State v. ReedState v. Reed
The opinion of the court was delivered
This is a direct appeal from the trial court’s ruling that
The facts are not in dispute and have no real significance to the question before us. The defendant, Keith Reed, previously was charged as a juvenile, on two separate occasions, with rape. His defense was consent. Defendant was adjudicated a juvenile offender for the crime of aggravated sexual battery on the first offense and for the crime of indecent liberties with a child on the second offense. He served five months at the Youth Center at Topeka (YCAT).
The night defendant (thén 18 years of age) was released from YCAT, he committed criminal offenses which led to his being bound over for trial as an adult on three counts of rape. Pursuant to a plea bargain, he pled guilty to one count of aggravated sexual battery (
Reed was examined by the SRDC, and it recommended: “The recommendation for this inmate is to continue incarcerated [sic]. A second recommendation is issued in regard to a sentence length modification that will allow the inmate to return to society at an earlier date.”
The defendant was adjudged guilty of aggravated sexual battery, a class D felony. The penalty statute,
The history of the statute in question is confusing and will be set forth later in this opinion. In order to avoid confusion, we point out that the statute the trial court cited as being unconstitutional was erroneously cited. The statute cited,
“[T]he court . . . shall modify such sentence if recommended by the state reception and diagnostic center unless the court finds that the safety of the public will be jeopardized and that the welfare of the inmate will not be served by such modification.” (Emphasis supplied.)
The trial court, apparently on its own volition and without benefit of briefs or argument and without citing any authority, held the statute unconstitutional, reasoning as follows:
“The Court is of the view that Chapter 92 of the 1989 Session Laws and, moreparticularly, Section (2), subparagraph (4) [sic], is an unconstitutional violation of the separation of powers. Modification of sentence is a judicial function. This places the power to modify in an executive branch official, and, more particularly, a psychiatrist working for the Secretary of Corrections. The standard is an impossible standard in most cases because the Court has to find not only that the safety of the public will be jeopardized, but also that the welfare of the inmate will [not] be served by modification. This gives carte blanche authority for modification to a psychiatrist working for the Secretary of Corrections.
“Furthermore, the Court as a second ground finds that this statute is an unlawful delegation of legislative power over sentences in criminal cases with inadequate standards contained in the statute for the Secretary of Corrections or a psychiatrist working under him to determine when a sentence should be modified. The legislature has a right to set the sentence, but there is no constitutional basis to give a power to modify to a doctor working for the Secretary of Corrections on any basis whatsoever. The statute contains no standards whatsoever. It simply provides the power to modify and requires that the Court follow the recommendation unless it meets extremely difficult and unreasonable standards on the part of the Court with no standards whatsoever on the executive branch official. As far as this statute is concerned, the Secretary of Corrections could modify for any reason whatsoever and the Court would have to accept it unless these unreasonable standards were able to be met by evidence in the case and a finding by the Court.”
This offense occurred on September 20, 1989. Thus, the law that was in effect on that date,
The 1988 legislature passed two bills which modified the 1987 statute. On April 14, 1988, the legislature approved L. 1988, ch. 116, § 1, which changed only subsection (3) of the 1987 statute but retained the “may” language of the subsection. On May 10, 1988, the legislature adopted L. 1988, ch. 115, § 8, which made numerous changes to the statute but left subsection (3) as it had been previously and did not reflect the changes made in L. 1988, ch. 116, § 1.
The result of these two independent bills was reflected in the 1988 statute books as two different, but largely identical, statutes. L. 1988, ch. 115, § 8, was reported as
The 1988a statute was repealed by the 1989 legislature. L. 1989, ch. 95, § 12. Nevertheless, for a time, we had two versions of the authorized dispositions statute because the legislature passed two independent bills modifying the 1988 statute. On April 18, 1989, the legislature passed L. 1989, ch. 95, § 5, which modified the 1988 statute in a number of ways but left the “may” language in subsection (3). On April 25, 1989, the legislature passed L. 1989, ch. 92, § 2, which modified the 1988 statute in a number of other ways and did not incorporate the changes made in chapter 95. Most significantly, for present purposes, the legislature changed subsection (3) such that “may” was changed to “shall”; thus, the district court “shall” modify a sentence as recommended by the SRDC unless the court makes certain specified findings.
The result was two authorized dispositions statutes:
The history of the 1989 statute and the 1989c statute indicates they both originated from modifications of the same statute, the 1988 statute, which in turn originated from the 1987 statute. The changes represented
The legislature subsequently repealed
“[T]he court . . . shall modify such sentence if recommended by the Topeka correctional facility—east unless the court finds and sets forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the inmate will not be served by such modification." (Emphasis supplied.)K.S.A. 1990 Supp. 21-4603(4)(a) .
Obviously, changing “and” to “or” is a significant change.
It is the “and” version of the statute that is before us. See
State v. Sutherland,
Like the Constitution of the United States, the Kansas Constitution contains no express provision establishing the doctrine of separation of powers. However, it has been recognized that the very structure of the three-branch system gives rise to the doctrine.
State ex rel. Stephan v. Kansas House of Representatives,
In State v. Greenlee, we discussed the doctrine, and established general principles governing the doctrine’s application, as follows:
“The basic meaning of the separation of powers doctrine is that the whole power of one department should not be exercised by the same hands which possess the whole power of either of the other departments. Dreyer v. Illinois,187 U.S. 71 ,47 L. Ed. 79 ,23 S. Ct. 28 (1902); Van Sickle v. Shanahan,212 Kan. 426 [,511 P.2d 223 (1973)]. It does not necessarily follow, however, that an entire and complete separation is either desirable or was ever intended by the framers of the Constitution. The fact that the powers of one department may overlap with another department’s powers has long been a recognized fact. Throughout the judicial history of this state early decisions attempted to apply the doctrine strictly, refusing to tolerate any overlapping of powers. [Citation omitted.] The more recent cases have modified the doctrine, taking a more pragmatic, flexible and practical approach giving recognition to the fact there may be a certain degree of blending or admixture of the three powers of government and that absolute separation of powers is impossible. Leek v. Theis,217 Kan. 784 ,539 P.2d 304 (1975). See also Nixon v. Administrator of General Services,433 U.S. 425 ,53 L. Ed. 2d 867 ,97 S. Ct. 2777 (1977).
"There have been a number of cases in Kansas dealing with the separation of powers and in them the following general principles are established:
“(1) A statute is presumed to be constitutional. All doubts must be resolved in favor of its validity, and before a statute may be stricken down, it must clearly appear the statute violates the constitution. Leek v. Theis,217 Kan. 784 .
“(2) When a statute is challenged under the constitutional doctrine of separation of powers, the court must search for a usurpation by one department of the powers of another department on the specific facts and circumstances presented. Leek v. Theis,217 Kan. at 785 ;State, ex rel., v. Fadely, 180 Kan. 652 ,308 P.2d 537 (1957).
“(3) A usurpation of powers exists when there is a significant interference by one department with operations of another department. State, ex rel., v. Bennett,219 Kan. 285 ,547 P.2d 786 (1976).
“(4) In determining whether or not a usurpation of powers exists a court should consider (a) the essential nature of the power being exercised; (b) the degree of control by one department over another; (c) the objective sought to be attained by the legislature and (d) the practical result of the blending of powers as shown by actual experience over a period of time. State, ex rel., v. Bennett,219 Kan. 285 .”228 Kan. at 715-16 .
Greenlee
teaches us that an absolute separation of powers is impossible, and a flexible, pragmatic, and practical approach to the doctrine is the proper approach, with a usurpation of powers existing only when there is “a significant interference” by one department with another department’s operations.
State v. Greenlee,
Clearly, the sentencing function in a criminal case is considered a judicial function.
State v. Owens
&
Carlisle,
We have previously rejected separation of powers challenges to mandatory sentencing provisions which limit the sentencing discretion of a district court. See
State v. Freeman,
To determine whether
First, we look to the nature of the power being exercised. We do not believe that the enactment of
In considering whether the welfare of the inmate will be served as required by
The United States of America has the highest percent of its population in prison of any country in the world. Kansas has long recognized the need to involve mental health professionals in the behavior modification process. If we ever hope to reverse the trend of incarcerating more and more people, the courts must rely on the expertise of others in determining how to best accomplish behavior modification.
Here, the legislature has clear authority to set the range of sentence; thus, it could lower the minimum sentence. It could also authorize the executive branch to grant paroles (and it has granted the executive branch wide discretion to grant paroles in many areas, depending on the crime or crimes involved). Studies show the trial judges were not following SRDC’s recommendations to modify (reduce) sentences in over 50 percent of the cases. O’Neal, Criminal Law, Procedures and Sentencing, 58 J.K.B.A. 27, 28 (July/August 1989). The legislature, under pressure from the United States District Court for the District of Kansas to reduce overcrowding, is attempting to encourage the trial courts to follow SRDC’s recommendations by modifying more sentences or to articulate reasons in the two designated areas as to why théy are not following the recommendations. The nature of the power being exercised is advisory in nature because of the great amount of discretion given to the trial courts to reject the recommendations by making specific findings.
Second, we must seek to determine the degree of control by the executive over the judicial branch. Admittedly, the SRDC report will receive closer scrutiny and attention than formerly may have been the case. The SRDC reports, however, are not developed lightly. Rather, the reports are normally developed on sound, professional bases. In this case, the report included (1) interviews with the defendant; (2) a background questionnaire completed by defendant’s mother; (3) the district attorney’s report to the secretary of corrections; (4) an affidavit of the Shawnee County District Court; (5) a Home Base Termination Study; (6) high school transcripts; (7) a battery of psychological examinations; (8) a psychiatric examination; and (9) the results of consultation among a team of diagnostic professionals.
The controls placed upon the district court do not represent “an unlawful delegation of legislative power over sentences in criminal cases” as the trial court found. Rather, the statute channels the discretionary authority of the court in the same fashion as the mandatory presumptive sentencing provisions of
The third and fourth factors require us to look at the objective sought to be obtained and the pretrial result. The objective sought by the legislature, clearly, was to provide immediate relief to the overcrowded
The trial court also found the statute to be an unlawful delegation of legislative power over sentences in criminal cases with inadequate standards contained in the statute for the executive branch to determine when a sentence should be modified, thus giving unfettered right to a mental health professional to modify sentences. For the reasons set forth above, the SRDC recommendation does not give unfettered discretion and authority to the executive branch. The ultimate authority remains in the judicial branch of government.
The purpose of the State Reception and Diagnostic Center at the time in question was to “provide a thorough and scientific examination and study” of male felony offenders to aid the secretary of corrections in determining whether to parole the inmate or where to place the inmate in the correctional system.
The trial court, because it found the statute unconstitutional, did not consider the mandate of
Reversed.