By KYLE CRANE
KU Statehouse Wire Service

TOPEKA — Stacy Donovan of Lawrence has been a criminal defense lawyer for the past 16 years. She has defended countless suspects of aggravated burglary, and has also been a victim.

In February 2012, four unarmed, young men burglarized her home while she, her husband and two daughters were sleeping. She hadn’t realized what happened until she was awakened by a phone call from a police officer. The police had stopped the suspects for a traffic violation, and found items from Donovan’s home in their possession.

“The next few nights were fairly sleepless for all of us in our family,” said Donovan, the chief district defender of the Third Judicial District Public Defender’s Office. “The kids asked a lot of questions about bad guys afterward. We tried to assure them that everybody makes mistakes and sometimes those mistakes hurt other people.”

In February, Kansas’ lawmakers proposed legislation to increase the punishment for individuals who commit such crimes.

Senate Bill 415 would raise the penalty levels for burglary and aggravated burglary of a dwelling, or a person’s place of residence. It would also increase the penalty for burglars who intend to steal a firearm from a residence.

Kansas law defines burglary as knowingly and without authority entering into or remaining within any dwelling, building, or privately owned structure, which includes motor vehicles, with intent to commit a felony, theft or sexual battery. Aggravated burglary is committed when a person, other than the burglar, is present.

According to the Kansas Bureau of Investigation’s most recent crime report, there were 13,912 reported burglaries in Kansas in 2012, which was a 3 percent increase from 2011.

Todd Thompson, a Leavenworth County attorney and proponent of the bill, told the Senate Judiciary Committee that a home burglary could interfere with a family’s wellbeing more than almost any other crime affecting a person.

“We often hear from people who discuss not being able to sleep, trust, or feel confident in leaving their homes for an extended period of time,” Thompson said.

According to Thompson, victims often appear at a suspect’s sentencing and urge the court to impose the harshest punishment possible. However, defendants are frequently given lenient sentences when compared to other non-violent, victimless offenses.

“Current sentences as ordered by the Kansas Sentencing Guidelines do not fit the crime when factoring the monetary and psychological toll affecting victims,” Thompson said.

Stacey Donovan said she appeared at the sentencing for the 18-year-old suspect who took the blame for burglarizing her home. She asked the judge to not place him in prison.

“Their age, the fact that he didn’t have any criminal history and that he didn’t have any weapons made me feel that this is somebody who, if he was on probation, could be given a chance to turn things around,” Donovan said.

The recommended sentencing for a felony conviction depends on the severity level of the crime committed and the offender’s criminal history. The sentencing court has discretion to choose an appropriate punishment based on a range of presumed sentences and mitigating circumstances, such as a victim’s request for mercy on the defendant.

The bill would raise the penalty for burglary of a dwelling from a severity level 7, nonperson felony, to a level 6, person felony. For a first-time offender, the standard presumed sentence would be 34 months in prison, as opposed to two years of probation. For aggravated burglary of a dwelling, the penalty would increase from a level 5, person felony, to level 4. The presumed prison term for a first-time offender would be 66 months, as opposed to 52 months.

Burglary of a dwelling with the intent to steal a firearm would become a level 5, person felony, but remain a nonperson felony if taken place in a non-dwelling.

Passage of the law would likely result in more and longer prison sentences. The Kansas Sentencing Commission estimated that it would require upwards to 77 additional adult prison beds in fiscal year 2015, and up to 289 beds by 2024.

According to the Sentencing Commission’s FY 2014 Adult Inmate Prison Population Projections report, without passage of the bill, adult correction facilities will be over capacity by 2017. While current facilities could handle the potential population increase in the short term, a construction project for new cell houses at the El Dorado Correctional Facility would be necessary in the near future. The construction and operation costs of the project would amount to $32.8 million.

As of Friday, Kansas prisons housed 9,624 inmates, 12 under capacity.

Jennifer Roth, a representative of the Kansas Association of Criminal Defense Lawyers, said that a solution to free up prison beds would be to revise Kansas’ definition of aggravated burglary to exclude premises that are at the time open to the public, such as retail stores. The change would prevent most repeat shoplifters from going to prison.

When a person is charged with theft or disorderly conduct in a store, such as Walmart, the business often bans the person from reentering its stores. If that person reenters the store and shoplifts, they are often charged with aggravated burglary under Kansas law, as they knowingly entered the populated store without permission with the intent to steal.

“This is not consistent with the intended policy of incarcerating more dangerous persons,” Roth said.

According to Roth, such offenders should, instead, be charged with criminal trespass or theft, which is consistent with the Model Penal Code adopted by several other states.

Stacey Donovan said she thinks the general public would be shocked to know that a shoplifter could be charged with aggravated burglary.

“To equate stealing from a retail store with a home invasion is senseless and a miscarriage of justice,” Donavon said. “The level of danger and harm caused by those two crimes is completely different.”

Senate Bill 415 has yet to pass through the Senate to the House for consideration. However, the Senate Judiciary Committee recommended passage of the bill.

Kyle Crane is a University of Kansas senior journalism student from Overland Park.