Kan. justices seek more briefs in 'Hard 50'

1/8/2014

TOPEKA (AP) — Kansas Supreme Court justices on Tuesday asked attorneys for the state and four inmates to file additional legal briefs regarding the state's "Hard 50" prison sentence.

The state has made changes to its "Hard 50" law since a U.S. Supreme Court ruling last June in which it said that juries, not judges, must determine whether to impose mandatory minimum sentences. Defendants who receive the "Hard 50" are sentenced to life in prison and aren't eligible for parole for at least 50 years. Previously, Kansas had judges hand down such sentences.

The Kansas Supreme Court is looking at four cases decided after lawmakers amended the state law. Each case involves a defendant convicted of premeditated first-degree murder.

Legislators met in September in special session to make it so that juries, instead of judges, determine "Hard 50" sentences. The new law specifically says it would apply to cases still at trial or on appeal.

Tuesday's two-page order from the Kansas Supreme Court, signed by Chief Justice Lawton Nuss, asks attorneys to address whether failure to have a jury decide the sentence amounted to a harmless error at trial. Among the nuances to consider is whether the evidence would have been sufficient to support the harsher sentence beyond a reasonable doubt.

If the errors aren't harmless, the justices are asking whether the appropriate recourse is the send the cases back to district court for resentencing.

The order applies to the appeals of defendants Matthew Astorga, Dustin Hilt, Jonell Lloyd and Eldier Molina. Astorga's case was one that was sent back to Kansas by the U.S. Supreme Court following its June ruling.

Attorneys for the state have argued that the changes made by legislators in September were procedural in nature and that the sentences should stand, or at the least, be sent back for a jury to consider, with the "Hard 50" still an option.

Defense attorneys argue that changes made to the law amount to a new crime and punishment that didn't exist until September and thus couldn't be applied to cases that were decided as much as a decade ago. If the justices agree with defense attorneys that the changes violate the U.S. Constitution, the sentences would be set aside and the penalty would revert to a mandatory 25-year sentence before parole consideration.

In Kansas, the only penalties tougher than the "Hard 50" are capital punishment and life without parole, the alternative to death in a capital case and a sentence also possible for some habitual sex offenders.

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