Kansas 2025-2026 Regular Session

Kansas House Bill HB2326 Compare Versions

Only one version of the bill is available at this time.

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1	1	Session of 2025
2	2	HOUSE BILL No. 2326
3	3	By Committee on Corrections and Juvenile Justice
4	4	Requested by Brenna Visocsky on behalf of Kansas Appleseed
5	5	2-7
6	6	AN ACT concerning crimes, punishment and criminal procedure; relating
7	7	to sentencing; adding consideration of whether the offender has
8	8	physical custody of such offender's minor child or is a legal guardian or
9	9	custodian with physical custody of a minor child to the factors
10	10	considered for a dispositional departure; adding such consideration to
11	11	the factors considered for a diversion; amending K.S.A. 21-6815 and
12	12	22-2908 and repealing the existing sections.
13	13	Be it enacted by the Legislature of the State of Kansas:
14	14	Section 1. K.S.A. 21-6815 is hereby amended to read as follows: 21-
15	15	6815. (a) Except as provided in subsection (b), the sentencing judge shall
16	16	impose the presumptive sentence provided by the sentencing guidelines
17	17	unless the judge finds substantial and compelling reasons to impose a
18	18	departure sentence. If the sentencing judge departs from the presumptive
19	19	sentence, the judge shall state on the record at the time of sentencing the
20	20	substantial and compelling reasons for the departure.
21	21	(b) Subject to the provisions of K.S.A. 21-6817(b), and amendments
22	22	thereto, any fact that would increase the penalty for a crime beyond the
23	23	statutory maximum, other than a prior conviction, shall be submitted to a
24	24	jury and proved beyond a reasonable doubt.
25	25	(c) (1) Subject to the provisions of subsections (c)(3) and (e), the
26	26	following nonexclusive list of mitigating factors may be considered in
27	27	determining whether substantial and compelling reasons for a departure
28	28	exist:
29	29	(A) The victim was an aggressor or participant in the criminal
30	30	conduct associated with the crime of conviction, except that this factor
31	31	shall not apply to a sexually violent crime as defined in K.S.A. 22-3717,
32	32	and amendments thereto, or electronic solicitation as defined in K.S.A. 21-
33	33	5509, and amendments thereto, when:
34	34	(i) The victim is less than 14 years of age and the offender is 18 or
35	35	more years of age; or
36	36	(ii) the offender hires any person by giving, or offering to or agreeing
37	37	to give, anything of value to the person to engage in an unlawful sex act.
38	38	(B) The offender played a minor or passive role in the crime or
39	39	participated under circumstances of duress or compulsion. This factor may
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75	75	be considered when it is not sufficient as a complete defense.
76	76	(C) The offender, because of physical or mental impairment, lacked
77	77	substantial capacity for judgment when the offense was committed. The
78	78	voluntary use of intoxicants, drugs or alcohol does not fall within the
79	79	purview of this factor.
80	80	(D) The defendant, or the defendant's children, suffered a continuing
81	81	pattern of physical or sexual abuse by the victim of the offense and the
82	82	offense is a response to that abuse.
83	83	(E) The degree of harm or loss attributed to the current crime of
84	84	conviction was significantly less than typical for such an offense.
85	85	(F) The offender committed such crime as a result of an injury,
86	86	including major depressive disorder, polytrauma, post-traumatic stress
87	87	disorder or traumatic brain injury, connected to service in a combat zone,
88	88	as defined in section 112 of the federal internal revenue code of 1986, in
89	89	the armed forces of the United States of America. As used in this
90	90	subsection, "major depressive disorder," "polytrauma," "post-traumatic
91	91	stress disorder" and "traumatic brain injury" shall mean the same as such
92	92	terms are defined in K.S.A. 21-6630, and amendments thereto.
93	93	(G) The offender:
94	94	(i) Has physical custody of such offender's minor child or is a legal
95	95	guardian or custodian with physical custody of a minor child at the time of
96	96	sentencing for the current crime of conviction; or
97	97	(ii) had physical custody of such offender's minor child or was a
98	98	legal guardian or custodian with physical custody of a minor child at the
99	99	time the current crime of conviction was committed.
100	100	(2) Subject to the provisions of subsection (c)(3), the following
101	101	nonexclusive list of aggravating factors may be considered in determining
102	102	whether substantial and compelling reasons for departure exist:
103	103	(A) The victim was particularly vulnerable due to age, infirmity, or
104	104	reduced physical or mental capacity which was known or should have
105	105	been known to the offender.
106	106	(B) The defendant's conduct during the commission of the current
107	107	offense manifested excessive brutality to the victim in a manner not
108	108	normally present in that offense.
109	109	(C) The offense was motivated entirely or in part by the race, color,
110	110	religion, ethnicity, national origin or sexual orientation of the victim or the
111	111	offense was motivated by the defendant's belief or perception, entirely or
112	112	in part, of the race, color, religion, ethnicity, national origin or sexual
113	113	orientation of the victim whether or not the defendant's belief or perception
114	114	was correct.
115	115	(D) The offense involved a fiduciary relationship which existed
116	116	between the defendant and the victim.
117	117	(E) The defendant, 18 or more years of age, employed, hired, used,
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161	161	persuaded, induced, enticed or coerced any individual under 16 years of
162	162	age to:
163	163	(i) Commit any person felony;
164	164	(ii) assist in avoiding detection or apprehension for commission of
165	165	any person felony; or
166	166	(iii) attempt, conspire or solicit, as defined in K.S.A. 21-5301, 21-
167	167	5302 and 21-5303, and amendments thereto, to commit any person felony.
168	168	That the defendant did not know the age of the individual under 16
169	169	years of age shall not be a consideration.
170	170	(F) The defendant's current crime of conviction is a crime of extreme
171	171	sexual violence and the defendant is a predatory sex offender. As used in
172	172	this subsection:
173	173	(i) "Crime of extreme sexual violence" is a felony limited to the
174	174	following:
175	175	(a) A crime involving a nonconsensual act of sexual intercourse or
176	176	sodomy with any person;
177	177	(b) a crime involving an act of sexual intercourse, sodomy or lewd
178	178	fondling and touching with any child who is 14 or more years of age but
179	179	less than 16 years of age and with whom a relationship has been
180	180	established or promoted for the primary purpose of victimization;
181	181	(c) a crime involving an act of sexual intercourse, sodomy or lewd
182	182	fondling and touching with any child who is less than 14 years of age;
183	183	(d) aggravated human trafficking, as defined in K.S.A. 21-5426(b),
184	184	and amendments thereto, if the victim is less than 14 years of age; or
185	185	(e) commercial sexual exploitation of a child, as defined in K.S.A.
186	186	21-6422, and amendments thereto, if the victim is less than 14 years of
187	187	age.
188	188	(ii) "Predatory sex offender" is an offender who has been convicted of
189	189	a crime of extreme sexual violence as the current crime of conviction and
190	190	who:
191	191	(a) Has one or more prior convictions of any crimes of extreme
192	192	sexual violence. Any prior conviction used to establish the defendant as a
193	193	predatory sex offender pursuant to this subsection shall also be counted in
194	194	determining the criminal history category; or
195	195	(b) suffers from a mental condition or personality disorder which
196	196	makes the offender likely to engage in additional acts constituting crimes
197	197	of extreme sexual violence.
198	198	(iii) "Mental condition or personality disorder" means an emotional,
199	199	mental or physical illness, disease, abnormality, disorder, pathology or
200	200	condition which motivates the person, affects the predisposition or desires
201	201	of the person, or interferes with the capacity of the person to control
202	202	impulses to commit crimes of extreme sexual violence.
203	203	(G) The defendant was incarcerated during the commission of the
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247	247	offense.
248	248	(H) The crime involved two or more participants in the criminal
249	249	conduct, and the defendant played a major role in the crime as the
250	250	organizer, leader, recruiter, manager or supervisor.
251	251	In determining whether aggravating factors exist as provided in this
252	252	section, the court shall review the victim impact statement.
253	253	(3) If a factual aspect of a crime is a statutory element of the crime or
254	254	is used to subclassify the crime on the crime severity scale, that aspect of
255	255	the current crime of conviction may be used as an aggravating or
256	256	mitigating factor only if the criminal conduct constituting that aspect of the
257	257	current crime of conviction is significantly different from the usual
258	258	criminal conduct captured by the aspect of the crime.
259	259	(d) In determining aggravating or mitigating circumstances, the court
260	260	shall consider:
261	261	(1) Any evidence received during the proceeding;
262	262	(2) the presentence report;
263	263	(3) written briefs and oral arguments of either the state or counsel for
264	264	the defendant; and
265	265	(4) any other evidence relevant to such aggravating or mitigating
266	266	circumstances that the court finds trustworthy and reliable.
267	267	(e) Upon motion of the prosecutor stating that the defendant has
268	268	provided substantial assistance in the investigation or prosecution of
269	269	another person who is alleged to have committed an offense, the court may
270	270	consider such mitigation in determining whether substantial and
271	271	compelling reasons for a departure exist. In considering this mitigating
272	272	factor, the court may consider the following:
273	273	(1) The court's evaluation of the significance and usefulness of the
274	274	defendant's assistance, taking into consideration the prosecutor's
275	275	evaluation of the assistance rendered;
276	276	(2) the truthfulness, completeness and reliability of any information
277	277	or testimony provided by the defendant;
278	278	(3) the nature and extent of the defendant's assistance;
279	279	(4) any injury suffered, or any danger or risk of injury to the
280	280	defendant or the defendant's family resulting from such assistance; and
281	281	(5) the timeliness of the defendant's assistance.
282	282	Sec. 2. K.S.A. 22-2908 is hereby amended to read as follows: 22-
283	283	2908. (a) In determining whether diversion of a defendant is in the
284	284	interests of justice and of benefit to the defendant and the community, the
285	285	county or district attorney shall consider at least the following factors
286	286	among all factors considered:
287	287	(1) The nature of the crime charged and the circumstances
288	288	surrounding it;
289	289	(2) any special characteristics or circumstances of the defendant;
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333	333	(3) whether the defendant is a first-time offender and if the defendant
334	334	has previously participated in diversion, according to the certification of
335	335	the Kansas bureau of investigation or the division of vehicles of the
336	336	department of revenue;
337	337	(4) whether there is a probability that the defendant will cooperate
338	338	with and benefit from diversion;
339	339	(5) whether the available diversion program is appropriate to the
340	340	needs of the defendant;
341	341	(6) whether there is a probability that the defendant committed such
342	342	crime as a result of an injury, including major depressive disorder,
343	343	polytrauma, post-traumatic stress disorder or traumatic brain injury,
344	344	connected to service in a combat zone, as defined in section 112 of the
345	345	federal internal revenue code of 1986, in the armed forces of the United
346	346	States of America;
347	347	(7) if subsection (a)(6) applies to the defendant, whether there is a
348	348	probability that the defendant will cooperate with and benefit from
349	349	inpatient or outpatient treatment from any treatment facility or program
350	350	operated by the United States department of defense, the United States
351	351	department of veterans affairs or the Kansas national guard with the
352	352	consent of the defendant, as a condition of diversion;
353	353	(8) the impact of the diversion of the defendant upon the community;
354	354	(9) recommendations, if any, of the involved law enforcement
355	355	agency;
356	356	(10) recommendations, if any, of the victim;
357	357	(11) whether the defendant:
358	358	(A) Has physical custody of such offender's minor child or is a legal
359	359	guardian or custodian with physical custody of a minor child at the time
360	360	the county or district attorney is making the determination described in
361	361	this subsection; or
362	362	(B) had physical custody of such offender's minor child or was a
363	363	legal guardian or custodian with physical custody of a minor child at the
364	364	time the alleged crime was committed;
365	365	(12) provisions for restitution; and
366	366	(12)(13) any mitigating circumstances.
367	367	(b) A county or district attorney shall not enter into a diversion
368	368	agreement in lieu of further criminal proceedings on a complaint if the
369	369	complaint alleges that the defendant committed a:
370	370	(1) Violation of K.S.A. 8-1567, and amendments thereto, and the
371	371	defendant:
372	372	(A) Has previously participated in diversion upon a complaint
373	373	alleging a violation of that statute or an ordinance of a city in this state
374	374	which prohibits the acts prohibited by that statute;
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419	419	violation of that statute or a violation of a law of another state or of a
420	420	political subdivision of this or any other state, which law prohibits the acts
421	421	prohibited by that statute; or
422	422	(C) during the time of the alleged violation was involved in a motor
423	423	vehicle accident or collision resulting in personal injury to another person
424	424	or death;
425	425	(2) violation under chapter 8 of the Kansas Statutes Annotated, and
426	426	amendments thereto, and the defendant was a commercial driver's license
427	427	holder at the time the violation was committed or at any subsequent time
428	428	prior to being considered for diversion;
429	429	(3) class A or B felony or for crimes committed on or after July 1,
430	430	1993, an off-grid crime, a severity level 1, 2 or 3 felony for nondrug
431	431	crimes, a drug severity level 1 or 2 felony for drug crimes committed on or
432	432	after July 1, 1993, but prior to July 1, 2012, or a drug severity level 1, 2 or
433	433	3 felony committed on or after July 1, 2012; or
434	434	(4) domestic violence offense, as defined in K.S.A. 21-5111, and
435	435	amendments thereto, and the defendant has participated in two or more
436	436	diversions in the previous five year period upon complaints alleging a
437	437	domestic violence offense.
438	438	(c) A county or district attorney may enter into a diversion agreement
439	439	in lieu of further criminal proceedings on a complaint for violations of
440	440	article 10 of chapter 32 of the Kansas Statutes Annotated, and amendments
441	441	thereto, if such diversion carries the same penalties as the conviction for
442	442	the corresponding violations. If the defendant has previously participated
443	443	in one or more diversions for violations of article 10 of chapter 32 of the
444	444	Kansas Statutes Annotated, and amendments thereto, then each subsequent
445	445	diversion shall carry the same penalties as the conviction for the
446	446	corresponding violations.
447	447	(d) As used in this section, "major depressive disorder,"
448	448	"polytrauma," "post-traumatic stress disorder" and "traumatic brain injury"
449	449	mean the same as in K.S.A. 21-6630, and amendments thereto.
450	450	Sec. 3. K.S.A. 21-6815 and 22-2908 are hereby repealed.
451	451	Sec. 4. This act shall take effect and be in force from and after its
452	452	publication in the statute book.
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