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Part of Criminal Threat Statute Declared Unconstitutional by Kansas Supreme Court.  Major Impact on Cases.

Part of Criminal Threat Statute Declared Unconstitutional by Kansas Supreme Court.  Major Impact on Cases.

As of 2019, the statute for criminal threat read:

K.S.A.  21-5415. Criminal threat; aggravated criminal threat. (a) A criminal threat is any threat to:

(1) Commit violence communicated with intent to place another in fear, or to cause the evacuation, lock down or disruption in regular, ongoing activities of any building, place of assembly or facility of transportation, or in reckless disregard of the risk of causing such fear or evacuation, lock down or disruption in regular, ongoing activities;

(2) adulterate or contaminate any food, raw agricultural commodity, beverage, drug, animal feed, plant or public water supply; or

(3) expose any animal in this state to any contagious or infectious disease.

(b) Aggravated criminal threat is the commission of a criminal threat, as defined in subsection (a), when a public, commercial or industrial building, place of assembly or facility of transportation is evacuated, locked down or disrupted as to regular, ongoing activities as a result of the threat.

(c) (1) A criminal threat is a severity level 9, person felony.

(2) Aggravated criminal threat is a severity level 5, person felony.

(d) As used in this section, "threat" includes any statement that one has committed any action described by subsection (a).

However, on November 1, 2019, the Kansas Supreme Court released it’s ruling in State v Boettger.  That ruling clarified that the portion of K.S.A. 2018 Supp. 21-5415(a)(1) allowing for a conviction if a threat of violence is made in reckless disregard for causing fear is unconstitutionally overbroad because it punishes conduct that may be constitutionally protected under some circumstances.

In other words, you shouldn’t be convicted for criminal threat if it was based on you recklessly saying things versus intentionally.  Prosecutors would regularly pursue charges using this alternative means.  Now, that is not allowed.

Additionally, it is now arguable that any prior convictions under that Kansas criminal threat statute are potentially objectionable under K.S.A. 21-6810(d)(9).  K.S.A. 21-6810(d)(9) states “Prior convictions of a crime defined by a statute that has since been determined unconstitutional by an appellate court shall not be used for criminal history scoring purposes.”

In this case, only part of the criminal threat statute was determined to be unconstitutional in State v. Boettger.  However, at sentencing it should be the State’s burden as clarified in State v. Obregon, 309 Kan. 1267, 1275 (2019).  The State must prove the Defendant was not convicted under the unconstitutional alternative means of recklessly doing it. That would likely be very difficult for the state to do since both alternative means are contained in K.S.A. 21-5415(a)(1).  This could make a HUGE difference at sentencing.  For example, if a Defendant is at sentencing for a level 1 felony and is a criminal history score of B, they are looking at 554 to 618 months in prison.  However, if you could knock it down to a criminal history score of E, by getting rid of a person felony, the sentence would instead range from 221 to 246 months.

If you are dealing with a criminal threat charge or if you have a new criminal case and have a past criminal threat conviction, consult with an experienced criminal defense attorney.  The right lawyer can make a significant difference in your case and life. 

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