“Substitute for SB 458”

 

 

Session of 2008

Substitute for SENATE BILL No. 458

By Committee on Federal and State Affairs

3-12

AN ACT enacting the Kansas immigration enforcement and reform act;

amending K.S.A. 21-3446, 21-3447, 21-4643, 22-4902 and 22-4906 and

K.S.A. 2007 Supp. 38-2361, 60-4104, 75-451, 75-452 and 75-453 and

repealing the existing sections.

Be it enacted by the Legislature of the State of Kansas:

New Section 1. As used in the Kansas immigration enforcement and

reform act:

(a) ‘‘Alien’’ means any person who is not a citizen or national of the

United States, as described in Title 8, Section 1101 of the United States

Code, et seq., and amendments thereto.

(b) ‘‘Business entity’’ means any person or group of persons perform-

ing or engaging in any activity, enterprise, profession or occupation for

gain, benefit, advantage or livelihood, whether for profit or not-for-profit.

‘‘Business entity’’ shall not include an individual employing casual do-

mestic labor.

(c) ‘‘Unauthorized alien’’ means an alien who is not authorized to

work in the United States, as defined in 8 U.S.C. 1324a(h)(3).

(d) ‘‘E-verify’’ means the electronic verification of employment au-

thorization program of the illegal immigration reform and immigrant re-

sponsibility act of 1996, P.L. 104-208, division C, section 403(a); 8 U.S.C.

1324(a), and operated by the United States department of homeland se-

curity, or its successor program.

New Sec. 2. (a) An alien who is not lawfully present in the United

States shall not be eligible to receive any state or local public benefit from

any state, county or local government entity in the state of Kansas, except

for state or local public benefits that are required to be offered by federal

law.

(b) For the purposes of this section, ‘‘public benefit’’ includes: Any

grant, contract, loan or license provided by an agency of state or local

government; or any retirement, welfare, health, disability, housing, post-

secondary education, food assistance or unemployment benefit under

which payments, assistance, credits or reduced rates.

‘‘Public benefit’’ shall not include reduced fees or tuition provided un-

der K.S.A. 2007 Supp. 76-731a, and amendments thereto.

 

Sub. SB 458

2

New Sec. 3. All state officials, agencies and personnel shall fully com-

ply with, and, to the full extent permitted by law, support the enforcement

of federal law prohibiting the entry into, presence or residence in the

United States of aliens in violation of federal immigration law.

New Sec. 4. Sections 1 through 3, and amendments thereto, shall be

known and may be cited as the Kansas immigration enforcement and

reform act.

New Sec. 5. (a) In the state of Kansas, it shall be unlawful for a

business entity to knowingly engage in a pattern or practice of hiring,

recruiting or referring for a fee for employment an unauthorized alien.

(b) Upon finding probable cause to believe a violation of this section

has occurred, the attorney general may bring a civil suit in district court

to enforce this section except that no such suit shall be filed against a

business entity who participated in the federal e-verify system, if such

business entity provides documentation that such system was used prior

to the hiring of the specific persons alleged to be unauthorized aliens and

that such system did not raise concerns about such persons being unau-

thorized aliens.

(c) If the district court, after conducting a trial, finds a business entity

to be in violation of this section, the court shall enter an injunction per-

manently enjoining the business entity from further violation of this

section.

(d) If a district court, after notice and hearing finds a business entity

to be in violation of a permanent injunction issued pursuant to subsection

(c), the court shall order the business entity to appear and show cause

why such business entity should not be held in contempt.

(e) Any business entity named as a defendant in a suit brought under

authority of this section may, as an affirmative defense to such charge,

plead and prove that the business entity properly completed an I-9 form

as required by federal law in regard to the hiring of the person or persons

alleged to be unauthorized aliens.

New Sec. 6. (a) There is hereby established within the office of the

attorney general an illegal immigration enforcement division.

(b) The illegal immigration enforcement division shall be responsible

for the investigation and enforcement of the criminal and civil prohibi-

tions established under this act, the provisions of K.S.A. 21-3446, 21-3447

and 21-4409, and amendments thereto, and sections 7 and 8, and amend-

ments thereto.

(c) The attorney general shall have authority to prosecute any civil or

criminal violation under this act.

New Sec. 7. (a) Employment identity fraud is willfully presenting to

an employer false or misleading identification documents for the purpose

of obtaining employment in the state of Kansas.

 

 

43Sub. SB 458

3

(b) Employment identity fraud is a severity level 8, nonperson felony.

(c) This section shall be part of and supplemental to the Kansas crim-

inal code.

New Sec. 8. (a) Coercing employment is labor or services that are

performed or provided by another person and that are obtained or main-

tained through any of the following:

(1) Causing or threatening to cause serious physical injury to any

person;

(2) physically restraining or threatening to physically restrain another

person;

(3) abusing or threatening to abuse the law or legal process;

(4) threatening to withhold food, lodging or clothing; or

(5) knowingly destroying, concealing, removing, confiscating or pos-

sessing any actual or purported passport or other immigration document,

or any other actual or purported government identification document, of

another person.

(b) Coercing employment is a severity level 9, person felony.

(c) This section shall be part of and supplemental to the Kansas crim-

inal code.

New Sec. 9. (a) The sentence of any person who is convicted of vi-

olating any criminal statute in this state shall not be subject to statutory

provisions for suspended sentence, conditional release, community serv-

ice or probation, if such person’s presence in the United States is in

violation of federal immigration laws.

(b) The provisions of this section shall apply to crimes committed

after July 1, 2008.

(c) This section shall be part of and supplemental to the Kansas crim-

inal code.

Sec. 10. K.S.A. 21-3446 is hereby amended to read as follows: 21-

3446. (a) Human trafficking is:

(1) Recruiting, harboring, transporting, providing or obtaining, by any

means, another person knowing that force, fraud, threat or coercion will

be used to cause the person to engage in forced labor or involuntary

servitude; or The recruitment, harboring, transportation, provision or obtaining

of a person for labor or services, through the use of force, fraud

or coercion for the purpose of subjecting the person to involuntary servitude

or forced labor;

(2) benefitting financially or by receiving anything of value from par-

ticipation in a venture that has engaged in acts set forth in subsection (a)

paragraph (1). or (3); or

(3) knowingly transporting or assisting in the transporting of any

person into this state who is not lawfully present in the United States.

(b) Human trafficking is a severity level 2, person felony.

 

 

Sub. SB 458

4

(c) This section shall be part of and supplemental to the Kansas crim-

inal code.

Sec. 11. K.S.A. 21-3447 is hereby amended to read as follows: 21-

3447. (a) Aggravated human trafficking is:(1) Human trafficking, as defined in K.S.A. 21-3446, and amend-

ments thereto:

(A) Involving the commission or attempted commission of kidnap-

ping, as defined in K.S.A 21-3420, and amendments thereto;

(B) committed in whole or in part for the purpose of the sexual grat-

ification of the defendant or another; or

(C) resulting in a death; or

(2) recruiting, harboring, transporting, providing or obtaining, by any

means, a person under 18 years of age knowing that the person, with or

without force, fraud, threat or coercion, will be used to engage in forced

labor, involuntary servitude or sexual gratification of the defendant or

another.

(b) Except as provided further, aggravated human trafficking is a se-

verity level 1, person felony. When the offender is 18 years of age or

older, aggravated human trafficking, if the victim is less than 14 years of

age, is an off-grid person felony.

(c) This section shall be part of and supplemental to the Kansas crim-

inal code.

Sec. 12. K.S.A. 21-4643 is hereby amended to read as follows: 21-

4643. (a) (1) Except as provided in subsection (b) or (d), a defendant who

is 18 years of age or older and is convicted of the following crimes com-

mitted on or after July 1, 2006, shall be sentenced to a term of impris-

onment for life with a mandatory minimum term of imprisonment of not

less than 25 years unless the court determines that the defendant should

be sentenced as determined in paragraph (2):

(A) Aggravated human trafficking, as defined in K.S.A. 21-3447, and

amendments thereto, if the victim is less than 14 years of age;

(B) rape, as defined in subsection (a)(2) of K.S.A. 21-3502, and

amendments thereto;

(C) aggravated indecent liberties with a child, as defined in subsec-

tion (a)(3) of K.S.A. 21-3504, and amendments thereto;

(D) aggravated criminal sodomy, as defined in subsection (a)(1) or

(a)(2) of K.S.A. 21-3506, and amendments thereto;

(E) promoting prostitution, as defined in K.S.A. 21-3513, and amend-

ments thereto, if the prostitute is less than 14 years of age;

(F) sexual exploitation of a child, as defined in subsection (a)(5) or

(a)(6) of K.S.A. 21-3516, and amendments thereto; and

(G) an attempt, conspiracy or criminal solicitation, as defined in

K.S.A. 21-3301, 21-3302 or 21-3303, and amendments thereto, of an of-

 

 

. SB 458

5

fense defined in paragraphs (A) through (F).

(2) The provision of paragraph (1) requiring a mandatory minimum

term of imprisonment of not less than 25 years shall not apply if the court

finds:

(A) The defendant is an aggravated habitual sex offender and sen-

tenced pursuant to K.S.A. 21-4642, and amendments thereto; or

(B) the defendant, because of the defendant’s criminal history clas-

sification, is subject to presumptive imprisonment pursuant to the sen-

tencing guidelines grid for nondrug crimes and the sentencing range ex-

ceeds 300 months. In such case, the defendant is required to serve a

mandatory minimum term equal to the sentence established pursuant to

the sentencing range.

(b) (1) On and after July 1, 2006, if a defendant who is 18 years of

age or older is convicted of a crime listed in subsection (a)(1) and such

defendant has previously been convicted of a crime listed in subsection

(a)(1), a crime in effect at any time prior to the effective date of this act

which is substantially the same as a crime listed in subsection (a)(1) or a

crime under a law of another jurisdiction which is substantially the same

as a crime listed in subsection (a)(1), the court shall sentence the de-

fendant to a term of imprisonment for life with a mandatory minimum

term of imprisonment of not less than 40 years. The provisions of this

paragraph shall not apply to a crime committed under K.S.A. 21-3522,

and amendments thereto, or a crime under a law of another jurisdiction

which is substantially the same as K.S.A. 21-3522, and amendments

thereto.

(2) The provision of paragraph (1) requiring a mandatory minimum

term of imprisonment of not less than 40 years shall not apply if the court

finds:

(A) The defendant is an aggravated habitual sex offender and sen-

tenced pursuant to K.S.A. 21-4642, and amendments thereto; or

(B) the defendant, because of the defendant’s criminal history clas-

sification, is subject to presumptive imprisonment pursuant to the sen-

tencing guidelines grid for nondrug crimes and the sentencing range ex-

ceeds 480 months. In such case, the defendant is required to serve a

mandatory minimum term equal to the sentence established pursuant to

the sentencing range.

(c) When a person is sentenced pursuant to subsection (a) or (b),

such person shall be sentenced to a mandatory minimum term of im-

prisonment of not less than 25 years, 40 years or be sentenced as deter-

mined in subsection (a)(2) or subsection (b)(2), whichever is applicable,

and shall not be eligible for probation or suspension, modification or

reduction of sentence. In addition, a person sentenced pursuant to this

section shall not be eligible for parole prior to serving such mandatory

 

 

Sub. SB 458

6

term of imprisonment, and such imprisonment shall not be reduced by

the application of good time credits.

(d) On or after July 1, 2006, for a first time conviction of an offense

listed in paragraph (a)(1), the sentencing judge shall impose the manda-

tory minimum term of imprisonment provided by subsection (a), unless

the judge finds substantial and compelling reasons, following a review of

mitigating circumstances, to impose a departure. If the sentencing judge

departs from such mandatory minimum term of imprisonment, the judge

shall state on the record at the time of sentencing the substantial and

compelling reasons for the departure. The departure sentence shall be

the sentence pursuant to the sentencing guidelines act, K. S. A. 21-4701

et seq., and amendments thereto, and no sentence of a mandatory min-

imum term of imprisonment shall be imposed hereunder. as used in this

subsection, mitigating circumstances shall include, but are not limited to,

the following:

(1) The defendant has no significant history of prior criminal activity.

(2) The crime was committed while the defendant was under the

influence of extreme mental or emotional disturbances.

(3) The victim was an accomplice in the crime committed by another

person, and the defendant’s participation was relatively minor.

(4) The defendant acted under extreme distress or under the sub-

stantial domination of another person.

(5) The capacity of the defendant to appreciate the criminality of the

defendant’s conduct or to conform the defendant’s conduct to the

requirements of law was substantially impaired.

(6) The age of the defendant at the time of the crime.

Sec. 13. K.S.A. 22-4902 is hereby amended to read as follows: 22-

4902. As used in this act, unless the context otherwise requires:

(a) ‘‘Offender’’ means: (1) A sex offender as defined in subsection (b);

(2) a violent offender as defined in subsection (d);

(3) a sexually violent predator as defined in subsection (f);

(4) any person who, on and after the effective date of this act, is

convicted of any of the following crimes when the victim is less than 18

years of age:

(A) Kidnapping as defined in K.S.A. 21-3420 and amendments

thereto, except by a parent;

(B) aggravated kidnapping as defined in K.S.A. 21-3421 and amend-

ments thereto; or

(C) criminal restraint as defined in K.S.A. 21-3424 and amendments

thereto, except by a parent;

(5) any person convicted of any of the following criminal sexual con-

duct if one of the parties involved is less than 18 years of age:

(A) Adultery as defined by K.S.A. 21-3507, and amendments thereto;

 

. SB 458

7

(B) criminal sodomy as defined by subsection (a)(1) of K.S.A. 21-

3505, and amendments thereto;

(C) promoting prostitution as defined by K.S.A. 21-3513, and amend-

ments thereto;

(D) patronizing a prostitute as defined by K.S.A. 21-3515, and

amendments thereto;

(E) lewd and lascivious behavior as defined by K.S.A. 21-3508, and

amendments thereto; or

(F) unlawful sexual relations as defined by K.S.A. 21-3520, and

amendments thereto;

(6) any person who has been required to register under any federal,

military or other state’s law or is otherwise required to be registered;

(7) any person who, on or after July 1, 2006, is convicted of any person

felony and the court makes a finding on the record that a deadly weapon

was used in the commission of such person felony;

(8) any person who has been convicted of an offense in effect at any

time prior to the effective date of this act, that is comparable to any crime

defined in subsection (4), (5), (7) or (11), or any federal, military or other

state conviction for an offense that under the laws of this state would be

an offense defined in subsection (4), (5), (7) or (11);

(9) any person who has been convicted of an attempt, conspiracy or

criminal solicitation, as defined in K.S.A. 21-3301, 21-3302 or 21-3303

and amendments thereto, of an offense defined in subsection (4), (5), (7)

or (10);

(10) any person who has been convicted of aggravated human traf-

ficking as defined in K.S.A. 21-3447, and amendments thereto; or

(11) any person who has been convicted of: (A) Unlawful manufac-

ture or attempting such of any controlled substance as defined by K.S.A.

65-4159, and amendments thereto, unless the court makes a finding on

the record that the manufacturing or attempting to manufacture such

controlled substance was for such person’s personal use;

(B) possession of ephedrine, pseudoephedrine, red phosphorus, lith-

ium metal, sodium metal, iodine, anhydrous ammonia, pressurized am-

monia or phenylpropanolamine, or their salts, isomers or salts of isomers

with intent to use the product to manufacture a controlled substance as

defined by K.S.A. 65-7006, and amendments thereto, unless the court

makes a finding on the record that the possession of such product was

intended to be used to manufacture a controlled substance for such per-

son’s personal use; or

(C) K.S.A. 65-4161, and amendments thereto.

Convictions which result from or are connected with the same act, or

result from crimes committed at the same time, shall be counted for the

purpose of this section as one conviction. Any conviction set aside pur-

 

 

 

Sub. SB 458

8

suant to law is not a conviction for purposes of this section. A conviction

from another state shall constitute a conviction for purposes of this

section.

(b) ‘‘Sex offender’’ includes any person who, after the effective date

of this act, is convicted of any sexually violent crime set forth in subsection

(c) or is adjudicated as a juvenile offender for an act which if committed

by an adult would constitute the commission of a sexually violent crime

set forth in subsection (c).

(c) ‘‘Sexually violent crime’’ means:

(1) Rape as defined in K.S.A. 21-3502 and amendments thereto;

(2) indecent liberties with a child as defined in K.S.A. 21-3503 and

amendments thereto;

(3) aggravated indecent liberties with a child as defined in K.S.A. 21-

3504 and amendments thereto;

(4) criminal sodomy as defined in subsection (a)(2) and (a)(3) of

K.S.A. 21-3505 and amendments thereto;

(5) aggravated criminal sodomy as defined in K.S.A. 21-3506 and

amendments thereto;

(6) indecent solicitation of a child as defined by K.S.A. 21-3510 and

amendments thereto;

(7) aggravated indecent solicitation of a child as defined by K.S.A.

21-3511 and amendments thereto;

(8) sexual exploitation of a child as defined by K.S.A. 21-3516 and

amendments thereto;

(9) sexual battery as defined by K.S.A. 21-3517 and amendments

thereto;

(10) aggravated sexual battery as defined by K.S.A. 21-3518 and

amendments thereto;

(11) aggravated incest as defined by K.S.A. 21-3603 and amendments

thereto; or

(12) any conviction for an offense in effect at any time prior to the

effective date of this act, that is comparable to a sexually violent crime as

defined in subparagraphs (1) through (11), or any federal, military or

other state conviction for an offense that under the laws of this state would

be a sexually violent crime as defined in this section;

(13) an attempt, conspiracy or criminal solicitation, as defined in

K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, of a sex-

ually violent crime, as defined in this section; or

(14) any act which at the time of sentencing for the offense has been

determined beyond a reasonable doubt to have been sexually motivated.

As used in this subparagraph, ‘‘sexually motivated’’ means that one of the

purposes for which the defendant committed the crime was for the pur-

pose of the defendant’s sexual gratification.

 

 

 

Sub. SB 458

9

(d) ‘‘Violent offender’’ includes any person who, after the effective

date of this act, is convicted of any of the following crimes:

(1) Capital murder as defined by K.S.A. 21-3439 and amendments

thereto;

(2) murder in the first degree as defined by K.S.A. 21-3401 and

amendments thereto;

(3) murder in the second degree as defined by K.S.A. 21-3402 and

amendments thereto;

(4) voluntary manslaughter as defined by K.S.A. 21-3403 and amend-

ments thereto;

(5) involuntary manslaughter as defined by K.S.A. 21-3404 and

amendments thereto; or

(6) any conviction for an offense in effect at any time prior to the

effective date of this act, that is comparable to any crime defined in this

subsection, or any federal, military or other state conviction for an offense

that under the laws of this state would be an offense defined in this

subsection; or

(7) an attempt, conspiracy or criminal solicitation, as defined in

K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, of an of-

fense defined in this subsection.

(e) ‘‘Law enforcement agency having jurisdiction’’ means the sheriff

of the county in which the offender expects to reside upon the offender’s

discharge, parole or release.

(f) ‘‘Sexually violent predator’’ means any person who, on or after July

1, 2001, is found to be a sexually violent predator pursuant to K.S.A. 59-

29a01 et seq. and amendments thereto.

(g) ‘‘Nonresident student or worker’’ includes any offender who

crosses into the state or county for more than 14 days, or for an aggregate

period exceeding 30 days in a calendar year, for the purposes of employ-

ment, with or without compensation, or to attend school as a student.

(h) ‘‘Aggravated offenses’’ means engaging in sexual acts involving

penetration with victims of any age through the use of force or the threat

of serious violence, or engaging in sexual acts involving penetration with

victims less than 14 years of age, and includes the following offenses:

(1) Rape as defined in subsection (a)(1)(A) and subsection (a)(2) of

K.S.A. 21-3502, and amendments thereto;

(2) aggravated criminal sodomy as defined in subsection (a)(1) and

subsection (a)(3)(A) of K.S.A. 21-3506, and amendments thereto; and

(3) any attempt, conspiracy or criminal solicitation, as defined in

K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, of an of-

fense defined in this subsection.

(i) ‘‘Institution of higher education’’ means any post-secondary school

under the supervision of the Kansas board of regents.

 

 

 

Sub. SB 458

10

Sec. 14. K.S.A. 22-4906 is hereby amended to read as follows: 22-

4906. (a) Except as provided in subsection (d), any person required to

register as provided in this act shall be required to register: (1) Upon the

first conviction of a sexually violent crime as defined in subsection (c) of

K.S.A. 22-4902, and amendments thereto, any offense as defined in sub-

section (a) of K.S.A. 22-4902, and amendments thereto, or any offense as

defined in subsection (d) of K.S.A. 22-4902, and amendments thereto, if

not confined, for a period of 10 years after conviction, or, if confined, for

a period of 10 years after paroled, discharged or released, whichever date

is most recent. The ten-year period shall not apply to any person while

the person is incarcerated in any jail or correctional facility. The ten-year

registration requirement does not include any time period when any per-

son who is required to register under this act knowingly or willfully fails

to comply with the registration requirement; or (2) upon a second or

subsequent conviction for such person’s lifetime.

(b) Upon the first conviction, liability for registration terminates, if

not confined, at the expiration of 10 years from the date of conviction,

or, if confined, at the expiration of 10 years from the date of parole,

discharge or release, whichever date is most recent. The ten-year period

shall not apply to any person while the person is incarcerated in any jail

or correctional facility. The ten-year registration requirement does not

include any time period when any person who is required to register

under this act knowingly or willfully fails to comply with the registration

requirement. Liability for registration does not terminate if the convicted

offender again becomes liable to register as provided by this act during

that period.

(c) Any person who has been convicted of an aggravated offense shall

be required to register for such person’s lifetime.

(d) Any person who has been convicted of any of the following of-

fenses shall be required to register for such person’s lifetime:

(1) Aggravated human trafficking, as defined in K.S.A. 21-3447, and

amendments thereto, if the victim is less than 14 years of age;

(2) rape, as defined in subsection (a)(2) of K.S.A. 21-3502, and

amendments thereto;

(3) aggravated indecent liberties with a child, as defined in subsection

(a)(3) of K.S.A. 21-3504, and amendments thereto;

(4) aggravated criminal sodomy, as defined in subsection (a)(1) or

(a)(2) of K.S.A. 21-3506, and amendments thereto;

(5) promoting prostitution, as defined in K.S.A. 21-3513, and amend-

ments thereto, if the prostitute is less than 14 years of age; or

(6) sexual exploitation of a child, as defined in subsection (a)(5) or

(a)(6) of K.S.A. 21-3516, and amendments thereto.

(e) Any person who has been declared a sexually violent predator

 

 SB 458

11

pursuant to K.S.A. 59-29a01 et seq., and amendments thereto, shall reg-

ister for such person’s lifetime.

(f) Any nonresident worker shall register for the duration of such

person’s employment. The provisions of this subsection are in addition to

subsections (a) and (b).

(g) Any nonresident student shall register for the duration of such

person’s attendance at a school or educational institution as provided in

this act. The provisions of this subsection are in addition to subsections

(a) and (b).

(h) (1) Notwithstanding any other provisions of this section, a person

who is adjudicated as a juvenile offender for an act which if committed

by an adult would constitute the commission of a sexually violent crime

set forth in subsection (c) of K.S.A. 22-4902, and amendments thereto,

and such crime is an off-grid felony or a felony ranked in severity level 1

of the nondrug grid as provided in K.S.A. 21-4704, and amendments

thereto, shall be required to register until such person reaches 18 years

of age, at the expiration of five years from the date of adjudication or, if

confined, from release from confinement, whichever date occurs later.

The five-year period shall not apply to any person while that person is

incarcerated in any jail, juvenile facility or correctional facility. The five-

year registration requirement does not include any time period when any

person who is required to register under this act knowingly or willfully

fails to comply with the registration requirement.

(2) (A) A person who is adjudicated as a juvenile offender for an act

which if committed by an adult would constitute the commission of a

sexually violent crime set forth in subsection (c) of K.S.A. 22-4902, and

amendments thereto, and such crime is not an off-grid felony or a felony

ranked in severity level 1 of the nondrug grid as provided in K.S.A. 21-

4704, and amendments thereto, may, by the court:

(i) Be required to register pursuant to the provisions of paragraph

(1);

(ii) not be required to register if the judge, on the record, finds sub-

stantial and compelling reasons therefor; or

(iii) be required to register with the sheriff pursuant to K.S.A. 22-

4904, and amendments thereto, but such registration information shall

not be open to inspection by the public or posted on any internet website,

as provided in K.S.A. 22-4909, and amendments thereto. If the court

requires the juvenile to register but such registration is not open to the

public, the juvenile shall provide a copy of such court order to the sheriff

at the time of registration. The sheriff shall forward a copy of such court

order to the Kansas bureau of investigation.

(B) If such juvenile offender violates a condition of release during

the term of the conditional release, the judge may require the juvenile

 

 

 

 

 

Sub. SB 458

12

offender to register pursuant to paragraph (1).

(3) Liability for registration does not terminate if the adjudicated of-

fender again becomes liable to register as provided by this act during the

required period.

(4) The provisions of paragraph (2)(A)(ii) shall apply to adjudications

on and after the effective date of this act and retroactively to adjudications

prior to July 1, 2007.

(i) Any person moving to the state of Kansas who has been convicted

in another state, and who was required to register under that state’s laws,

shall register for the same length of time required by that state or Kansas,

whichever length of time is longer. The provisions of this subsection shall

apply to convictions prior to June 1, 2006 and to persons who moved to

Kansas prior to June l, 2006.

Sec. 15. K.S.A. 2007 Supp. 38-2361 is hereby amended to read as

follows: 38-2361. (a) Upon adjudication as a juvenile offender pursuant

to K.S.A. 2007 Supp. 38-2356, and amendments thereto, modification of

sentence pursuant to K.S.A. 2007 Supp. 38-2367, and amendments

thereto, or violation of a condition of sentence pursuant to K.S.A. 2007

Supp. 38-2368, and amendments thereto, and subject to subsection (a)

of K.S.A. 2007 Supp. 38-2365, and amendments thereto, the court may

impose one or more of the following sentencing alternatives. In the event

that any sentencing alternative chosen constitutes an order authorizing or

requiring removal of the juvenile from the juvenile’s home and such find-

ings either have not previously been made or the findings are not or may

no longer be current, the court shall make determinations as required by

K.S.A. 2007 Supp. 38-2334 and 38-2335, and amendments thereto.

(1) Place the juvenile on probation through court services or com-

munity corrections for a fixed period, subject to terms and conditions the

court deems appropriate consistent with juvenile justice programs in the

community.

(2) Order the juvenile to participate in a community based program

available in such judicial district subject to the terms and conditions the

court deems appropriate. This alternative shall not be ordered with the

alternative in paragraph (12) and when ordered with the alternative in

paragraph (10) shall constitute a recommendation. Requirements per-

taining to child support may apply if custody is vested with other than a

parent.

(3) Place the juvenile in the custody of a parent or other suitable

person, subject to terms and conditions consistent with juvenile justice

programs in the community. This alternative shall not be ordered with

the alternative in paragraph (10) or (12). Requirements pertaining to child

support may apply if custody is vested with other than a parent.

(4) Order the juvenile to attend counseling, educational, mediation

 

Sub. SB 458

13

or other sessions, or to undergo a drug evaluation pursuant to subsection

(b).

(5) Suspend or restrict the juvenile’s driver’s license or privilege to

operate a motor vehicle on the streets and highways of this state pursuant

to subsection (c).

(6) Order the juvenile to perform charitable or community service

work.

(7) Order the juvenile to make appropriate reparation or restitution

pursuant to subsection (d).

(8) Order the juvenile to pay a fine not exceeding $1,000 pursuant to

subsection (e).

(9) Place the juvenile under a house arrest program administered by

the court pursuant to K.S.A. 21-4603b, and amendments thereto.

(10) Place the juvenile in the custody of the commissioner as provided

in K.S.A. 2007 Supp. 38-2365, and amendments thereto. This alternative

shall not be ordered with the alternative in paragraph (3) or (12). Except

for a mandatory drug and alcohol evaluation, when this alternative is or-

dered with alternatives in paragraphs (2), (4) and (9), such orders shall

constitute a recommendation by the court. Requirements pertaining to

child support shall apply under this alternative.

(11) Commit the juvenile to a sanctions house for a period no longer

than 28 days subject to the provisions of subsection (f).

(12) Commit the juvenile directly to the custody of the commissioner

for a period of confinement in a juvenile correctional facility and a period

of aftercare pursuant to K.S.A. 2007 Supp. 38-2369, and amendments

thereto. The provisions of K.S.A. 2007 Supp. 38-2365, and amendments

thereto, shall not apply to juveniles committed pursuant to this provision.

This alternative may be ordered with the alternative in paragraph (7).

Requirements pertaining to child support shall apply under this

alternative.

(b) If the court orders the juvenile to attend counseling, educational,

mediation or other sessions, or to undergo a drug and alcohol evaluation

pursuant to subsection (a)(4), the following provisions apply:

(1) The court may order the juvenile offender to participate in coun-

seling or mediation sessions or a program of education, including place-

ment in an alternative educational program approved by a local school

board. The costs of any counseling or mediation may be assessed as ex-

penses in the case. No mental health center shall charge a fee for court-

ordered counseling greater than what the center would have charged the

person receiving the counseling if the person had requested counseling

on the person’s own initiative. No mediator shall charge a fee for court-

ordered mediation greater than what the mediator would have charged

the person participating in the mediation if the person had requested

 

 

 

 

Sub. SB 458

14

mediation on the person’s own initiative. Mediation may include the vic-

tim but shall not be mandatory for the victim; and

(2) if the juvenile has been adjudicated to be a juvenile by reason of

a violation of a statute that makes such a requirement, the court shall

order and, if adjudicated for any other offense, the court may order the

juvenile to submit to and complete a drug and alcohol evaluation by a

community-based drug and alcohol safety action program certified pur-

suant to K.S.A. 8-1008, and amendments thereto, and to pay a fee not to

exceed the fee established by that statute for such evaluation. The court

may waive the mandatory evaluation if the court finds that the juvenile

completed a drug and alcohol evaluation, approved by the community-

based alcohol and drug safety action program, within 12 months before

sentencing. If the evaluation occurred more than 12 months before sen-

tencing, the court shall order the juvenile to resubmit to and complete

the evaluation and program as provided herein. If the court finds that the

juvenile and those legally liable for the juvenile’s support are indigent,

the court may waive the fee. In no event shall the fee be assessed against

the commissioner or the juvenile justice authority nor shall the fee be

assessed against the secretary of social and rehabilitation services or the

department of social and rehabilitation services if the juvenile is in the

secretary’s care, custody and control.

(c) If the court orders suspension or restriction of a juvenile of-

fender’s driver’s license or privilege to operate a motor vehicle on the

streets and highways of this state pursuant to subsection (a)(5), the fol-

lowing provisions apply:

(1) The duration of the suspension ordered by the court shall be for

a definite time period to be determined by the court. Upon suspension

of a license pursuant to this subsection, the court shall require the juvenile

offender to surrender the license to the court. The court shall transmit

the license to the division of motor vehicles of the department of revenue,

to be retained until the period of suspension expires. At that time, the

licensee may apply to the division for return of the license. If the license

has expired, the juvenile offender may apply for a new license, which shall

be issued promptly upon payment of the proper fee and satisfaction of

other conditions established by law for obtaining a license unless another

suspension or revocation of the juvenile offender’s privilege to operate a

motor vehicle is in effect. As used in this subsection, ‘‘highway’’ and

‘‘street’’ have the meanings provided by K.S.A. 8-1424 and 8-1473, and

amendments thereto. Any juvenile offender who does not have a driver’s

license may have driving privileges revoked. No Kansas driver’s license

shall be issued to a juvenile offender whose driving privileges have been

revoked pursuant to this section for a definite time period to be deter-

mined by the court; and

 

 

 

Sub. SB 458

15

(2) in lieu of suspending a juvenile offender’s driver’s license or priv-

ilege to operate a motor vehicle on the highways of this state, the court

may enter an order which places conditions on the juvenile offender’s

privilege of operating a motor vehicle on the streets and highways of this

state, a certified copy of which the juvenile offender shall be required to

carry any time the juvenile offender is operating a motor vehicle on the

streets and highways of this state. The order shall prescribe a definite

time period for the conditions imposed. Upon entering an order restrict-

ing a juvenile offender’s license, the court shall require the juvenile of-

fender to surrender such juvenile offender’s license to the court. The

court shall transmit the license to the division of vehicles, together with

a copy of the order. Upon receipt thereof, the division of vehicles shall

issue without charge a driver’s license which shall indicate on its face that

conditions have been imposed on the juvenile offender’s privilege of op-

erating a motor vehicle and that a certified copy of the order imposing

the conditions is required to be carried by the juvenile offender when

operating a motor vehicle on the streets and highways of this state. If the

juvenile offender is a nonresident, the court shall cause a copy of the

order to be transmitted to the division and the division shall forward a

copy of it to the motor vehicle administrator of the juvenile offender’s

state of issuance. The court shall furnish to any juvenile offender whose

driver’s license has had conditions imposed on it under this section a copy

of the order, which shall be recognized as a valid Kansas driver’s license

until the division issues the restricted license provided for in this subsec-

tion. Upon expiration of the period of time for which conditions are im-

posed pursuant to this subsection, the juvenile offender may apply to the

division for the return of the license previously surrendered by the ju-

venile offender. In the event the license has expired, the juvenile offender

may apply to the division for a new license, which shall be issued im-

mediately by the division upon payment of the proper fee and satisfaction

of the other conditions established by law unless such juvenile offender’s

privilege to operate a motor vehicle on the streets and highways of this

state has been suspended or revoked prior thereto. If any juvenile of-

fender violates any of the conditions imposed under this subsection, the

juvenile offender’s driver’s license or privilege to operate a motor vehicle

on the streets and highways of this state shall be revoked for a period as

determined by the court in which the juvenile offender is convicted of

violating such conditions.

(d) The following provisions apply to the court’s determination of

whether to order reparation or restitution pursuant to subsection (a)(7):

(1) The court shall order the juvenile to make reparation or restitu-

tion to the aggrieved party for the damage or loss caused by the juvenile

offender’s offense unless it finds compelling circumstances that would

 

 

 

Sub. SB 458

16

render a plan of reparation or restitution unworkable. If the court finds

compelling circumstances that would render a plan of reparation or res-

titution unworkable, the court shall enter such findings with particularity

on the record. In lieu of reparation or restitution, the court may order

the juvenile to perform charitable or social service for organizations per-

forming services for the community; and

(2) restitution may include, but shall not be limited to, the amount

of damage or loss caused by the juvenile’s offense. Restitution may be

made by payment of an amount fixed by the court or by working for the

parties sustaining loss in the manner ordered by the court. An order of

monetary restitution shall be a judgment against the juvenile that may be

collected by the court by garnishment or other execution as on judgments

in civil cases. Such judgment shall not be affected by the termination of

the court’s jurisdiction over the juvenile offender.

(e) If the court imposes a fine pursuant to subsection (a)(8), the fol-

lowing provisions apply:

(1) The amount of the fine may not exceed $1,000 for each offense.

The amount of the fine should be related to the seriousness of the offense

and the juvenile’s ability to pay. Payment of a fine may be required in a

lump sum or installments;

(2) in determining whether to impose a fine and the amount to be

imposed, the court shall consider that imposition of a fine is most appro-

priate in cases where the juvenile has derived pecuniary gain from the

offense and that imposition of a restitution order is preferable to impo-

sition of a fine; and

(3) any fine imposed by court shall be a judgment against the juvenile

that may be collected by the court by garnishment or other execution as

on judgments in civil cases. Such judgment shall not be affected by the

termination of the court’s jurisdiction over the juvenile.

(f) If the court commits the juvenile to a sanctions house pursuant to

subsection (a)(11), the following provisions shall apply:

(1) The court may order commitment for up to 28 days for the same

offense or violation of sentencing condition. The court shall review the

commitment every seven days and, may shorten the initial commitment

or, if the initial term is less than 28 days, may extend the commitment;

(2) if, in the sentencing order, the court orders a sanctions house

placement for a verifiable probation violation and such probation violation

occurs, the juvenile may immediately be taken to a sanctions house and

detained for no more than 48 hours, excluding Saturdays, Sundays and

holidays, prior to court review of the placement. The court and all parties

shall be notified of the sanctions house placement; and

(3) a juvenile over 18 years of age and less than 23 years of age at

sentencing shall be committed to a county jail, in lieu of a sanctions house,

 

 

Sub. SB 458

17

under the same time restrictions imposed by paragraph (1), but shall not

be committed to or confined in a juvenile detention facility.

(g) Any order issued by the judge pursuant to this section shall be in

effect immediately upon entry into the court’s minutes.

(h) In addition to the requirements of K.S.A. 2007 Supp. 38-2373,

and amendments thereto, if a person is under 18 years of age and con-

victed of a felony or adjudicated as a juvenile offender for an offense if

committed by an adult would constitute the commission of a felony, the

court shall forward a signed copy of the journal entry to the commissioner

within 30 days of final disposition.

(i) Except as further provided, if a juvenile has been adjudged to be

a juvenile offender for an offense that if committed by an adult would

constitute the commission of: (1) Aggravated human trafficking, as de-

fined in K.S.A. 2007 Supp. 21-3447, and amendments thereto, if the vic-

tim is less than 14 years of age; (2) rape, as defined in subsection (a)(2)

of K.S.A. 21-3502, and amendments thereto; (3) aggravated indecent lib-

erties with a child, as defined in subsection (a)(3) of K.S.A. 21-3504, and

amendments thereto; (4) aggravated criminal sodomy, as defined in sub-

section (a)(1) or (a)(2) of K.S.A. 21-3506, and amendments thereto; (5)

promoting prostitution, as defined in K.S.A. 21-3513, and amendments

thereto, if the prostitute is less than 14 years of age; (6) sexual exploitation

of a child, as defined in subsection (a)(5) or (a)(6) of K.S.A. 21-3516, and

amendments thereto; or (7) an attempt, conspiracy or criminal solicita-

tion, as defined in K.S.A. 21-3301, 21-3302 or 21-3303, and amendments

thereto, of an offense defined in parts (1) through (6); the court shall

issue an order prohibiting the juvenile from attending the attendance

center that the victim of the offense attends. If only one attendance center

exists, for which the victim and juvenile are eligible to attend, in the school

district where the victim and the juvenile reside, the court shall hear

testimony and take evidence from the victim, the juvenile, their families

and a representative of the school district as to why the juvenile should

or should not be allowed to remain at the attendance center attended by

the victim. After such hearing, the court may issue an order prohibiting

the juvenile from attending the attendance center that the victim of the

offense attends.

(j) The sentencing hearing shall be open to the public as provided in

K.S.A. 2007 Supp. 38-2353, and amendments thereto.

Sec. 16. K.S.A. 2007 Supp. 60-4104 is hereby amended to read as

follows: 60-4104. Conduct and offenses giving rise to forfeiture under this

act, whether or not there is a prosecution or conviction related to the

offense, are:

(a) All offenses which statutorily and specifically authorize forfeiture;

(b) violations of the uniform controlled substances act, K.S.A. 65-

 

 

Sub. SB 458

18

4101 et seq., and amendments thereto;

(c) theft which is classified as a felony violation pursuant to K.S.A.

21-3701, and amendments thereto, in which the property taken was

livestock;

(d) unlawful discharge of a firearm, K.S.A. 21-4219, and amendments

thereto;

(e) money laundering, as described in K.S.A. 65-4142, and amend-

ments thereto;

(f) gambling, as described in K.S.A. 21-4303, and amendmentsthereto, and commercial gambling, as described in K.S.A. 21-4304, and

amendments thereto;

(g) counterfeiting, as described in K.S.A. 2007 Supp. 21-3763, and

amendments thereto;

(h) violations of K.S.A. 2007 Supp. 21-4019, and amendments

thereto;

(i) medicaid fraud, as described in K.S.A. 21-3844 et seq., and amend-

ments thereto;

(j) an act or omission occurring outside this state, which would be a

violation in the place of occurrence and would be described in this section

if the act occurred in this state, whether or not it is prosecuted in any

state;

(k) an act or omission committed in furtherance of any act or omission

described in this section including any inchoate or preparatory offense,

whether or not there is a prosecution or conviction related to the act or

omission;

(l) any solicitation or conspiracy to commit any act or omission de-

scribed in this section, whether or not there is a prosecution or conviction

related to the act or omission;

(m) furtherance of terrorism or illegal use of weapons of mass de-

struction, K.S.A. 2007 Supp. 21-3451, and amendments thereto.;

(n) the commission of any felony by a person whose presence in the

United States is in violation of federal immigration laws; and

(o) human trafficking as described in K.S.A. 21-3446 or 21-3447, and

amendments thereto.

Sec. 17. K.S.A. 2007 Supp. 75-451 is hereby amended to read as

follows: 75-451. The legislature finds that persons attempting to escape

from actual or threatened domestic violence, sexual assault, human traf-

ficking or stalking frequently establish new addresses in order to prevent

their assailants or probable assailants from finding them. The purpose of

K.S.A. 2007 Supp. 75-451 to 75-458, inclusive, and amendments thereto,

is to enable state and local agencies to respond to requests for public

records without disclosing the location of a victim of domestic violence,

sexual assault, human trafficking or stalking, to enable interagency co-

 

 

 

Sub. SB 458

19

operation with the secretary of state in providing address confidentiality

for victims of domestic violence, sexual assault, human trafficking or stalk-

ing, and to enable state and local agencies to accept a program partici-

pant’s use of an address designated by the secretary of state as a substitute

mailing address.

Sec. 18. K.S.A. 2007 Supp. 75-452 is hereby amended to read as

follows: 75-452. The following words and phrases when used in K.S.A.

2007 Supp. 75-451 to 75-458, inclusive, and amendments thereto, shall

have the meanings respectively ascribed to them herein, unless the con-

text clearly requires otherwise:

(a) ‘‘Abuse’’ means:

(1) Causing or attempting to cause physical harm;

(2) placing another person in fear of imminent physical harm;

(3) causing another person to engage involuntarily in sexual relations

by force, threats or duress, or threatening to do so;

(4) engaging in mental abuse, which includes threats, intimidation

and acts designed to induce terror;

(5) depriving another person of necessary health care, housing or

food; or

(6) unreasonably and forcibly restraining the physical movement of

another.

(b) ‘‘Confidential address’’ means a residential street address, school

street address or work street address of an individual, as specified on the

individual’s application to be a program participant under K.S.A. 2007

Supp. 75-451 to 75-458, inclusive, and amendments thereto.

(c) ‘‘Confidential mailing address’’ means an address that is recog-

nized for delivery by the United States postal service.

(d) ‘‘Domestic violence’’ means abuse committed against a victim or

the victim’s spouse or dependent child by:

(1) A current or former spouse of the victim;

(2) a person with whom the victim shares parentage of a child in

common;

(3) a person who is cohabitating with, or has cohabitated with, the

victim;

(4) a person who is related by blood or marriage; or

(5) a person with whom the victim has or had a dating or engagement

relationship.

(e) ‘‘Program participant’’ means a person certified as a program par-

ticipant under K.S.A. 2007 Supp. 75-453, and amendments thereto.

(f) ‘‘Enrolling agent’’ means state and local agencies, law enforcement

offices, nonprofit agencies and any others designated by the secretary of

state that provide counseling and shelter services to victims of domestic

violence, sexual assault, human trafficking or stalking.

 

Sub. SB 458

20

(g) ‘‘Sexual assault’’ means an act which if committed in this state

would constitute any crime defined in article 35 of chapter 21 of the

Kansas Statutes Annotated.

(h) ‘‘Stalking’’ means an act which if committed in this state would

constitute ‘‘stalking’’ as defined by K.S.A. 60-31a01, and amendments

thereto.

(i) ‘‘Human trafficking’’ means an act which if committed in this statewould constitute the crime of human trafficking as defined by K.S.A. 21-

3446, and amendments thereto.

Sec. 19. K.S.A. 2007 Supp. 75-453 is hereby amended to read as

follows: 75-453. (a) An adult person, an adult family member residing

with the victim, a parent or guardian acting on behalf of a minor, or a

guardian acting on behalf of an incapacitated person, may apply by and

through an enrolling agent to have an address designated by the secretary

of state serve as the person’s address or the address of the minor or

incapacitated person. Program participants shall not apply directly to the

secretary of state. The secretary of state shall approve an application if it

is filed in the manner and on the form prescribed by the secretary of

state signed by the applicant and enrolling agent under penalty of perjury

and providing:

(1) A statement by the applicant that the applicant has good reason

to believe that the applicant, or the minor or incapacitated person on

whose behalf the application is made, is a victim of domestic violence,

sexual assault, human trafficking or stalking and:

(i) That the applicant fears for the applicant’s safety or the applicant’s

children’s safety or the safety of the minor or incapacitated person on

whose behalf the application is made; or

(ii) that by virtue of living with an enrolled program participant, the

applicant fears that the knowledge or publication of the applicants’ where-

abouts will put the enrolled participant in danger.

(2) A designation of the secretary of state as agent for purposes of

service of process and for the purpose of receipt of mail.

(3) The confidential mailing address where the applicant can be con-

tacted by the secretary of state, and the phone number or numbers where

the applicant can be called by the secretary of state.

(4) The confidential address or addresses that the applicant requests

not be disclosed for the reason that disclosure will increase the risk of

domestic violence, sexual assault, human trafficking or stalking.

(5) Evidence that the applicant or the minor or incapacitated person

on whose behalf the application is made, is a victim of domestic violence,

sexual assault, human trafficking or stalking, or is an adult family member

residing with the victim. This evidence may include any of the following:

(A) Law enforcement, court or other federal, state or local govern-

 

 

Sub. SB 458

21

ment records or files.

(B) Documentation from a public or private entity that provides as-

sistance to victims of domestic violence, sexual assault, human trafficking

or stalking.

(C) Documentation from a religious, medical or other professional

from whom the applicant has sought assistance in dealing with the alleged

domestic violence, sexual assault, human trafficking or stalking.

(D) Other forms of evidence as determined by the secretary of state.

(6) A statement of whether there are any existing court orders in-

volving the applicant for child support, child custody or child visitation

and whether there are any active court actions involving the applicant for

child support, child custody or child visitation, the name and address of

legal counsel of record and the last known address of the other parent or

parents involved in those court orders or court actions.

(7) The signature of the applicant and of any individual or represen-

tative of any enrolling agent who assisted in the preparation of the appli-

cation, and the date on which the applicant signed the application.

(b) Applications shall be filed in accordance with procedures pre-

scribed by the secretary of state.

(c) Upon filing a properly completed application, the secretary of

state shall certify the applicant as a program participant. Applicants shall

be certified for four years following the date of filing unless the certifi-

cation is withdrawn or invalidated before that date. The secretary of state

shall by rule and regulation establish a renewal procedure.

(d) Upon certification in the program, in any case where there are

court orders or court actions identified in subsection (a)(6), the secretary

of state shall, within 10 days, notify the other parent or parents of the

address designated by the secretary of state for the program participant

and the designation of the secretary of state as agent for purpose of service

of process. The notice shall be given by mail, return receipt requested,

postage prepaid, to the last known address of the other parent to be

notified. A copy shall also be sent to that parent’s counsel of record.

(e) A person who falsely attests in an application that disclosure of

the applicant’s address would endanger the applicant’s safety or the safety

of the applicant’s children or the minor or incapacitated person on whose

behalf the application is made, or who knowingly provides false or incor-

rect information upon making an application, shall be punishable under

K.S.A. 21-3711, and amendments thereto, or other applicable statutes.

New Sec. 20. If any provisions of this act or the application thereof

to any person or circumstances is held invalid, the invalidity shall not

affect other provisions or applications of the act which can be given effect

without the invalid provisions or application, and to this end the provisions

of this act are severable.

 

Sub. SB 458

22

Sec. 21. K.S.A. 21-3446, 21-3447, 21-4643, 22-4902 and 22-4906 and

K.S.A. 2007 Supp. 38-2361, 60-4104, 75-451, 75-452 and 75-453 are

hereby repealed.

Sec. 22. This act shall take effect and be in force from and after its

publication in the statute book.

0 Responses to ““Substitute for SB 458””



  1. Leave a Comment

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s





%d bloggers like this: