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Debate over whether convictions later held unconstitutional should count for criminal history intensifies
Summary
House Bill 2401 would allow courts to count prior convictions that were held unconstitutional if an appellate court later overruled that ruling; prosecutors said the change prevents permanently excluding convictions that are later validated, while public‑defense advocates called the bill premature and likely to create litigation.
House Bill 2401, proposing an exception to the sentencing guidelines' rule that excludes convictions under statutes later held unconstitutional, prompted a vigorous exchange Wednesday between prosecutors and defense advocates in the House Committee on Judiciary.
Jason Thompson of the Revisor's Office told the committee the bill would amend KSA 21‑6810(d)(9) so that a prior conviction under a statute determined unconstitutional by an appellate court would not be used for criminal history scoring only "unless the basis of the determination of unconstitutionality by the appellate court is later overruled or reversed" by the Kansas Supreme Court or the United States Supreme Court.
Mark Bennett, representing the County and District Attorney's Association, argued proponents want the final appellate outcome to control criminal history scoring. He framed the issue around past litigation over Kansas's criminal‑threat statute (Bautger) and later U.S. Supreme Court developments, saying current interpretations can leave convictions excluded forever even if a higher court ultimately upholds the statute. "When an appellate court goes through the appellate system, the final result should be controlling," Bennett said.
Emily Brandt of the Kansas Bar Association's criminal‑defense counsel (BridA legislative committee) opposed the bill as unnecessary and premature. Brandt said the Kansas Supreme Court has not finally resolved whether U.S. Supreme Court precedent controls the state criminal‑threat statute, pointed to a pending Kansas Supreme Court case (State v. Phipps) and warned the bill would inject appellate uncertainty and encourage litigation. "This legislation is currently unnecessary and it's currently a rush to change a statute," Brandt said.
Committee members pressed both sides on the practical reach of the bill. Advocates for the change said its purpose is narrow: to let a future overruling or reversal restore the ability to count previously excluded convictions. Opponents warned the bill could create confusion, inconsistent sentencing practice among counties, and avoid allowing the Kansas Supreme Court the chance to rule first.
The committee took testimony and did not take final action on HB 2401 during the hearing. Members were given written testimony from both sides and asked to consider the timing and broader consequences of the proposed change to criminal history scoring.
