Senate Judiciary committee hears split testimony on bill to curb successive post-conviction motions

The Senate Judiciary Committee heard more than two hours of testimony on Senate Bill 60, which would limit second and successive post-conviction motions under K.S.A. 60-1507 and change appellate review for some habeas cases.

Supporters, including the Kansas attorney general’s office and county prosecutors, said the bill is aimed at reducing repetitive filings that drain judicial resources. “The purpose of this bill is to stop, or stem the . . . overwhelming amount of repetitive, unmeritorious post-conviction motions that we’ve seen,” said Chris Ailslinger, deputy solicitor general for the Kansas Attorney General’s Office. He added the measure “codifies already the existing rules and procedures” and contains carve-outs for rare, egregious failures by counsel.

Opponents — including the Capitol Appellate Defender, the Kansas Association of Criminal Defense Lawyers and innocence organizations — said the bill’s proposed limits on successive petitions would bar meritorious claims and block routes to exoneration in some cases. “This bill puts finality over fairness,” said Tricia Rojo Bushnell, executive director of the Midwest Innocence Project. Jean Phillips of the Kansas Association of Criminal Defense Lawyers described the case of Lamont McIntyre, saying a third petition with new investigation ultimately produced exonerating evidence and that SB 60’s standards could have prevented that review.

What the bill would change

According to testimony and the bill brief, SB 60 would revise K.S.A. 60-1507 (the state habeas/post-conviction statute) to say a court shall not consider a second or successive post-conviction motion unless one of narrow exceptions applies: the claim relies on a new rule of constitutional law made retroactive to the petitioner, or the factual basis of the claim could not have been discovered previously and would be sufficient, by clear and convincing evidence, to show no reasonable factfinder would have found the petitioner guilty. The bill would also bar filing a second or successive motion while an appeal on a prior motion is pending and defines when a motion counts as “second or successive.”

SB 60 would also amend K.S.A. 60-2102 to allow direct appeal to the Kansas Supreme Court for habeas appeals when the prisoner was sentenced to death. Testimony said the change aligns appellate paths for capital habeas appeals with existing capital direct-appeal practice.

Supporters’ arguments and clarifications

Ailslinger and Aaron Breitenbach, deputy district attorney in Sedgwick County, told the committee the proposal is intended to restore pre-2004 practice and reduce what they characterized as a flood of repetitive filings since the Kansas Supreme Court’s decision in Brown v. State (2004). Ailslinger said the bill mirrors federal law exemptions and “returns the law to what it was, pre 02/2004.”

Breitenbach, speaking for the Kansas County and District Attorneys Association, urged a grant of relief from overlapping filings while an appeal is pending; his written testimony and oral remarks included a friendly amendment the association supports to address motions filed while other appeals are unresolved. He also asked the committee to consider replacing the bill’s term “expedited” with “without undue delay” to avoid conflict with established Supreme Court rule timelines.

Opponents’ concerns and examples

Clayton Perkins, chief attorney at the Capitol Appellate Defender Office, testified for indigent defense interests and warned that capital and other complex cases have enormous records and require time for counsel to review. Perkins cited examples of records running extremely large and underscored the practical limits on counsel capacity.

Jean Phillips recounted the Lamont McIntyre matter, saying the petitioner’s first appointed counsel “did not talk to him, did not meet with him, did not have him at the hearing, and presented no evidence.” Phillips said McIntyre obtained relief after counsel on a later petition investigated witnesses that had been available earlier, and she warned SB 60’s “could not have been discovered with due diligence” standard would bar that path. “If we have these standards in place, he would not satisfy the second or successive petition standard,” Phillips said.

Tricia Rojo Bushnell said innocence organizations regularly work on successive petitions because by the time her office can investigate, direct appeals and other remedies are exhausted. She told the committee her office has more than 900 applicants waiting for assistance and that many of their filings are, by necessity, successive. She warned SB 60’s standard requiring evidence that “could not have been found previously” would prevent some meritorious claims from reaching the state courts.

Data and disagreement on scale

Committee members asked for data on how frequent and successful repeated filings are. Proponents said the filings have grown into “hundreds if not thousands” over years and that repetitive motions often lack merit and consume court, prosecutorial and defense resources. Opponents disputed the scale and cited a 2019 count of roughly 150 K.S.A. 60-1507 filings statewide as one data point; they emphasized that successful reversals after second or later petitions, while uncommon, include cases in which new investigation revealed innocence.

Committee process and next steps

The hearing included multiple committee questions and a time-limited conferee structure; the chair announced three-to-six minute limits for conferee testimony. The committee did not take a vote on SB 60 during the hearing. Several members expressed caution about curtailing access to post-conviction review in death-penalty cases; others emphasized the need for finality and efficient use of judicial resources. No formal committee action on SB 60 was recorded in the transcript.

Ending note

Supporters described SB 60 as restoring finality and aligning the state more closely with federal habeas standards; opponents described it as an access-to-courts restriction that could foreclose meritorious claims and exonerations. The committee hearing closed after questions from both sides and additional written opponent testimony was noted in the record.