreme Court and the United States Supreme Court.  Many other legal scholars in Kansas are of the opinion that it will be found unconstitutional so they’re not wanting to use it. So, here in Kansas we currently have a discrepancy of legal opinion on what will happen with the Hard 50 sentence if we continue to impose it. 

Eckels:  You said that they don’t want to use it?

McKenney-Brown:  Most legal scholars believe that it is unconstitutional and most district attorney’s offices or county attorney’s offices are very cautious about using it because the don’t want it to be grounds for an appeal, when these cases go up on appeal.

Eckels:  Do you think that’s the reason why the governor wants to hold this special session next month rather than wait until January when the next session begins?

McKenney-Brown:  What we’ve been told is that this session is to address the issues of constitutionality in the Hard 50 sentence and it does make sense to have a special session to address this particular issue because these are very serious sentences and if we are imposing this serious of a sentence as a state, and it’s an unconstitutional sentence, then we are acting outside of the Constitution. The other thing we are doing is creating grounds for an appeal of a first degree murder sentence and we don’t want to do that either because there are a lot of costs associated with appellate cases, and if as a state we can reduce the grounds for appeal we can possibly reduce some of the costs associated with the appeal.

Eckels:  There’s been talk about other issues that may be addressed in the special session including appointment of appellate judges.

McKenney-Brown:  We’ve been hearing discussions about an appointment to the Kansas Supreme Court. Governor Brownback at this time has an opening on the Kansas Supreme Court that was made vacant recently with an appointment to the 10th Circuit. So it is possible that that could come up at this point. It is also possible that he could wait. We just don’t know at this time if that’s going to be included.

Eckels:  I understand it’s going to cost $40,000 a day to hold this special session, at a time when budgets are tight. Why is this worth the taxpayers’ money?

McKenney-Brown:  If you consider that every case of first degree murder that goes up on appeal, first to the Kansas Supreme Court and then, if necessary, to the United State Supreme Court, is at a minimum going to cost $40,000, you begin to see that the money is going to be spent now with the legislative session or it’s going to be spent later on covering the cost associated with the appeals. This is not money that we get out of spending. We just have to decide when we’re going to spend it.

Carla Eckels is Director of Organizational Culture at KMUW. She produces and hosts the R&B and gospel show Soulsations and brings stories of race and culture to The Range with the monthly segment In the Mix. Carla was inducted into The Kansas African American Museum's Trailblazers Hall of Fame in 2020 for her work in broadcast/journalism.