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Just go ahead and throw out your copies of the Constitution. As of last week, Kansas House Bill 2078 has been approved and signed, and it will suspend speedy trial rights in the state at least until May 1, 2023.
Kansas Supreme Court Chief Justice Marla Luckert had issued an administrative order the previous day reinstituting most deadlines and time limitations beginning April 15. She, at least, seems to believe it is possible to move through this backlog without such expansive and drastic changes.
The Legislature and governor obviously disagree. It may seem trivial, but this is something that affects all of us — not just those who are currently on the criminal court docket. If the government can suspend the public’s constitutional protections whenever the government itself deems it necessary or expedient, then we have no constitutional protections in practice.
The importance of these protections for defendants themselves cannot be overstated. By definition, these people are innocent because they have yet to be adjudicated as guilty.
Individuals who are unable to secure pretrial release, usually simply because they cannot afford to pay the cash bond amount, are more likely to be convicted and even to receive a harsher sentence than they would’ve had they been released pretrial. Exposing a legally innocent person to harsh jail conditions is intended to be limited for a reason: We should not be punishing people without due process.
We certainly want to avoid doing it longer than absolutely necessary. Many of you are familiar with the Rontarus Washington Jr. case. How many more cases like his do you care to see?
The government had overburdened itself with unnecessary prosecutions well before COVID-19. Despite fewer than 5% of all criminal cases going to trial, we still see serious delays because the state simply prosecutes so many people. A system as bloated as ours is going to be challenged by any increased backlog, let alone a full year of disruption.
But that is the government’s job to handle, and its problem to solve. It cannot simply shirk its responsibilities and lock citizens in cages for however long it likes. Night and weekend courts (among others) are options that judges can utilize, whether they prefer to and would enjoy doing so or not.
The less immediately salient but much more troubling concern is how the passage of this will alter our legal system in future years. The bill bluntly states that “the provisions of this section shall be suspended.” This sets a precedent that, at any time, the government can simply add eight words to any current legislation to nullify duly enacted law, or to strip another branch of its power in a given arena.
Kansas courts have traditionally and statutorily set trial schedules. For the Legislature and governor to intervene in this manner is a gross violation of our system of checks and balances. Supporters of this change say none of this violates the actual “speedy trial” doctrine, at least as far as the legal precedent is concerned. But from where I’m standing, they appear to have disregarded not only the spirit of their own laws and state Constitution, but also the Sixth and 14th Amendments. Which currently lawful provisions do they intend to suspend next?
This action is a terrifying assault on our rule of law and system of government. Legal and trial rights are foundational in this country, because they are foundational to a free people. They are essential to the idea that the government operates only through our consent, support, and will. If governmental agencies can impinge upon these rights with eight words, just wait and see what they’ll take from you with the next six.
Better yet, vote them out. They are unfit to hold office.
— Kirsten Kuhn (she/her) is a super awesome Libertarian porcupine residing in Palmyra Township. She believes in personal freedom and self-determination for all people and enjoys gardening and beekeeping in her spare time. She can be reached at firstname.lastname@example.org or @KSLibertarians on Twitter.
Related story via Kansas Reflector:
• April 1, 2021: Kelly signs speedy-trial suspension bill, 3 other measures