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Attention Jessica's Law attorneys

Recently, the ADO has been trying to get the KSC to consider the issue of whether a Jessica's law sentence is a cruel or unusual punishment under Section 9 of the Kansas Bill of Rights (and/or the Eighth Amendment of the US Constitution). The argument is based on State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978) and State v. McDaniel, 228 Kan. 172, 612 P.2d 1231 (1980) ("Section 9 of the Kansas Bill of Rights may be invoked against an excessive or disproportionate sentence. The nature of a sentence as cruel or unusual encompasses duration.").

A life sentence under Jessica's Law may be disproportionate under the second prong of the Freeman analysis because the court is supposed to determine whether more serious crimes are punished less severly. For example, a Jessica's Law defendant could get a life sentence for fondling or touching a 13-year-old, while the same defendant could get about 10 years for intentionally murdering the same 13-year-old (second-degree intentional murder, criminal history I). The ADO's argument is that this is disproportionate punishment and unconstitutional.

The KSC has not yet reached this issue because it was not raised in the district court. The court has pointed to the fact that the first prong of the Freeman analysis is based on the facts of each case (it is based upon the nature of the offense and the character of the offender).

In short, if you have a Jessica's Law case that proceeds to sentencing, you should file a motion and have a hearing on whether a life sentence would be disproportionate in your client's case (especially if the client's criminal history is low). If you need the relevant law to put in your motion, contact me at the ADO.

Full post as published by Kansas Defenders on February 02, 2009 (boomark / email).