February 6th. The Kansas Supreme Court has issued its opinion in State v. Gracey (No. 99,310) a “Jessica’s Law” sentencing appeal. In a unanimous opinion, written by Justice Rosen, the Court affirmed that Kendrick Gracey could be sentenced under “Jessica’s Law”, but vacated the sentence pronounced and remanded the case for resentencing. Note: this case was argued while Chief Justice McFarland was still a member of the court. She was recused from the case and her place taken by Judge Melissa Standridge of the Court of Appeals.
Kendrick Gracey, 21, fondled a 12-year old girl while she was sleeping on a living room couch. Gracey claimed afterwards that he believed the girl was 16. Sex crimes committed by over 18 year olds against under 14 year olds trigger “Jessica’s Law” which results in a mandatory minimum sentence of life imprisonment without the possibility of parole for 25 years. Gracey pled guilty. Mandatory minimums are not as minimum as people think, however. Even “Jessica’s Law” allows Judges to grant a downward departure in sentencing, and in this case the Judge did that, sentencing Gracey to 55 months. The Judge ruled that he could not grant probation as the law stated that the downward departure sentence must follow the sentencing guidelines which would result in a prison sentence in this case.
Gracey’s appeal initially challenges his sentence being pronounced under “Jessica’s Law”. He notes the importance of the age factor in the law and alleges that his charging instrument did not specify that he was over 18, although he did not object at the time of the trial. Such appeals have a fairly high bar to overcome, since they must show that as a result of any defect in the charge prejudiced the defendants defense. In this case the Court rejects this argument out of hand as the charging instrument included Gracey’s date of birth and stated the age requirement in the law.
Gracey succeeded on his second argument. At sentencing he had sought probation but the Trial Court had ruled that under the sentencing guidelines it had no choice (having found sufficient mitigating circumstances to depart from the mandatory minimum sentence) but to follow the sentencing guidelines which were the alternative approach prescribed in the statute. The Trial Court held that it could issue a downward departure in duration but not in disposition (i.e. Gracey had to go to gaol). Gracey argues that the statute defines a departure as a sentence “inconsistent with the presumptive sentence”, which therefore would include the option of probation. The Kansas Supreme Court agreed with Gracey on this point. It held that once the Judge had found sufficient mitigating circumstances to depart from the “Jessica’s Law” sentence, he could have then found those same circumstances sufficient for a further departure from the sentencing guidelines (as laid out therein) to probation. It did not hold that the 55 month sentence was an illegal sentence. While Gracey’s sentence is vacated and the case remanded for another go, the District Court is only instructed to determine whether probation is appropriate. Should it determine otherwise it could still choose prison.
The Court noted that the law at issue was amended in 2008. Future convictions under this law cannot, even with mitigating circumstances, receive probation. Gracey was convicted before this amendment was made. This fact further supported the Court’s reasoning that prior to the amendment the District Court could have considered probation.
Commentary: Justice Rosen is clearly concerned in this opinion that the State applied “Jessica’s Law” to Gracey, who has an IQ of 50. However, it occurs to us that the reason for the mandatory minimum under that law is that these kind of offenders are especially likely to re-offend. A low IQ does not alter that fact: indeed perhaps someone with such an exceptionally low IQ is even more likely to reoffend, since they may be less likely to appreciate the criminal aspect of what they are doing. Whether civil commitment is a better option in such situations is another matter.