Weighing the Case for a Special Session

by Melissa Brunner

Gov. Sam Brownback gave the go-ahead Friday to a special session. Just before he made the announcement, I was compiling these thoughts on a decision to that seemed to pit money against emotion, with a public safety twist.

I might not have thought of it in those terms, except, when I asked on Facebook Thursday if a special session to fix the law allowing the state's toughest sentence for killers - shy of death - was worth it, several people said no.

Here's what happened: Attorney General Derek Schmidt asked the Governor to call lawmakers into special session to address a new-found flaw in the state's Hard 50 sentencing statute. He says the law was formulated under case law that allowed a judge to weigh aggravating factors in determining mandatory minimum sentences. But, in June, the U.S. Supreme Court issued a ruling that said juries must make that determination.

As Shawnee County DA Chad Taylor described it, the goalposts have been moved after the game ended and the Court is changing the scorebook. Both he and Schmidt say the cases in which the Hard 50 is used are the worst of the worst for which the death penalty does not apply, the most heinous of crimes they see.

Schmidt says lawmakers could make the fix in a couple days. But here's the thing - it would cost money. A special session would cost $35-40,000 a day, depending on what staff and committees are required. Even a two-day meeting, them could carry an $80,000 price tag. Plus, the wild card - once they're in session, lawmakers can consider any issue they want, which opens the possibility for someone to hijack this single issue and use it to focus on something else entirely, thereby prolonging the proceedings. Special sessions aren't taken lightly. The legislature last had one in 2005 and it was following an order on school funding from the Kansas Supreme Court.

Is it worth it this time? It depends on your perspective. Prosecutors could operate under the assumption the sentences would be upheld and let it shake out on appeal. The problem, Schmidt says, is that crimes occurring from now until the time lawmakers get to the fix when they return in January likely wouldn't have the Hard 50 option. The longer we wait, he says, the more cases that become uncertain. Taylor also points out that prosecutors may use different approaches in the interim for trying to make the sentences stick, raising a host of inconsistencies for appeals courts to consider, which could be an expense in itself for the courts in sorting it all out.

Then there is the human factor. The families of murder victims find themselves thrown into the system through no fault of their own. How many years gives them adequate justice? You might think 25 years before getting that first parole eligibility notification, as opposed to 50,  is plenty of time, especially since, hey - what are the odds they'll actually get out? In that case, you'd rather put the money in the bank.

On the other hand, maybe you don't want to take a chance an inmate will get out on that first, earlier try. Maybe you don't want victims to have to relive their loss and fears any sooner or more often than they must. Several prosecutors used the example of a five-year old who sees his mother killed - would you rather tell that child he won't have to deal with the legal issues again until he's 55-years old or 30? Is $80,000 a fair price to pay for peace of mind for those who did not ask to be out in this position?  I will not judge what is right or wrong in this situation, but I can tell you that, as a survivor of violent crime, I have received parole hearing notifications and it does bring back the stress and memories of what happened.

Some will argue the situation is being used to contrive a threat to public safety. If the system works the way it should, they say, killers will be kept behind bars through the parole board process and "life" will mean life in prison. But that's not always the case and that, in part, is why the Attorney General is calling for the special session. The balance, he said, should tip to the side of public safety.

Plus, people are involved - and not just judges and lawyers and lawmakers and murder convicts. Caught in the middle are victims' families and, for them, an argument over dollars and cents doesn't help them make sense of what happened.


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