On July 2nd 2009, the Kansas Supreme Court handed down State v. Bello, in which it ruled that Juan Jose Bello’s life without parole for 25 years sentence under Jessica’s Law was invalid because his age had not been presented to the Jury to be proven beyond a reasonable doubt. The relevant part of Jessica’s Law applies to those aged over 18. On July 24th it applied the same precedent in State v. Gonzales. On August 14th, it applied the same precedent in State v. Morningstar. Bello’s actual age is not clear, but press reports indicate that Gonzales was 25 years old at the time of the offenses. Morningstar was 21 and the father of the victim. All three men will be resentenced to shorter spells in prison under the Sentencing Guidelines.
The pattern which is emerging is that a defendant’s age in these cases has not normally been presented to the Jury. Therefore it may be safe to assume that just about every life without parole for 25 years sentence handed down under Jessica’s Law between that law’s taking effect in 2006 and last month will be vacated (except where appeals have already been completed or procedurally defaulted).
So far this issue has received very little press coverage. Articles have dealt with the individual cases as the decisions were handed down but there does not seem to have been much comment as to the overall impact of the ruling, which by returning this batch of cases to the Sentencing Guidelines regime effectively nullifies the intent of the Legislature that these criminals not be released for a very long time. To be clear, this is something which individual prosecutors and Judges are in a position to correct going forwards by asking Juries to determine that the defendant is in fact over 18. However with the limited coverage of the cases it is quite possible that this is still happening, dooming further Jessica’s Law sentences.
The legal rationale for these rulings is as follows. Under the Apprendi v. New Jersey line of cases from the United States Supreme Court facts which lead to sentencing enhancements must be presented to the Jury to be determined beyond a reasonable doubt. The Kansas Supreme Court held that since age determines whether a convicted child molester receives the life without parole for 25 years sentence, that it is a fact which must be submitted to the Jury. However, Apprendi is far from a settled or uncontroversial decision. The majority cut across traditional lines, consisting of Justices Stevens, Scalia, Souter, Thomas, and Ginsburg, with Justices O’Connor, Kennedy and Breyer in dissent along with then Chief Justice Rehnquist. That Court has seen three changes of membership since the decision was handed down.
It is a little disquieting then that on the Kansas Supreme Court there was not a single dissent on this issue. It seems absurd that age would be considered a fact that needed to be proven – it is fairly obvious when someone is over the age of 18. Nothing in the State v. Bello opinion gave an indication that Bello’s age and eligibility for this sentence was in any doubt, and it would surely be possible to craft an Apprendi exception around facts which are plainly true, as indeed the Kansas Supreme Court has when it has upheld parts of the Sentencing Guidelines relating to prior convictions. Sadly, the Justice system now seems intent on mimicking grocery stores which implement rules that demand that the middle aged and elderly produce IDs before they may purchase tobacco or liquor to save their clerks the the trouble of thought.
A final comment. There are undoubtedly other crimes defined by Kansas Law in which age is a factor. In the post-Roper world the Death Penalty seems a likely candidate, but there are probably others. In extending Apprendi‘s reach in this way the Justices of the Kansas Supreme Court may have given themselves a lot more work in the years ahead.