State v. Proctor - Kansas Judicial Branch

felons"); Harmelin, 501 U.S. at 999 (Kennedy, J., concurring); see Van Dyke, 31 Kan.
App. 2d at 673-74.
If Proctor were on lifetime postrelease supervision for the aggravated indecent
solicitation offense, sending him to prison as the result of a felony theft conviction
decades later seems to lack targeted retribution. Assuming the indecent solicitation
offense warranted substantial retribution that purpose becomes wholly diluted and
arguably lost if it is deferred until the offender commits another felony—something that
might never occur. Retribution typically would be served through the immediate, certain
penalty exacted for the offense. In that context, retribution expresses society's collective
opprobrium for the criminal conduct and imposes a sanction specifically to punish. As we
have discussed, retribution for the triggering felony, if it were a low-level offense like
theft, could not justify a sanction of life in prison even coupled with the underlying
aggravated indecent solicitation conviction. Living under the restrictions of lifetime
postrelease supervision may itself serve a retributive function. But that purpose does not
require that violations result in lifetime incarceration as opposed to some shorter period
of imprisonment or more restrictive conditions of supervision.
Deterrence, apart from incapacitation, serves to prevent the commission of an
offense in the first place. In theory, knowing of a harsh punishment for a particular crime,
people will not engage in that wrongful conduct. Nothing suggests lifetime postrelease
supervision and the consequence for violating its terms are so well known that they
effectively deter conduct of the sort Proctor engaged in. To the extent a defendant, such
as Proctor, learns of lifetime postrelease supervision as part of the disposition of the case,
it comes too late to deter the underlying offense. It might well serve to deter an offender
from committing a felony that would trigger his or her imprisonment for life. But if it
were to fail in that purpose and an offender were to commit a theft or pass a bad check,
deterrence alone would not justify an otherwise unconstitutionally cruel and unusual
punishment of life in prison for someone in Proctor's circumstance. In other words, a life
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