Kansas Attorney General Opinion 1992-019

ROBERT T. STEPHAN
ATTORNEY GENERAL
February 12, 1992
ATTORNEY GENERAL OPINION NO. 92- 19
The Honorable Frank D. Gaines
State Senator, Sixteenth District
State Capitol, Room 140-N
Topeka, Kansas 66612
Re: Crimes and Punishment--Classification of Crimes and
Penalties; Sentencing--Classes of Felonies and
Terms of Imprisonment; Review and Reduction of
Previous Sentences; Retroactive Application
Synopsis: 1991 Senate Bill No. 479 neither increases nor
decreases punishment for crimes committed prior to
its enactment. It is not required that the bill
contain a provision permitting retroactive
application of its terms. Cited herein: 1991 S.B.
No. 479, §S 4, 5, 23.
Dear Senator Gaines:
As senator for the sixteenth district, you request our opinion
regarding the constitutionality of 1991 Senate Bill No. 479.
Specifically, you ask whether the bill must contain a
provision permitting retroactive application of its terms in
order to meet state and federal constitutional standards.
1991 Senate Bill No. 479 provides for a presumptive sentencing
guidelines system. Among the features of the bill are grids
to be consulted for determining the sentences of convicted
persons. 1991 S.B. 479, §§ 4, 5. A new classification scheme
for crimes is also established. Pursuant to section 23 of the
bill, the presumptive sentencing guidelines system is

inapplicable to crimes committed prior to July 1, 1992.
Prosecutions for crimes committed prior to July 1, 1992, are
to be governed, prosecuted and punished under the laws
existing at the time such crimes were committed. 1991 S.B.
479, § 23.
Statutes are frequently adopted that change the nature,
degree, or kind of penalty or punishment to be imposed for the
commission of a criminal act. 21 Am.Jur.2d Criminal Law,
§ 590 (1981). Thus, the mode or place of confinement of a
prisoner, the length of imprisonment, or the time or method of
execution may be altered by statute. Id. Provisions of
this kind are valid, except as they operate to increase or
enhance punishment for crimes committed before their
enactment. Id. The punishment may be lessened, but never
increased, as against anyone, for a crime already committed,
and statutes which so aggravate the punishment come within the
prohibition as to ex post facto laws. 16A Am.Jur.2d
Constitutional Law, § 643 (1979).
At common law, where a criminal statute is amended, lessening
the punishment, a convicted person is entitled to the benefit
of the new act although the offense was committed prior to
enactment of the new act. Moorehead v. Hunter, 198 F.2d
52, 53 (C.A. 10 Cir. 1952). This principle applies only
where there is no general saving statute or a specific saving
clause in the repealing statute. Id.
A number of the sections of 1991 Senate Bill No. 479 contain
provisions stating that the sections are applicable only to
crimes committed on or after July 1, 1992. See, i.e. 1991
S.B. 479, §§ 4, 5. Also, section 23 of the bill states that
"the provisions of this act creating a presumptive sentencing
guidelines system have no application to crimes committed
prior to July 1, 1992." Because of such provisions, 1991 S.B.
479 neither increases nor decreases punishment for crimes
committed prior to its enactment. It is not required that
1991 S.B. 479 contain a provision permitting retroactive
application of its terms.
Very truly yours,
Robert T. Stephan
Attorney General of Kansas
Richard b. Smith
Assistant Attorney General
RTS:JLM:RDS:jm