State v. Proctor - Kansas Judicial Branch

263, 271-72, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980); see Ring v. Arizona, 536 U.S.
584, 614, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) (Breyer, J., concurring) ("This Court
has held that the Eighth Amendment requires States to apply special procedural
safeguards when they seek the death penalty.").
A. The Problem
IV. RIPENESS
Before outlining and applying the requisite constitutional analysis, we turn to a
matter lurking ever so slightly beneath the surface. Given the sentencing scheme and
Proctor's current circumstances, the challenge to that part of his sentence calling for
lifetime postrelease supervision seems, in many respects, premature. That is, this court
has not really been presented with a concrete legal controversy founded on a fixed set of
material facts so much as a hypothetical projection of what could happen. Courts
typically refrain from deciding abstract issues because those decisions amount to
advisory opinions. See State ex rel. Morrison v. Sebelius, 285 Kan. 875, Syl. 15, 179
P.3d 366 (2008) (A court will consider neither issues that have become moot nor issues
that have yet to ripen into a "fixed and final shape" and, instead, "remain[] nebulous and
contingent."). The State has suggested as much and with fair reason. But, as we explain,
we believe we are obligated to press ahead.
As of the oral argument in this court, Proctor remained on probation. So long as he
continues as a probationer, he neither is on nor even faces lifetime postrelease
supervision under K.S.A. 2009 Supp. 22-3717. That sanction goes into effect only when a
convict has been released from prison. Proctor would have to violate the terms of his
probation. The district court would have to revoke and refuse to reinstate the probation.
Proctor would then have to serve his 44-month sentence and be released to trigger the
postrelease supervision. The thrust of Proctor's argument for unconstitutionality,
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