State v. Proctor - Kansas Judicial Branch

prison without parole amounts to constitutionally impermissible punishment to the
vagaries of judicial discretion exercised, if at all, years from now.
We suppose this appeal could be stayed. Should Proctor successfully complete his
probation, he would be discharged without having been sent to prison and, thus, would
not be on postrelease supervision. The appeal would then be moot. If Proctor were to fail
on probation, he would at some point be released from prison on lifetime postrelease
supervision. Were he then to be convicted of a felony, his return to prison for life would
be triggered. The controversy would then be concrete, although additional factfinding
might well be in order. But, of course, this appeal could be stayed for decades or longer
awaiting an event that might never happen. The appeal would become moot upon
Proctor's death or legislative modification of the postrelease supervision scheme so that
life in prison no longer loomed as an irrevocable consequence. The idea of holding an
appeal for 40 years or more seems, in a word, unorthodox. Although it theoretically could
be done here in a single-issue appeal, the approach would seem unworkable in a case
raising multiple issues. We would not presume such a solution to be appropriate here in
the absence of clear precedent to that effect.
B. The Solution
Having determined that resolution of Proctor's attack cannot be deferred to a more
opportune time, we must consider how to deal with the unknowable circumstances that
have yet to occur. Obviously, a set of facts must be hypothecated—a fancy euphemism,
in this instance, for making something up—to fill the void. We could, of course, conjure
a scenario in which Proctor or some similarly situated defendant kills two people in cold
blood during an armed robbery and, thus, is convicted of capital murder as the new
felony causing his return to prison. In considering a claim that life in prison without
parole would be grossly disproportionate under those circumstances, a court could not
very well find for the defendant. If we were to choose forensic facts favoring the State in
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