New Kansas DUI Bill Approved

            As of last week both the Kansas House and Senate unanimously approved a new DUI bill and sent it onto Governor Sam Brownback.  Primarily, the new law adds a restriction of attaching an ignition interlock device to any vehicle driven by a person charged with a DUI.  The bill concentrates on the number of convictions and continuously adds years required with the interlock device restriction for repeat convictions.  Every conviction now includes a "restriction" period, requiring the installation of an interlock device for a certain amount of time.
            Interestingly, individuals convicted for the fifth time will no longer have their driving privileges permanently revoked.  Rather, such individuals will have to permanently drive a vehicle equipped with an interlock device.  According to The Topeka Capital-Journal “[t]he rationale was that an estimated 80 percent of these offenders continue to drive illegally.”  Such devices will be required to be installed and maintained at the owner’s expense.
            The proposed bill also changes the way convictions are reported.  Thus, enforcement officers will be able to better track repeat offenders.  The Topeka-Capital Journal quoted Senator Jeff King saying, “Law enforcement is vigorously behind this bill.”

Reaction to Padilla v. Kentucky

Last blog discussed the Supreme Court holding in Padilla v. Kentucky that defense counsel failed to adequately represent a non-citizen client by not informing the client of deportation possibilities.  Since Padilla, defense attorneys have sought to better train themselves in immigration-related issues and other issues concerning non-citizen clients.  Defense attorneys around the nation have woken up to an understanding that their clients need to be ensured that they are “receiving the fullest and most competent legal advice”  Morales, Francisco. Practicing After Padilla: Where do we go from here? Assistant Federal Public Defender. S Dist. TX. 

Part of the list advocated on the Federal Defender website (www.fed.org) includes defense attorneys obtaining all possible information about their client’s legal status and family’s legal status.  This requirement also speaks to the clients as no matter how many questions an attorney asks his or her client, only the client can provide adequate information.  For a further discussion on this well formulated list and on how to better serve clients facing immigration issues see http://fd.org/odstb_ConstructImmigrationCON.htm.  The list advocated by the Federal Defender website is fairly straight forward and beneficial as a common outline when assisting a client.  The website also includes other beneficial resources to be used by both defense attorneys and their clients. 

Crack Cocaine Sentencing

Last August President Obama signed the Fair Sentencing Act.  The Act reduced the mandatory minimum penalties for crack cocaine trafficking, and eliminated the mandatory minimum sentence for crack cocaine possession.  The Act also raised the quantity required, involved with manufacturing or trafficking crack cocaine, to initiate the minimum imprisonment terms for 5 and 10 years.  Finally, the Act directed the U.S. Sentencing Commission to review and amend federal sentencing guidelines in order to better account for offender culpability regarding aggravating and mitigating circumstances in drug trafficking. 

On April 6^th the Sentencing Commission released its amendments covering the above-mentioned sentencing guidelines.  Now, the guidelines will focus on offender culpability rather than drug quantity.   The change is estimated to reduce sentences of crack cocaine offenders and reduce the cost of incarceration of such offenders. 

Not until June 1 will the Commission consider whether these changes will apply retroactively (past conduct for possible offenses).  The Fair Sentencing Act itself is silent on the retroactivity of its implication, thus implying that the Act only applies to offenses which occurred on or after the date of enactment.  

Brief overview of Jessica's Law in KS and potential consequences

In 2006, then Governor, Kathleen Sebelius, signed into law a sex offender statute known as "Jessica's Law."  Such statutes are popular across the nation and originated in Florida after Jessica Lunsford was raped and murdered by a previously convicted sex offender. 

Jessica's Law applies to a defendant, 18 years and over, who has been convicted of aggravated indecent liberties, or attempt to commit aggravated indecent liberties, with a child under the age of 14.  Such a defendant is mandatorily sentenced to a minimum of 25 years imprisonment.  However, if the defendant is a habitual sex offender, then the mandatory sentence is imprisonment for life, without the possibility of parole. 

And yet, the "mandatory" rule is not so "mandatory," because mitigating circumstances allow a judge to use discretion and reduce the sentence.  Some mitigating circumstances include: a clean slate (no prior criminal activity), defendant was under extreme mental/emotional disturbance or distress due to domination by another person, the age of the defendant at the time of the crime.

Last month, in State v. Floyd, 2011 WL 923936 (Kan. Mar. 18, 2011), the Supreme Court affirmed the district judge’s discretional sentencing of the defendant to 55 months.  The district court departed from the 25 year sentence because of “Floyd’s lack of criminal history; letters written supporting him; Floyd’s mental health problems; the nature of the offense; the recommendations of the parties; and the apparent harm to the victim being, at least it appears to be less than is normally associated with the crime of this nature.”  Id. at 2.

The Sixth Amendment's Confrontation Clause

    The Sixth Amendment's Confrontation Clause protects criminal defendants with the right "o be confronted with the witness against him."  Sixth Amendment.  Typically, this right is recognized with cross-examination of a witness whose testimony is being used in the prosecution of a criminal defendant.  In February the Supreme Court further defined the clause with a 6-2 decision in Michigan v. Bryant, No. 09-150 (U.S. Feb. 28, 2011) (Sotomayor). 

     In Bryant, a wounded victim gave a statement to the police as to who shot him.  This testimony was later used to prosecute the criminal defendant Bryant.  Bryant argued that the testimony was hearsay, and should not have been allowed to enter evidence at trial.  The Supreme Court did not agree.  Justice Sotomayor wrote that distinction can be made between situations of ongoing emergency and investigation.  When the statement is presented with a primary purpose to aid police in an emergency situation the statement is non-testimonial, and thus admissible at trial without the requirement of cross-examining the witness.  This rule is especially significant when, as in Bryant, the victim has died.  However, when testimony is given during police investigation after the emergency has dispensed the primary purpose changes to prosecution of a criminal defendant.  Thus, the Confrontation Clause requires prosecutors to allow the cross-examination of their testimonial witnesses.   

Padilla v. Kentucky: The right of a defendant to be informed by counsel of collateral consequences of a conviction

On March 31, 2010, the United States Supreme Court handed down a 7-2 decision in Padilla v. Kentucky, ruling that a defense lawyer failed to provide his noncitizen client effective assistance of counsel under Strickland v. Washington when he did not warn him that he was almost certain to be deported if he pled guilty. The Court's ruling has opened up the door to an attorney's obligation to inform clients of collateral consequences of a conviction.  These collateral consequences not only include an affirmative duty to give correct advice about possible adverse immigration consequences, but also may include other collateral consequences of a conviction such as sex offender registration and residency requirements, loss of licenses, firearm possession bans, ineligibility for public housing or other benefits, the right to adopt or maintain other family relationships, and the risk of increased penalties in later prosecutions including risks such as Jessica's law enhancements.

A recent publication put out by the Office of Immigration Litigation of the Department of Justice on the immigration consequences of criminal convictions after the recent United States Supreme Court Padilla v. Kentucky decision is of particular importance to criminal defense attorneys.  Please refer to www.justice.gov/civil/oil/OIL_Padilla_Reference_Guide.pdf to review the publication in its entirety.

Juveniles now have a right to a jury trial

The court in In re L.M. reversed a 24-year old precedent holding that juveniles are not entitled to a jury trial. The Kansas Supreme Court recognized that changes to the juvenile justice system have eroded the characteristics that traditionally distinguished the juvenile code from the adult criminal system. Because the Kansas juvenile justice system has become more akin to an adult criminal prosecution, juveniles now have a constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the U.S. Constitution.