Brief⁽¹⁾

S.B. 131 makes major revisions in the Kansas sentencing guidelines law. The bill increases the length of sentences for certain crimes and for severity level III crimes on the nondrug sentencing grid; reduces the length of sentences for certain crimes and for severity levels I and II crimes on the nondrug grid; and makes other changes.

Provisions which increase the length of sentence include the following.

• The length of the life sentence for crimes of felony murder and treason are increased from 15 to 20 years before parole eligibility.



• The sentence lengths of all criminal history categories on the nondrug severity level III are increased by 20 percent. This recommendation would result in the range of sentences being increased from the current minimum of 3.8 years to 4.6 years and the current maximum from 17.2 years to 20.6 years. The mean sentence for that severity level increases from 6.1 years to 7.3 years. Offenses classified as severity level III crimes include kidnaping, aggravated robbery, voluntary manslaughter, and aggravated indecent liberties with a child.



• Intentional second degree murder is reclassified from an off-grid offense to a severity level I offense. Under current law, an offender convicted of intentional second degree murder is parole eligible, regardless of criminal history, at ten years. Severity level I provides a sentence range of 15.3 years to 68 years, depending on criminal history classification. The mean sentence of this severity level is 24.3 years. (Even though 15 percent good-time credits are available, the offender would still serve as much and, in most cases more time, than under the current off-grid classification.)



• A new presumptive prison sentence is added for a conviction of the crime of residential burglary, when the offender has a prior conviction for either a residential burglary or a nonresidential burglary.



• The penalty for the crime of aggravated escape from custody is raised from a severity level 6 person felony to a severity level 5 person felony, when the offender is in the custody of the Secretary of Corrections and escapes from a state-operated correctional facility. This proposal differentiates the degree of seriousness in escaping from a community corrections facility versus a correctional institution.

The following provisions of S.B. 131 reduce the length of sentence as noted below.

• All criminal history categories on the nondrug grid severity levels I and II are reduced by 20 percent. This proposal would result in the minimum sentence for severity level I be changed from 15.3 yeas to 12.2 years and the maximum sentence from 68 years to 54.4 years, with the mean adjusted from 24.3 years to 19.5 years. Under current law, the sentence for an off-grid offense is actually shorter than for a severity level I offense.



• Felony driving with a suspended license for third and subsequent offenses and the habitual violator statute, both currently severity level 9, nonperson felonies, are reclassified as Class A, nonperson misdemeanors.



• The crime of criminal deprivation of property--a motor vehicle (joy riding) is reclassified from a nongrid felony to a class A, nonperson misdemeanor.

• An amendment to K.S.A. 21-3520, unlawful sexual relations, creates a new sentencing structure for what is commonly referred to as the "Romeo and Juliet" situations. The new subsection makes it a severity level VIII, person felony when the offender is less than three years older than the victim and the victim is greater than 14 years of age but less than 16 years of age and the sexual activity is voluntary. The crimes of indecent liberties with a child (level 5), aggravated indecent liberties (level 3 or level 4), criminal sodomy (level 3), indecent solicitation (level 7), and the sex offender registration law are all amended to reflect this change.



• The bill also designates the location of incarceration for a third or subsequent felony domestic battery conviction, a nongrid felony, to be at the local level (county jail) to provide consistency with other nongrid felonies, such as DUI. Nongrid felonies are not assigned a severity level nor a determinate period of incarceration.

Other changes contained in S.B. 131 include the following.

• The bill allows the offender to waive his/her right to a parole revocation hearing and begin to immediately serve the appropriate period of incarceration. Under current law, when an offender violates the conditions of postrelease supervision, the offender must wait until the revocation hearing before the Parole Board occurs, to start serving the appropriate sentence for the violation.



• The bill also makes misdemeanor pre-sentence investigation reports a part of the official court record and accessible to the public in the same manner as current law allows for felony pre-sentence investigation reports.



• Finally, the bill requires that the judge shall impose consecutive sentences on a defendant upon a conviction when an offender commits a new felony while released on felony bond. The imposition of a prison sentence for the new crime does not constitute a departure.

The Senate Committee deleted a proposed Hard 50 provision that would have replaced the current Hard 40 law.

The Senate Committee of the Whole amendment was technical.

The House Committee amended the bill to do the following:

• The bill reinstates the mandatory Hard 50 sentence for the crimes of capital murder, when the death sentence is not imposed, or premeditated murder in the first degree committed on or after July 1, 1999. An individual sentenced to the Hard 50 would not be eligible for parole before 50 years and would not be eligible for good time credits.



• The bill increases the age span, from three to four years, between a child of 14 but less than 16 and an offender who is more than four years older in order to constitute certain sex crimes such as indecent liberties with a child, aggravated indecent liberties with a child, criminal sodomy, indecent solicitation of a child, and unlawful sexual relations. The offender must be more than four years older than the child before the behavior can be criminal. This provision would decriminalize certain Romeo and Juliet situations.



• To come under the definition of sex offender and thus be required to register the offender must be 19 years of age and four or more years older than the victim who must be less than 18 years of age. A retroactive provision in the bill will have the impact of reversing the effect of a recent Supreme Court case, State v. Shelling, No. 80,308. The procedure involved is contained in the bill.



• The bill amends the crime of exposing another to a life-threatening communicable disease by raising the penalty from a class A person misdemeanor to a security level 7 person felony.



• The statute regarding guilt without criminal intent is amended to include violations of K.S.A. 1998 Supp. 8-1567, driving under the influence of alcohol or drugs and K.S.A. 1998 Supp. 8-1567a, driving under influence of alcohol or drugs by persons under 21 years of age.

Background

The bill was requested by the Kansas Sentencing Commission which conducted a comprehensive review of the Kansas Sentencing laws last fall. Representatives of the Commission said the changes were needed to bring a sense of proportionality for all felony sentences. During the past five years numerous changes have been made to the sentencing guidelines in a fragmented manner.

A representative of the Governor's Office generally supported the bill, but opposed the 20 percent reduction in the levels I and II nondrug grid.

The Attorney General supported the penalty enhancements contained in the bill but opposed all provisions in the bill which would result in reduced sentences.

The Kansas County and District Attorneys Association generally supported the bill but opposed the Romeo and Juliet provision, raised concerns about treating serious traffic offenders differently than DUIs, and raised other concerns.

The Secretary of Corrections supported S.B. 131 but opposed the 20 percent reduction in sentences for levels I and II nondrug grid offenders.

The Kansas Parole Board favored the waiver provision of the final revocation.

The Kansas Peace Officers Association opposed the reduction in penalties for the Romeo and Juliet offender.

The Reno County Attorney opposed the deletion of the crime of felony offense for driving while suspended and driving as an habitual violator. He also opposed the so-called Romeo and Juliet provision.

The fiscal note estimates the bill will have a net $118,800 increase in State General Fund expenditures for FY 2000 as a result of increased costs for the State Board of Indigents Defense Services; and a one-time net expenditure of $24,427 by the Kansas Sentencing Commission. The Sentencing Commission also estimates the bill would increase prison capacity needs by 113 beds. Further analysis is needed to determine the timing and custody level of the 113 beds estimated to be needed.

1. *Supplemental notes are prepared by the Legislative Research Department and do not express legislative intent. The supplemental note and fiscal note for this bill may be accessed on the Internet at http://www.ink.org/public/legislative/bill_search.html.