Kansas Sentencing Guidelines

JurisdictionKansas,United States
CitationVol. 86 No. 7 Pg. 22
Publication year2017
Kansas Sentencing Guidelines
86 J. Kan. Bar Assn 7, 22 (2011)
Kansas Bar Journal
August, 2017

July, 2017

Terry Savely, J.

In a wide-reaching shift in criminal law, the 1992 Kansas Legislature followed the lead of the federal government and various states[1] by enacting a determinate sentencing scheme: the Kansas Sentencing Guidelines Act (KSGA or Act), K.S.A. 21-4701 et seq.[2] The KSGA significantly limited the amount of discretion trial court judges had previously possessed when it came to sentencing convicted felons.[3] Over the last 25 years, statutory amendments to the KSGA and the criminal code, as well as judicial opinions from both federal and state courts, have resulted in a convoluted bramble from what started as a comparatively straight-forward sentencing process. After a quarter-century of operation, with these innumerable and nearly annual changes, one might question whether the KSGA has managed to carry out its original goals.

In evaluating the answer to that question, this article will examine the events which led to the development and modification of the KSGA over the last 25 years. First, it will provide a brief overview of the framework of the original KSGA. Second, it will discuss the general nature of statutory adjustments made since its enactment in the legislature's efforts to address public safety issues, constituent concerns, and budgetary constraints. Next, 'the article will review the impact of federal and state judicial opinions that have sent significant ripples throughout the sentencing process under KSGA. Finally, I will discuss whether the consistently amended KSGA has achieved the goals set forth when the KSGA was enacted.

The Historical Background

In the late 1980's, the State of Kansas was faced with a crisis of high prison populations resulting in a federal lawsuit challenging prison overcrowding.[4] As a result of these issues, the Kansas Legislature created the Kansas Sentencing Commission (Commission) in 1989.[5] The legislature directed the Commission to propose criminal sentencing dispositions by suggesting appropriate sentencing ranges for felony convictions as well as recommending standards for delineating prison and non-prison placements. The Commission was directed to focus prison resources on violent offenders, to minimize sentencing disparity—especially those disparities based on race and geography—and to make recommendations as to the future role of the Kansas Parole Board.[6]

Two years later, the Commission recommended that the Legislature adopt grid-based sentencing guidelines, noting the federal government as well as several other states—specifically Minnesota, Washington and California—had already established such sentencing designs. In addition, nearly 50 percent of the remaining states were in the process of evaluating this type of sentencing structure.[7] The proposed guidelines constituted a significant paradigm-shift away from an indeterminate sentencing scheme with its purported rehabilitative focus; that scheme was based on the premise that indeterminate sentences would permit the parole board to make release decisions on the inmate's conduct during incarceration, thereby encourage inmates to participate in rehabilitation and training programs and also to engage in positive conduct while in prison.[8]

The Commission's proposed guidelines intended to emphasize public safety while decreasing racial and geographic disparity in sentencing. The Commission's report contained a number of comparisons consistently showing statistically significant differences at all stages of the existing criminal process based upon race and geographical factors.[9] The proposal was also designed to make sentencing practices understandable for the public and defendants.[10] Finally, the determinative nature of the proposed sentences would allow more predictability, permitting the Commission and the Department of Corrections (DOC) to more accurately estimate future inmate population to guide DOC facility planning and to enable sensible sentencing adjustments.

After the Commission's recommendations were presented, the Kansas Legislature adopted the KSGA in 1992.[11] The Act was designed to achieve a nearly wholesale revision of criminal sentencing in Kansas. First, the KSGA adopted two-dimensional grids creating presumptive sentences for most felony crimes in Kansas.[12] Second, it rewrote the substantive criminal statutes, designating each crime as a person or nonperson crime and setting the severity level of most felony offenses.[13] The legislature also rewrote probation and post-incarceration statutes to comport with the guidelines' new focus: requiring a felon to serve all or most of the determinate sentence imposed.[14] Along with a few other modifications, the legislature limited the prior indeterminate sentencing statutes to crimes committed before July 1, 1993. The new sentencing standards did not take effect until a year after the enactment,[15] giving the court system and correctional officers time to adopt procedures implementing the Act.

The Original Structure of the KSGA

As broad as the KSGA coverage extends, not every crime falls within its scope. The most serious crimes which trigger life imprisonment sentences—i.e., capital murder, first-degree murder,[16] terrorism,[17] illegal use of weapons of mass destruction,[18] and Jessica's Law sex crimes[19] —are categorized as "of-grid" crimes. These offenses generally fall outside the terms of the KSGA statutes and will not be discussed in detail here. Similarly, lower level crimes such as misdemeanors and statutorily-independent crimes, such as driving under the influence of alcohol and/or drugs (DUI), have their own separate statutory sentencing schemes.[20] Consequently, these crimes are classified as "non-grid" crimes.[21] Again, convictions of these offenses do not fall within the scope of the KSGA and its various sentencing rules.

As to all "grid" felonies covered by the KSGA, the original structure of the guidelines strove to meet the Commission's and legislature's goals of predictability and fairness[22] by establishing two key factors for a judge to use when determining a convicted defendant's sentence. The first factor is the severity level of the crime(s) of which the defendant was convicted. The second factor is the individual defendant's criminal history score. Using two-dimensional grids, one for drug crimes[23] and one for non-drug crimes,[24] the intersection of the crime severity level and the defendant's criminal history score on the grids gave the sentencing judge three presumed sentences which she could impose. These presumptive sentences allowed the judge some room to consider whether an aggravated, mitigated, or standard sentence was appropriate based on the facts of the individual case.[25]

In addition, both the drug and non-drug grids were divided to reflect which grid boxes carried presumptive prison versus non-prison sentences.[26] The presumption for non-prison sentences in certain cases was an attempt to limit prison space for those convicted of the most serious and violent crimes and/or for serious repeat offenders. The original KSGA divided non-drug crimes into ranges from a severity level 1 (the most serious offenses) to severity level 10 (the least serious felonies). The non-drug grid also originally contained three "border boxes" for convictions for some severity level 5 and 6 crimes; for convictions falling within these boxes, the sentencing judge had the option to impose a non-prison sentence if she believed such a sentence would promote public safety and/or there was an appropriate treatment program to aid the defendant.[27]

The original version of the drug grid carried only 4 severity levels (levels 1 through 4). A level four drug offense included a first-time offense of most narcotics.[28] Possession of opiates and narcotics after two prior convictions under the same or similar statute became a severity level one drug felony.[29] There were no border boxes on the original non-drug grid.[30]

Based upon the Act, the determination of the presumptive range for sentencing was nearly a ministerial act. For example, a defendant convicted of the crime of aggravated assault occurring on July 3, 1993, would be guilty of a severity level 7 person felony.[31] Assuming this defendant had two prior convictions for the same offense (i.e., two person felony convictions), his criminal history score would be "B."[32] Based upon the non-drug sentencing grid in effect at the time of the crime, the sentencing judge could impose a presumptive sentence of 27 months (mitigated), 29 months (standard), or 31 months (aggravated) incarceration.[33]

The KSGA gave judges the ability to grant departure sentences altering either the length of the sentence (durational departures) or altering the prison/non-prison assignment for the sentence imposed (dispositional departures).[34] To impose a departure sentence, the judge was required to articulate the aggravated or mitigating factors[35] that provided "substantial and compelling reasons"[36] to support a departure from the presumed sentencing range. If the judge relied on factors not in the statute, those factors had to be consistent with the principles of the sentencing guidelines: sanctions should not be related to socioeconomic factors, race, or geographic location.[37]

The guidelines also established rules for sentencing in multiple conviction cases. Under the KSGA, when a defendant was convicted of multiple counts in a single charging document or multiple charges in officially consolidated charging documents,[38] the trial judge had discretion to impose the sentences for each of those counts to operate either consecutively or concurrently.[39] At sentencing, the judge would determine which of the convicted charges was the most severe and find the appropriate grid box using the defendant's full criminal...

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