Excessive Sentencing Project - Kansas

Policies and rulings on lengthy imprisonment terms in Kansas.

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  • Kansas eliminated discretionary parole for most offenses in 1993, but this does not apply retroactively .
  • murder and intentional second degree murder.) 
  • Kansas has mandatory LWOP, but does not permit JLWOP: Kan. Stat. Ann. § 21-4622 (2007) prohibits LWOP as a sentence for capital murder or first-degree murder where defendant is younger than 18 years. 
  • Juveniles 10 years-old or older may be transferred to adult court.
State Constitution

Kan. Const. B. of R. § 9

§ 9. Bail; fines; cruel and unusual punishment. All persons shall be bailable by sufficient sureties except for capital offenses, where proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.

NOTE: Section 9 of the Kansas Constitution is generally interpreted the same as the Eighth Amendment.

Sentencing Statutes
  • Sentencing Guidelines System – Kansas has a discretionary guidelines system, available at http://www.kansas.gov/ksc/2011desk/2011_DRM_Text.pdf.  A sentencing judge may only depart from the guidelines if she provides, on the record, substantial and compelling reasons for the departure.  The state or the defendant may appeal any departure.
  • Habitual Offender Statute – Kansas no longer has a general habitual offender statute. However, Kansas has a habitual sex offender statute, K.S.A. § 21-6626 (2011): Aggravated habitual sex offender; sentence to imprisonment for life without parole. 
Case Law

General  

A statute is presumed constitutional, and should be construed as constitutionally valid if reasonably possible. State v. Cameron, 281 P.3d 143, 147 (Kan. 2012); State v. Ross, 2012 Kan. LEXIS 459, 4-5 (Kan. Aug. 31, 2012); State v. Laturner, 289 Kan. 727, 735 (Kan. 2009); State v. Baber, 44 Kan. App. 2d 748, 749 (Kan. Ct. App. 2010).

While constitutional issues cannot generally be raised for the first time on appeal, three exceptions exist: "(1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason." Ortega-Cadelan, 287 Kan. 157, 159 (Kan. 2008); State v. Gomez, 290 Kan. 858, 862 (Kan. 2010); State v. Thomas, 288 Kan. 157, 160 (Kan. 2009).

While the primary duty for adequate fact-finding lies with the district judge, an offender “who wishes to appeal on the basis of a constitutional challenge to a sentencing statute must ensure the findings and conclusions by the district judge are sufficient to support appellate argument, by filing of a motion invoking the judge's duty under Rule 165, if necessary.” State v. Seward, 289 Kan. 715, 721 (Kan. 2009); State v. Berriozabal, 291 Kan. 568, 591-592 (Kan. 2010).

State Constitution & Proportionality 

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Despite slight textual differences, Section 9 of the Kansas Constitution and the Eighth Amendment of the United States Constitution are substantively equivalent. State v. Proctor, 280 P.3d 839, 843-844 (Kan. Ct. App. 2012). Nevertheless, the Kansas Supreme Court reserves the power to reexamine state constitutional protections. Id.; State v. Scott, 286 Kan. 54, 93-94 (Kan. 2008); Van Dyke v. State, 31 Kan. App. 2d 668, 677 (Kan. Ct. App. 2003).

"Under § 9 of the Kansas Constitution Bill of Rights, a punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” State v. Gomez, 290 Kan. 858, Syl. ¶ 9 (Kan. 2010); see State v. Berriozabal, 291 Kan. 568, 590-591 (Kan. 2010).

When determining whether a sentence is cruel and unusual under the Kansas Constitution, the district court must make legal and factual determinations. On appeal, the appellate court applies a bifurcated standard of review, first reviewing (but not reweighing) all of the evidence to determine if it supports the district court’s factual findings, and then reviewing the district court’s legal findings de novo.  State v. Ross, 2012 Kan. LEXIS 459, 4-5 (Kan. Aug. 31, 2012); State v. Cameron, 281 P.3d 143 (Kan. 2012).

The Kansas Supreme Court has adopted a three-factor test to determine if a sentence is cruel and unusual under the Kansas Constitution: "(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;"(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and"(3) A comparison of the penalty with punishments in other jurisdictions for the same offense." State v. Ross, 2012 Kan. LEXIS 459, 4-5 (Kan. Aug. 31, 2012) (quoting State v. Freeman, 223 Kan. 362, 367 (Kan. 1978)).

None of the three factors in the three-factor Freeman test is controlling: consideration should be given to each factor, although “one consideration may weigh so heavily that it directs the final conclusion.” State v. Mossman, 281 P.3d 153, 159-160 (Kan. 2012) (quoting Ortega-Cadelan, 287 Kan. 157, 161 (Kan. 2008)); see State v. Woodard, 280 P.3d 203 (Kan. 2012).

This Freeman test does not apply where the method of punishment is challenged as cruel and unusual, rather than the length of a sentence. State v. Mossman, 281 P.3d 153, 159-160 (Kan. 2012); State v. Baber, 44 Kan. App. 2d 748, 750 (Kan. Ct. App. 2010).

While postrelease supervision does limit an offender’s liberty and privacy, it is a less severe penalty than prison time, and should be recognized as such in a proportionality review. SeeState v. Mossman, 281 P.3d 153, 162 (Kan. 2012). Furthermore, lifetime postrelease supervision is not per se unconstitutional. See State v. Cameron, 281 P.3d 143 (Kan. 2012).

Despite a retreat by the United States Supreme Court, Kansas courts have consistently allowed proportionality challenges to term-of-years sentences under Section 9 of the Kansas Constitution. State v. Gomez, 290 Kan. 858, 867 (Kan. 2010). The Kansas Supreme court continues to follow the three-factor Freeman test. Id.; State v. McDaniel & Owens, 228 Kan. 172, 184-85 (Kan. 1980).

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The following cases mention both the Eighth Amendment and Section 9 of the Kansas Constitution, but provided no significant separate analysis of Section 9:

  • In the Interest of A.R.M., 2007 Kan. App. Unpub. LEXIS 797 (Kan. Ct. App. Mar. 30, 2007) –  
  • McComb v. State, 32 Kan. App. 2d 1037 (Kan. Ct. App. 2004) –

Leading Court Discussions of Graham and Miller 

State v. Gomez, 290 Kan. 858, 235 P.3d 1203 (July, 2010 (Defendant’s failure to preserve for review on direct appeal claim that sentence was cruel and unusual under Eighth Amendment preclude Supreme Court’s review on this issue because it is not purely a question of law: not retroactive application on direct appeal?) 

State v. Mossman, 294 Kan. 901, 281 P.3d 153 (July 27, 2012) (Two types of challenge under Eighth Amendment; Kansas remain open on this issue whether Graham analysis may be extended to cases other than death penalty and juveniles sentenced to LWOP, and whether Graham analysis should apply depends on the nature of the offense or class of offender; life time postrelease supervision is not disproportionate under Eighth Amendment.) 

State v. Cameron, 294 Kan. 884, 281 P.3d 143 (July 27, 2012) (defendant can raise a categorical proportionality challenge under Eighth Amendment for his lifetime postrelease supervision but such supervision for defendant convicted of sex exploitation of child is not excessive.) 

State v. Cervantes-Puentes, 297 Kan. 560, 303 P.3d 258 (June 14, 2013) (categorical challenge under Eighth Amendment can be raised on appeal because it is just a question of law; defendant must demonstrate the existence of a valid categorical argument under Graham, which cannot be a virtually a case specific challenge.) 

State v. Seward, 296 Kan. 979, 297 P.3d 272 (March 22, 2013) (hard 25 years LWOP is not disproportionate to offense of rape and aggregate criminal sodomy) 

State v. Florentin, 297 Kan. 594, 303 P.3d 263 (June 14, 2013) (categorical challenge under Eighth Amendment can be raised on appeal because it is just a question of law.) 

State v. Ruggles, 297 Kan. 675, 304 P.3d 338 (June 21, 2013) (A categorical analysis under Eighth Amendment is a question of law so can be raised for the first time on appeal; Eighth Amendment does not categorically prohibit a hard 25 life sentence from being imposed on an adult who committed sex abuse to his stepdaughters) 

State v. Williams, 298 Kan. 1075, 1086-87, 319 P.3d 528 (March 7, 2014) (defendant can raise a categorical proportionality challenge under Eighth Amendment for his lifetime postrelease supervision but such supervision for defendant convicted of sex exploitation of child is not excessive. “First time offender” is a proper category).   

State v. Brown, 2014 WL 3973505 (Kan. Aug. 15, 2014) (A hard 20 LWOP for juvenile does not violate Miller and Graham