State v. Proctor - Kansas Judicial Branch

The State's rejoinder is to argue that the conditions of postrelease supervision are a
matter of legislative prerogative. That, of course, is true until the exercise of that
prerogative contravenes a citizen's constitutional rights. And, as all would agree, those
instances arise only rarely. But invoking legislative prerogative neither informs the issue
of comparative sentencing practices in other jurisdictions nor decides it. If it did, there
would be no point to the analysis, since any result could be trumped with the
government's claim of prerogative.
To the extent the parties have joined the issue, we cannot say the result obviously
favors the State and certainly not to the degree that it would overcome the substantial
considerations militating for a finding of unconstitutionality. In a study of this sort, one
state or group of states necessarily will impose the harshest punishment and some other
the most lenient. That cannot be decisive. If all the states were to take a similar approach
with only minor variances, an argument for unconstitutionality would be more difficult to
press. A single state out of step with that commonality might be susceptible to
constitutional challenge for a substantially more severe punishment. The parties have not
presented that picture to us. A substantial number of states do not seem to have coalesced
around a single approach and certainly not the one Kansas has chosen. Had the numbers
been reversed, with 46 states adopting irrevocable lifetime postrelease supervision, we
would be looking at a materially different assessment on this factor.
The parties have not zeroed in on the most significant aspect of the Kansas
scheme: What triggers a violation of the supervision and what consequence follows?
They have not indicated whether other states conform to Kansas' requirement that a
felony conviction for someone on lifetime supervised release automatically results in
imprisonment for life without any possibility of reprieve. Even were we to assume the
three other states identified as having irrevocable lifetime postrelease supervision follow
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