Sentencing Overview and Criminal Justice Reform Issues

The Kansas Sentencing Guidelines Act (KSGA) became effective July 1, 1993. Two grids containing the sentencing range for drug crimes and nondrug crimes were developed for use as a tool in sentencing. [Note: The source for the attached sentencing range grids for drug offenses and nondrug offenses is the Kansas Sentencing Commission Guidelines, Desk Reference Manual, 2020, accessible at https://sentencing.ks.gov/document-center/publications/lists/kansas-sentencing-guildelines-desk-reference-manuals/2020-desk-reference-manual. These sentencing grids are provided at the end of this article.]

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

Off-Grid Crimes

The crimes of capital murder, murder in the first degree, terrorism, illegal use of weapons of mass destruction, and treason are designated as off-grid person crimes. [Note: Statutory references for off-grid crimes are provided in a chart following this article.]

Kansas law provides for the imposition of the death penalty, under certain circumstances, for a conviction of capital murder. Where the death penalty is not imposed, a conviction of capital murder carries a life sentence without possibility of parole.

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).

Persons convicted of premeditated first-degree murder committed on or after July 1, 2014, are eligible for parole after serving 50 years of the life sentence, unless the sentencing judge, after a review of mitigating circumstances, finds substantial and compelling reasons to impose the Hard 25 sentence instead.

Persons convicted of felony murder committed prior to July 1, 2014, are parole eligible after serving 20 years of the life sentence. Persons convicted of felony murder convicted on or after July 1, 2014, are parole eligible after serving 25 years of the life sentence.
Persons convicted of terrorism, illegal use of weapons of mass destruction, or treason are parole eligible after serving 20 years of the life sentence. Also included in the off-grid group are certain sex offenses against victims under the age of 14: aggravated human trafficking, rape, aggravated indecent liberties, aggravated criminal sodomy, commercial sexual exploitation of a child, and sexual exploitation of a child. Offenders sentenced for these off-grid crimes are parole eligible after 25 years in confinement for the first offense, parole eligible after 40 years in confinement for the second offense, or sentenced to life without parole if they have been convicted of two or more of these offenses in the past.

Drug Grid and Nondrug Grid

The drug grid is used for sentencing on drug crimes described in KSA Chapter 21, Article 57.

The nondrug grid is used for sentencing on other felony crimes. In both grids, the criminal history categories make up the horizontal axis, and the crime severity levels make up the vertical axis.

The 2020 Drug Grid can be found on page 6, and the 2020 Nondrug Grid can be found on page 7.

Each grid contains nine criminal history categories. The drug grid contains five severity levels; the nondrug grid contains ten severity levels. A thick, black dispositional line cuts across both grids. Above the dispositional line are unshaded grid boxes, which are designated as presumptive prison sentences. Below the dispositional line are shaded grid boxes, which are designated as presumptive probation sentences. The grids also contain boxes that have a dark shaded color through them, which are referred to as “border boxes.” A border box has a presumptive prison sentence, but the sentencing court may choose to impose an optional nonprison sentence, which will not constitute a departure.

The nondrug grid contains three border boxes, in levels 5-H, 5-I, and 6-G. The drug grid contains seven dark-shaded border boxes, in levels 4-E, 4-F, 4-G, 4-H, 4-I, 5-C, and 5-D. [See KSA 2019 Supp. 21-6804 and KSA 2019 Supp. 21-6805.]

Grid Boxes

Within each grid box are three numbers, which represent months of imprisonment. The three numbers provide the sentencing court with a range for sentencing. The sentencing court has discretion to sentence within the range. The middle number in the grid box is the standard number and is intended to be the appropriate sentence for typical cases. The upper and lower numbers should be used for cases involving aggravating or mitigating factors sufficient to warrant a departure, as explained in the next paragraph. [See KSA 2019 Supp. 21-6804 and KSA 2019 Supp. 21-6805.] The sentencing court may depart upward to increase the length of a sentence up to double the duration within the grid box. The court also may depart downward to lower the duration of a presumptive sentence. [See KSA 2019 Supp. 21-6815, 21-6816, and 21-6817.] The court also may impose a dispositional departure, from prison to probation or from probation to prison (KSA 2019 Supp. 21-6818).

In State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), the predecessor to KSA 21-6815 was found to be “unconstitutional on its face” for the imposition of upward durational departure sentences by a judge and not a jury. In the 2002 Legislative Session, the departure provisions were amended to correct the upward durational departure problem arising from Gould. This change became effective June 6, 2002. The jury now determines all of the aggravating factors that might enhance the maximum sentence, based upon the reasonable doubt standard. The trial court determines if the presentation of evidence regarding the aggravating factors will be presented during the trial of the matter or in a bifurcated jury proceeding following the trial (KSA 2019 Supp. 21-6817).

Probation

Probation is a procedure by which a convicted defendant is released after sentencing, subject to conditions imposed by the court and supervision by the probation service of the court or community corrections, generally without serving a period of imprisonment (although a felony offender may be sentenced to up to 60 days in county jail as a condition of probation). As noted above, a number of boxes on the sentencing grids are designated “presumptive probation,” which means probation will be granted unless a departure sentence is imposed. An underlying prison sentence is still imposed in felony cases where probation is granted, and if the defendant is subsequently found to have violated a condition of probation, probation may be revoked and the defendant required to serve the underlying prison term.

Other possible actions a court may take upon a violation of probation include continuation of probation, modification of probation conditions, or various periods of confinement in a county jail. In some cases, where a defendant has waived the right to a hearing on a probation condition violation, court services or community corrections may impose two- or three-day “quick dip” periods of confinement in a county jail.

Recommended probation terms range from under 12 to 36 months, depending on the severity level of the crime of conviction.

Sentencing Considerations

The sentencing court should consider all available alternatives in determining the appropriate sentence for each offender. The sentencing guidelines seek to establish equity among like offenders in similar case scenarios.

Rehabilitative measures are still an integral part of the corrections process, and criminal justice professionals continue efforts to reestablish offenders within communities. The guidelines do not prohibit sentencing courts from departing from the prescribed sentence in atypical cases. The sentencing court is free to choose an appropriate sentence, or combination of sentences, for each case (KSA 2019 Supp. 21-6604).

Good Time and Program Credits

While incarcerated, offenders may earn (and forfeit) “good time” credits based upon factors like program and work participation, conduct, and the inmate’s willingness to examine and confront past behavioral patterns that resulted in the commission of crimes. Depending on the severity level of the offender’s crime, the offender may earn up to 15 percent or 20 percent of the prison part of the sentence in good time credits. Additionally, offenders serving only a sentence for a nondrug severity level 4 or lower crime or a drug severity level 3 or lower crime may earn up to 120 days of credit that may be earned by inmates “for the successful completion of requirements for a general education diploma, a technical or vocational training program, a substance abuse treatment program or any other program designated by the secretary which has been shown to reduce offender’s risk after release.”

With a few exceptions for certain sex-related offenses, any good time or program credits earned and subtracted from an offender’s prison sentence are not added to the postrelease supervision term (KSA 2019 Supp. 21-6821).

Postrelease Supervision

Once offenders have served the prison portion of a sentence, most must serve a term of postrelease supervision. For certain sex-related offenses, the postrelease supervision term is increased by the amount of any good time or program credits earned and subtracted from the prison portion of the offender’s sentence. For crimes committed on or after July 1, 2012, offenders sentenced for drug severity levels 1-3 or nondrug severity levels 1-4 must serve 36 months of postrelease supervision, those sentenced for drug severity level 4 or nondrug severity levels 5-6 must serve 24 months, and those sentenced for drug severity level 5 or nondrug severity levels 7-10 must serve 12 months. These periods may be reduced based on an offender’s compliance and performance while on postrelease supervision (KSA 2019 Supp. 22-3717(d)(1)).
While on postrelease supervision, an offender must comply with the conditions of postrelease supervision, which include reporting requirements; compliance with laws; restrictions on possession and use of weapons, drugs, and alcohol; employment and education requirements; restrictions on contact with victims or persons involved in illegal activity; and other conditions. A “technical violation” of the conditions of postrelease supervision (such as failure to report) will result in imprisonment for six months, reduced by up to three months based upon the offender’s conduct during the imprisonment. A violation based upon conviction of a new felony or a new misdemeanor will result in a period of confinement as determined by the Prisoner Review Board, up to the remaining balance of the postrelease supervision period (KSA 2019 Supp. 75-5217).

Recent Notable Sentencing Guidelines Legislation

For information on recently enacted sentencing guidelines legislation, please refer to the “Recent Notable Sentencing Guidelines Legislation” memorandum, which will be available on KLRD’s website at http://www.kslegresearch.org/KLRD-web/JudiciaryCorrections&JuvenileJustice.html.

Criminal Justice Reform Issues

During the 2018 and 2019 Legislative Sessions, several bills addressing criminal justice reform issues have been enacted.

Wrongful Conviction Compensation

In 2018, the Legislature passed HB 2579, concerning wrongful conviction compensation. The bill creates a civil cause of action entitling claimants to recover damages from the State for wrongful conviction if the claimants can establish, by a preponderance of the evidence, several elements specified in the bill. Claimants must bring suit within two years of the criminal charges’ dismissal, finding of not guilty on retrial, or pardon of a claimant. Claimants convicted, imprisoned, and released from custody before July 1, 2018, are required to commence an action no later than July 1, 2020.

Claimants entitled to damages will receive $65,000 for each year of imprisonment and not less than $25,000 for each additional year a claimant served on parole or postrelease supervision or was required to register as an offender under the Kansas Offender Registration Act, whichever is greater. The court must order the award be paid as a combination of an initial payment not to exceed $100,000 or 25 percent of the award, whichever is greater, and the remainder as an annuity not to exceed $80,000 per year. (Claimants may designate a beneficiary for the annuity.) Alternatively, the court may order one lump-sum payment if it is in the claimant’s best interests.

The court may also award other non-monetary relief, including counseling, housing assistance, and personal financial literacy assistance. Further, claimants are entitled to reasonable attorney fees and costs incurred in an action brought under the bill of not more than $25,000, unless the court authorizes a greater reasonable total upon a showing of good cause; tuition assistance; and participation in the state health care benefits program.

The bill outlines additional details regarding procedure, claim payment, tuition assistance, and health care benefits. It also provided for a certificate of innocence for the claimant, an expungement order, and destruction of biological samples held by the Kansas Bureau of Investigation.

During the 2019 Legislative Session, the Governor added $50,000 of State General Fund money to the Kansas Board of Regents budget to fund tuition under the bill.

As of November, 2020, the State has agreed to pay compensation to four exonerated persons under the provisions of the bill. The State agreed to pay $1.10 million to Richard Jones, who was incarcerated for nearly 17 years; $1.03 million to Floyd Bledsoe, who was incarcerated for 16 years; $1.5 million to Lamonte McIntyre, who was incarcerated for 23 years, and $238,779 to Bobby Harper who was incarcerated for nearly 2 years.

Kansas Criminal Justice Reform Commission

In 2019, the Legislature passed HB 2290, which, among other provisions, established the Kansas Criminal Justice Reform Commission.

The bill established the 19-member Kansas Criminal Justice Reform Commission (Commission), composed of legislators, Judicial Branch personnel, prosecutors and defense attorneys, and other stakeholders, and required the Commission to analyze, review, and study various criminal justice topics specified by the bill. The Commission submitted an interim report (http://www.kslegresearch.org/KLRD-web/Publications/CommitteeReports/2019CommitteeReports/KS-CriminalJustRefmComm-cr.pdf) to the Legislature in November 2019 and a final report and recommendations (http://www.kslegresearch.org/KLRD-web/Publications/Resources/Documents/Justice-Reform/Report_KCJRC_2021.pdf) in December 2020.

Kansas Closed Case Task Force

HB 2290 also established a 15-member Kansas Closed Case Task Force, composed of legislators, executive branch officials, and stakeholders, and requires the Task Force to develop a plan to ensure uniform statewide policies and procedures related to the handling, reporting, investigation, and sharing of information regarding hits to the state-combined DNA index system (CODIS) related to solved and unsolved cases. The Task Force is required to submit a report by December 1, 2020. The Task Force will expire December 30, 2020.

Additional Information

For more information regarding these and other criminal justice reform efforts in the Kansas government, please refer to the “Recent Legislative and other Governmental Committees and Commissions Studying Criminal Justice and Juvenile Justice Issues in Kansas” memorandum, which can be found at http://www.kslegresearch.org/KLRD-web/JudiciaryCorrections&JuvenileJustice.html.

Off-Grid Crimes
Crime	Reference
Capital Murder	KSA 2019 Supp. 21-5401
Murder in the First Degree	KSA 2019 Supp. 21-5402
Terrorism	KSA 2019 Supp. 21-5421
Illegal Use of Weapons of Mass Destruction	KSA 2019 Supp. 21-5422
Treason	KSA 2019 Supp. 21-5901
Off-Grid Crimes Sentences
Capital Murder-Death Penalty	KSA 2019 Supp. 21-5401 and KSA 2019 Supp. 21-6617
Capital Murder-Life without Parole	KSA 2019 Supp. 21-6620(a)
Premeditated First Degree Murder-After July 1, 2014	KSA 2019 Supp. 21-6620(c)
Terrorism, Illegal Use of Weapons of Mass Destruction, or Treason	KSA 2019 Supp. 22-3717(b)(2)
Aggravated Human Trafficking	KSA 2019 Supp. 21-5426(b)
Rape	KSA 2019 Supp. 21-5503
Aggravated Indecent Liberties	KSA 2019 Supp. 21-5506(b)
Aggravated Criminal Sodomy	KSA 2019 Supp. 21-5504(b)
Commercial Sexual Exploitation of a Child	KSA 2019 Supp. 21-6422
Sexual Exploitation of a Child	KSA 2019 Supp. 21-5510