Paul D. Cramm

Kansas Supreme Court to hear ‘Hard 50’ cases

TOPEKA – This week, lawyers will go before the Kansas Supreme Court to discuss cases linked with the state’s “Hard 50” prison sentence and whether alteration to the law which was made in September by legislators can be applied retroactively.

During a two-day special session, the law was rewritten by legislators in response to a June U.S. Supreme Court ruling in which imposing of mandatory minimum sentences in criminal cases is also involved. The justices said that juries must pay attention to the aggravating and mitigating situations when the sentences are being determined. Prior to the alteration made in the law, Kansas judges made the determination based on circumstances of the crime presented at trial like whether the offender tortured his/her victim or shot into a crowd.

The case of Matthew Astorga was sent back to Kansas by the justices. He was convicted of premeditated first-degree murder in the shooting of another man in Leavenworth. The incident happened in 2008, the day after Christmas. On Monday, the case goes before the Kansas Supreme.

Astorga’s defense lawyer, Randall Hodgkinson, wrote in his brief ahead of the hearing that applying the new sentencing law will violate the U.S. Constitution due to the reason that it will make it a new crime of aggravated first-degree murder and a harsher punishment also, that didn’t exist when the murder happened. He wrote, “It makes no difference whether (the legislative change) is labeled procedural or substantive, retrospective application would be prohibited”. He said that the only recourse was for justices to reverse Astorga’s sentence and give him no more than a mandatory minimum sentence of twenty five years in jail.

On Friday, Attorney General Derek Schmidt said that he was confident the alterations made in the law were solid and able to withstand judicial scrutiny. “We’ll just handle these as we would any appeal. We think the changes made to the statute to conform with the Supreme Court’s June ruling are procedural and apply to pending cases”.

Deputy solicitor general for Kansas, Kristafer Ailslieger said in a brief that Astorga could be sentenced to a minimum of fifty years in jail due to that the trial judge relied on Astorga’s previous criminal conviction in deciding the harsher sentence. He wrote, “A ‘Hard 50’ was a possible sentence when Astorga committed the crime. The amendments do not alter that. They merely alter the procedure to determine if the sentence should be imposed”.

On Tuesday, Two other “Hard 50” cases will be heard which are the cases of Juan Lopez and Eldier Molina for their 2009 convictions. The cases are related to the shooting deaths of 2 brothers in Wyandotte County.

In 1999, Kansas adopted the “Hard 50” changing a mandatory forty year sentence that had been in place since 1990. In 1994, Kansas reinstated the death penalty.

In Kansas, the only penalties that are harsher 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. If the “Hard 50” sentencing law cannot be applied retroactively, Astorga and others with the “Hard 50” sentence will stay in jail for a minimum of twenty five years before being eligible for parole. They can also be ordered by the judge to face new sentencing or a new trial.

The Kansas Supreme Court heard the “Hard 50” appeal of Dustin B. Hilt in October. In 2009, Dustin was convicted of first-degree murder of a 19-year-old woman. Justices gave no idea how quickly they will rule in the Hilt case.

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