SESSION OF 2023
SECOND CONFERENCE COMMITTEE REPORT BRIEF
SENATE SUBSTITUTE FOR HOUSE BILL NO. 2 010
As Agreed to April 6, 2023
Brief*
Senate Sub. for HB 2010 would create law in the Kansas Code of Criminal Procedure
(Code) regarding jailhouse witness testimony; make technical updates to certain cross
references to statutes that have been repealed; amend the definition of criminal discharge of a
firearm; create special sentencing rules related to the use of firearms; amend law concerning
eligibility for certain offenders for the nonprison sanction of placement in a certified drug abuse
treatment (SB 123) program; and amend law concerning the tolling of postrelease supervision
time.
Jailhouse Witness Testimony (Sections 1 and 9)
Disclosure Requirements
The bill would require, in any criminal prosecution, the prosecuting attorney (prosecutor) to
disclose any intent to introduce testimony of a jailhouse witness, as defined by the bill, regarding
statements made by a suspect or defendant, while the jailhouse witness and suspect or
defendant were both incarcerated, within the time provided by the section of the Code governing
discovery.
The bill would also require the prosecutor to disclose to the defense:
●The criminal history of the jailhouse witness, including pending or dismissed criminal
charges;
●The jailhouse witness’s cooperation agreement and any benefit, as defined by the bill,
that has been provided to, or will be provided in the future to the witness;
●The contents of any statement allegedly given by the suspect or defendant to the
jailhouse witness and the contents of any statement given by the witness to law
enforcement regarding the statements allegedly made by the suspect or defendant,
including the time and place such statements were given;
____________________
*Conference committee report briefs are prepared by the Legislative Research Department and do not express
legislative intent. No summary is prepared when the report is an agreement to disagree. Conference committee
report briefs may be accessed on the Internet at http://www.kslegislature.org/klrd
1 - 2010 ●Any information regarding the jailhouse witness recanting testimony or statements,
including the time and place of recantation, the nature of the recantation, and the
names of the people present at the recantation; and
●Any cooperation agreement and any benefit that the jailhouse witness received in any
criminal case in which the testimony of such jailhouse witness was introduced.
The court could allow the prosecutor to comply with these disclosure requirements after
the time limit described above if the court finds the jailhouse witness was not known or the
information the bill would require to be disclosed could not be discovered or obtained by the
prosecutor exercising due diligence within such time period.
If the court finds that disclosure of the above information is likely to cause bodily harm to
the jailhouse witness, the bill would allow the court to order that the evidence be viewed only by
defense counsel and not by the defendant or others, or issue a protective order.
Database
The bill would require each prosecutor’s office to maintain a central record containing
information regarding cases in which jailhouse witness testimony is introduced or is intended to
be introduced by a prosecutor regarding statements made by a suspect or defendant, the
substance of such testimony, and any benefit requested by, provided to, or to be provided in the
future to such witness in connection with testimony provided by the witness.
The bill would require the prosecutor’s office to forward this information to the Kansas
Bureau of Investigation (KBI), which would be required to maintain a statewide database of such
information. The database would be accessible only to prosecutors and its records would
otherwise remain confidential and not subject to disclosure under the Kansas Open Records Act
(KORA), and this confidentiality provision would not be subject to expiration or review under
KORA.
Statutory Cross References (Sections 2, 6, and 7)
The bill would update statutory cross references in statutes concerning:
●Jury instructions for persons who lack the required mental state to commit a crime;
●Annual hearings on the continued commitment of persons who were found to lack the
required mental state to commit a crime; and
●Municipal zoning of group homes.
The bill would also make technical amendments to ensure consistency in statutory
phrasing.
2 - 2010 Definition of Criminal Discharge of a Firearm (Section 3)
The bill would amend the definition of criminal discharge of a firearm to include the
reckless and unauthorized discharge of any firearm at a motor vehicle in which there is a human
being, regardless of whether the offender knows or has reason to know that a human being is
present. The bill would also make technical changes to the definition.
Special Sentencing Rules (Section 4)
Violation of Criminal Possession of a Weapon by a Convicted Felon
The bill would create a special sentencing rule stating that, notwithstanding statutory
provisions regarding lesser and included crimes or any other provisions of law to the contrary,
the sentence for a violation of criminal possession of a weapon by a convicted felon would be a
presumptive term of imprisonment, required to be served consecutively to any other term(s) of
imprisonment imposed. The rule would be triggered if the trier of fact finds beyond a reasonable
doubt that:
●The weapon the offender possessed during such violation was a firearm; and
●Such firearm was used by the offender during the commission of any violent felony,
as defined by the bill.
The bill would specify that this sentencing rule would not apply to an offender who is
prohibited from possessing a weapon as a result of a juvenile adjudication.
The bill would define “violent felony” to mean the following crimes as defined in statute:
●Capital murder or first- or second-degree murder;
●Voluntary manslaughter;
●Kidnapping, when the crime involves holding a person for ransom or as a shield or
hostage, or aggravated kidnapping;
●Aggravated assault, when committed with a deadly weapon, or aggravated assault of
a law enforcement officer, when committed with a deadly weapon;
●Aggravated battery, when the conduct causes great bodily harm or disfigurement, or
when the conduct causes bodily harm that could cause great bodily harm,
disfigurement or death or aggravated battery against a law enforcement officer,
unless the conduct involves bodily harm caused with a motor vehicle;
●Mistreatment of a dependent adult or mistreatment of an elder person, when the
conduct involves infliction of physical injury or unreasonable confinement or
punishment;
●Rape;
●Aggravated criminal sodomy;
3 - 2010 ●Abuse of a child, unless the acts constituting the crime are committed recklessly;
●Any felony offense under statutes prohibiting the unlawful manufacturing, cultivation,
or distribution of controlled substances;
●Treason;
●Criminal discharge of a firearm, when the acts constituting the crime are committed in
the presence of another human being;
●Fleeing or attempting to elude a police officer;
●Any felony that includes the domestic violence designation, as determined by the trier
of fact under the relevant statutory procedure; or
●Any attempt, conspiracy, or criminal solicitation of any felony offense described
above.
A whereas clause would designate amendments made in this section as the “Reduce
Armed Violence Act.”
Violation of Criminal Discharge of a Firearm
The bill would create a special sentencing rule for a violation of criminal discharge of a
firearm involving the reckless and unauthorized discharge of a firearm at a dwelling, building,
structure, or motor vehicle.
The rule would be triggered if the trier of fact makes a finding beyond a reasonable doubt
that the offender discharged a firearm and that the offender knew or reasonably should have
known a person was present at the above-mentioned locations.
When the person present is 14 years of age or older, the sentence would be a presumptive
term of imprisonment per the Kansas Sentencing Guidelines, plus 60 months of additional
imprisonment, to be served consecutively to any other term(s) of imprisonment.
When the person present is less than 14 years of age, the sentence would be a
presumptive term of imprisonment per the Kansas Sentencing Guidelines plus 120 months of
additional imprisonment, to be served consecutively to any other term(s) of imprisonment.
The bill would provide that a sentence imposed under both special rules would not be
considered a departure sentence and would not be subject to appeal, and for a sentence
imposed for a violation of criminal possession of a weapon by a convicted felon, no other
sentence would be permitted.
SB 123 Program Eligibility (Section 5)
The bill would amend law to expand eligibility for certain offenders for the nonprison
sanction of placement in a certified drug abuse treatment (SB 123) program.
4 - 2010 The bill would amend law to allow a defendant convicted of a nonperson severity level 7, 8,
9, or 10 felony with a criminal history score of C through I to participate in a certified drug abuse
treatment program if the defendant has no prior convictions for manufacturing a controlled
substance, cultivating or distributing a controlled substance, or unlawful acts involving proceeds
from drug crimes.
The bill would amend law to allow a defendant convicted of a nonperson severity level 7, 8,
9, or 10 felony with a criminal history score of A or B to be able to participate in a certified drug
abuse treatment program if the defendant has no prior convictions for manufacturing a
controlled substance, cultivating or distributing a controlled substance, or unlawful acts involving
proceeds from drug crimes, and:
●The person felonies in the defendant’s history are nondrug severity level 8 or lower,
and
●The court finds that the safety of the members of the public will not be jeopardized by
the placement of the defendant in a certified drug abuse treatment program.
Tolling of Postrelease Supervision Time (Section 8)
The bill would amend a statute governing parole, conditional release, and postrelease
supervision to specify that the service of postrelease supervision time would not toll, except as
provided in the statute governing violations of conditions of release.
Second Conference Committee Action
The second Conference Committee agreed to the provisions of Senate Sub. for HB 2010,
as passed by the Senate, and to insert the contents of HB 2293, as amended by the Senate
Committee on Judiciary, with the following modifications:
●Adjust the information required to be disclosed to the defense by the prosecutor
concerning the introduction of jailhouse witness testimony;
●Remove the whereas clause designating the bill as the Pete Coones Memorial Act.
●Remove the requirement that the prosecutor notify victims of any benefit received by
a jailhouse witness in connection with offering or providing testimony; and
●Adjust language with respect to information required to be maintained in the database
required to be established by the bill.
Background
The second Conference Committee agreed to the contents of Senate Sub. for HB 2010, as
passed by the Senate, and agreed to further amend and include the contents of HB 2293, as
amended by the Senate Committee on Judiciary.
5 - 2010 The Senate Committee on Judiciary recommended a substitute bill be passed containing
the provisions of HB 2010, HB 2069, HB 2070, all as passed by the House, and SB 193, as
amended by the Senate Committee on Judiciary.
HB 2010 (Statutory Cross References)
The bill was prefiled for introduction by Representative Highberger on January 6, 2023.
House Committee on Judiciary
In the House Committee on Judiciary hearing on the bill on January 23, 2023,
Representative Highberger testified as a proponent, stating he had come across the needed
updates while conducting research.
The House Committee amended the bill to add updated statutory references in statutes
concerning commitment of persons found not guilty due to lacking the required mental state to
commit a crime and municipal zoning of group homes.
Senate Committee on Judiciary
In the Senate Committee on Judiciary hearing on the bill on March 15, 2023, a Senior
Assistant Revisor of Statutes provided an overview of the bill. No testimony was provided.
On March 22, 2023, the Senate Committee recommended a substitute bill be passed
containing the provisions of the bill, as passed by the House; the provisions of SB 193, as
amended by the Senate Committee on Judiciary; and the provisions of HB 2069 and HB 2070,
as passed by the House. [Note: The Conference Committee retained the amendment.]
SB 193 and SB 183 (Special Sentencing Rules; Criminal Discharge of Firearm Definition)
[Note: Provisions concerning a special sentencing rule related to a violation of a criminal
discharge of a firearm and the definition of that crime (SB 183) were amended into SB 193
when the Senate Committee took final action on that bill.]
SB 193 (Special Sentencing Rule)
The bill was introduced by the Senate Committee on Judiciary at the request of Senator
Warren.
[Note: A companion bill, HB 2031, was introduced by the House Committee on Corrections
and Juvenile Justice on January 13, 2023. The bill was recommended as amended by the
House Committee on February 6, 2023, and was stricken from the Calendar on February 23,
2023.]
In the Senate Committee on Judiciary hearing on February 15, 2023, proponent testimony
was provided by a representative of the Johnson County Sheriff’s Office and a representative of
6 - 2010 the Kansas Association of Chiefs of Police, Kansas Peace Officers Association, and Kansas
Sheriffs Association, who indicated the intent of the bill was to address a rise in violent crime
being committed by convicted felons while using firearms.
Opponent testimony was provided by a private citizen, who in general was in support of
the bill, except for the one section that referenced crimes involving possession of controlled
substances. No other testimony was provided.
On February 23, 2023, the bill was withdrawn from the Senate Calendar and referred to
the Senate Committee on Ways and Means. On March 1, 2023, the bill was withdrawn from the
Committee and re-referred to the Senate Committee of the Whole. On March 21, 2023, the bill
was withdrawn from the Senate Calendar and referred to the Senate Committee on Judiciary.
On March 22, 2023, the Senate Committee on Judiciary amended the bill to:
●Require a firearm be used, rather than possessed, during the commission of any
violent felony to trigger the special sentencing rule [Note: The Conference Committee
retained this amendment,];
●Modify the list of crimes that would constitute a “violent felony” [Note: The Conference
Committee retained this amendment.]; and
●Add provisions creating a special sentencing rule for violations of criminal discharge
of a firearm and adjusting that crime’s definition (SB 183). [Note: The Conference
Committee retained this amendment].
SB 183 (Special Sentencing Rule; Criminal Discharge of Firearm Definition)
The bill was introduced by Senator Haley on February 7, 2023, and referred to the Senate
Committee on Judiciary on February 8, 2023.
HB 2069 (Tolling of Postrelease Supervision Time)
The bill was introduced by the House Committee on Corrections and Juvenile Justice at
the request of a representative of the Kansas Sentencing Commission (Commission).
House Committee on Corrections and Juvenile Justice
In the House Committee hearing on January 23, 2023, representatives of the Commission
and the Kansas Department of Corrections (KDOC) testified as proponents of the bill, stating
the bill would clarify how time spent in jail should be credited when a person is an alleged
postrelease supervision violator who has been arrested on a KDOC warrant and at the same
time is awaiting trial on new criminal charges. No other testimony was provided.
7 - 2010 Senate Committee on Judiciary
In the Senate Committee hearing on March 9, 2023, the same proponents testified as in
the House Committee hearing, and provided substantially similar testimony. No other testimony
was provided.
HB 2070 (SB 123 Program Eligibility)
SB 123 (2003) created a nonprison sanction of certified drug abuse treatment for certain
drug offenders. Commonly referred to as the “Senate Bill 123 Program,” this program is
administered by the Commission.
The bill was introduced by the House Committee on Corrections and Juvenile Justice at
the request of the Commission.
House Committee on Corrections and Juvenile Justice
In the House Committee hearing on January 24, 2023, a representative of the Commission
testified as a proponent of the bill, stating individuals convicted of these nondrug crimes
sometimes committed these crimes because of their addiction, 85 percent of felons require
appointed council because they are indigent, and felony offenders are not likely to have health
insurance to seek their own substance abuse treatment.
Written-only proponent testimony was submitted by a representative of the State Board of
Indigents’ Defense Services (BIDS) and a representative of the Kansas Association of Chiefs of
Police, Kansas Peace Officers Association, and Kansas Sheriffs Association. The written
testimony indicated treating an individual’s drug addiction treats the underlying cause of the
crime and could prevent future criminal acts. No other testimony was provided.
Senate Committee on Judiciary
In the Senate Committee hearing on March 9, 2023, a representative of the Commission
testified as a proponent and gave substantially similar testimony to the testimony provided to
the House Committee. Written-only proponent testimony was provided by representatives of
BIDS and the Kansas Community Corrections Association and by a representative of the
Kansas Association of Chiefs of Police, Kansas Peace Officers Association, and Kansas Sheriffs
Association. No other testimony was provided.
HB 2293 (Jailhouse Witness Testimony)
The bill was introduced by the House Committee on Judiciary at the request of a
representative of the Innocence Project.
8 - 2010 House Committee on Judiciary
In the House Committee hearing on February 13, 2023, representatives of BIDS, the
Innocence Project, and the Executive Director of the Midwest Innocence Project provided
proponent testimony, generally stating the bill is an important step in preventing wrongful
convictions and creates critical safeguards for the use of jailhouse witnesses in court. A
representative of Americans for Prosperity provided written-only proponent testimony.
On February 15, 2023, opponent testimony was provided by a representative of the
Kansas County & District Attorneys Association (KCDAA), generally stating the bill proposes
requirements already imposed by current statutes, case law, rules of professional conduct, and
court rules. No other testimony was provided.
The House Committee adopted an amendment to remove provisions related to pretrial
hearings in criminal prosecutions for murder or rape in which the prosecutor intended to
introduce the testimony of a jailhouse witness and jury instructions involving the use of such
testimony [Note: The Conference Committee retained this amendment.]
Senate Committee on Judiciary
In the Senate Committee hearing on March 14, 2023, proponent testimony was provided
by representatives of BIDS and the Midwest Innocence Project, who generally stated the bill
would provide transparency and enhance reliability regarding testimony of jailhouse witnesses.
Written-only proponent testimony was provided by a representative of Americans for Prosperity.
Opponent testimony was provided by a representative of the KCDAA, who provided
substantially similar testimony as in the House Committee hearing. Written-only opponent
testimony was provided by the Sedgwick County District Attorney.
The Senate Committee amended the bill to remove legislative review of the confidentiality
provision under KORA with respect to records held by the database that would be created by
the bill. [Note: The Conference Committee retained this amendment.]
Fiscal Information
HB 2010 (Statutory Cross References)
According to the fiscal note prepared by the Division of the Budget on the bill, as
introduced, the Office of Judicial Administration (OJA) states enactment of the bill would not
have a fiscal effect on the operations of the Judicial Branch.
SB 193 (Special Sentencing Rule)
According to the fiscal note prepared by the Division of the Budget on the bill, as
introduced, the Commission estimates that enactment of the bill would result in an increase of
29 adult prison beds needed by the end of FY 2024. By the end of FY 2033, 232 additional beds
would be needed. The current estimated available bed capacity is 9,428 for males and 936 for
9 - 2010 females. Based upon the Commission’s most recent ten-year projection contained in its FY
2023 Adult Inmate Prison Population Projections report, it is estimated that the year-end
population will total 7,933 male and 764 female inmates in FY 2023 and 8,043 male and 740
female inmates in FY 2024.
KDOC indicates enactment of the bill would increase marginal costs for the operation of
the correctional facilities for food, clothing, and other supplies. The annual cost would total
$100,769 based on the FY 2022 marginal cost of $9.52 per day per occupied bed ($9.52 x 365
days x 29 beds).
OJA indicates enactment of the bill would require findings of certain facts to sentence an
offender, which could result in extending the length of trials in certain cases. However, a fiscal
effect cannot be estimated.
Any fiscal effect associated with enactment of the bill is not reflected in The FY 2024
Governor’s Budget Report.
SB 183 (Special Sentencing Rule; Criminal Discharge of Firearm Definition)
According to the fiscal note prepared by the Division of the Budget on the bill, the
Commission estimates that enactment of the bill would result in an increase of eight adult prison
beds needed by the end of FY 2024. By the end of FY 2033, 128 additional beds would be
needed. The current estimated available bed capacity is 9,428 for males and 936 for females.
Based upon the Commission’s most recent ten-year projection contained in its FY 2023 Adult
Inmate Prison Population Projections report, it is estimated that the year-end population will total
7,933 male and 764 female inmates in FY 2023 and 8,043 male and 740 female inmates in FY
2024.
KDOC states that enactment of the bill would have a negligible impact on current
operations that could be absorbed within existing resources. The KDOC notes that marginal
costs such as food, clothing, and supplies for each resident total $9.52 per day per resident.
OJA indicates enactment of the bill would have a negligible fiscal effect on the Judicial
Branch that could be absorbed within existing resources.
Any fiscal effect associated with enactment of the bill is not reflected in The FY 2024
Governor’s Budget Report.
HB 2070 (SB 123 Program Eligibility)
According to the fiscal note prepared by the Division of the Budget on the bill, the
Commission estimates enactment of the bill may have an impact on prison admissions and bed
space, but the effect cannot be determined at this time. The Commission indicates the bill would
increase the SB 123 program cost by $592,322, $1,184,644, or $1,776,966 in FY 2024,
depending on which scenario occurs. The Commission reports an average cost of $4,057 per
SB 123 treatment offender in FY 2022.
KDOC indicates the bill would not have a significant fiscal effect on the agency.
10 - 2010 OJA indicates the bill would require courts to hold hearings and provide rulings, and could
require court services officers to provide supervision to defendants who participate in a certified
drug treatment program instead of going to prison. This would require additional work by district
court judges, clerks, and court services officers. OJA is unable to estimate the fiscal effect on its
budget.
The Kansas Association of Counties (KAC) indicates the fiscal effect on local governments
would depend on how many qualified defendants participate in the certified drug abuse
programs but it is unable to estimate the fiscal effect.
Any fiscal effect associated with enactment of the bill is not reflected in The FY 2024
Governor’s Budget Report.
HB 2069 (Tolling of Postrelease Supervision Time)
According to the fiscal note prepared by the Division of the Budget on the bill, the
Commission indicates enactment of the bill could result in a need for additional prison beds, but
the fiscal effect cannot be determined. OJA and KDOC indicate the bill would have no fiscal
effect on their agencies. Any fiscal effect associated with enactment of the bill is not reflected in
The FY 2024 Governor’s Budget Report.
HB 2293 (Jailhouse Witness)
According to the fiscal note prepared by the Division of the Budget on the bill, as
introduced, the KBI estimates enactment of the bill would result in additional expenditures of
$182,180 from the State General Fund in FY 2024, incidental costs for security requirements of
the system, and negligible costs for prosecuting attorneys who wish to access the system who
are not already active users of the Kansas Criminal Justice Information System. The KBI
estimates the initial cost for the database would be $165,000 for licensing with an additional
cost of $12,410 for training and installation, and $4,770 for maintenance, for a total of $182,180
that is scalable according to number of concurrent users needed for the database.
The Office of Judicial Administration states the bill’s enactment could have a fiscal effect on
Judicial Branch operations because the bill’s provisions could extend the length of certain
cases, and the fiscal effect cannot be estimated until there has been an opportunity for the
Judicial Branch to operate under the bill’s provisions. Any fiscal effect associated with the bill is
not reflected in The FY 2024 Governor’s Budget Report.
Statutory cross references; sentencing; postrelease supervision; jail time; Kansas Department of Corrections; parole; conditional
release; jail time credit; certified drug abuse treatment program; SB 123 program; Office of Judicial Administration; Kansas
Association of Counties; sentencing grid; felons; firearms; sentence enhancement; violent felony; crimes; punishment; criminal
discharge of a firearm; criminal prosecutions; jailhouse witness testimony; disclosures; database; Pete Coones Memorial Act;
Kansas Open Records Act
ccrb_hb2010_02_0000.odt
11 - 2010