State v. Proctor - Kansas Judicial Branch

that course, we would not be disposed to treat that outcome any more or less favorably
for constitutional purposes.
4. Conclusion
As the discussion to this point foreshadows, the imposition of lifetime postrelease
supervision on Proctor violates the Eighth Amendment as cruel and unusual punishment.
That is true under both the "narrow proportionality" test Justice Kennedy has formulated
and the more holistic proportionality review Justice Powell outlined for the majority in
Solem and the Kansas Supreme Court applied in Freeman.
We do not belabor or repeat that discussion. The comparison of Proctor's
hypothecated criminal history with a punishment of life in prison without parole depicts
gross disproportionality. The United States Supreme Court has never approved a
recidivist statute imposing that sentence for a second conviction and has often discussed
the necessity for demonstrable incorrigibility—an ongoing inability to conform to the
criminal law—to warrant lengthy imprisonment for repeat offenders. The regimen for
lifetime postrelease supervision does not satisfy those standards.
The Kansas criminal and sentencing statutes punish other offenses and
combinations of offenses more harshly. Particularly telling, we think, if Proctor first
committed a felony property offense and then aggravated indecent solicitation, he would
not face nearly so unyielding a punishment as he does for committing those crimes in
reverse order. Persons released from prison after committing homicide offenses would be
treated far more leniently upon committing a felony property crime. And, to the extent
the parties have addressed comparable sentences in other states, the evidence places
Kansas in a distinct minority. The intrastate and interstate comparisons point toward a
constitutionally defective scheme whether considered as criteria intended to confirm or
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