Standing Strong Against K.S.A.
Summary:
Strong v. State analyzes the Kansas statute, K.S.A. § 21-5705, which triggers a mandatory rebuttable presumption of intent to distribute controlled substances when a defendant possesses over a certain amount of controlled substances. It has been well-settled for decades that mandatory rebuttable presumptions for criminal intent are unconstitutional. K.S.A. § 21-5705(e) has such a mandatory rebuttable presumption, which, under the United States Supreme Court’s Francis v. Franklin decision, is likely unconstitutional. Even so, a modified pattern jury instruction attempting to ameliorate the facially unconstitutional statute used a permissive inference instead of the statute’s rebuttable presumption. In Strong, the Kansas Supreme Court held that the defendant lacked the standing to challenge the statute because the mandatory presumption was not applied to him, and the permissive instruction was legally inappropriate. This Comment discusses the Strong holding to support use of the “applicable law” in jury instructions so that future defendants will have standing to challenge K.S.A. § 21-5705’s constitutionality and how using jury instructions to circumvent a facially unconstitutional statute may have separation of powers implications.
State v. Strong is one of many recent cases that attempts to address an unconstitutional law on the Kansas books.[1] The Kansas statute, K.S.A. § 21-5705(e), creates a mandatory rebuttable presumption of intent to distribute controlled substances when a defendant possesses a certain amount of controlled substances.[2] This statute is facially unconstitutional, but due to the application of a modified jury instruction in the trial courts that does not accurately represent the applicable law, the statute has effectively been altered from a mandatory rebuttable presumption to a permissive inference.[3] Because of the permissive inference instruction, defendants challenging the statute then lack the requisite standing to challenge its constitutionality as the statute—as written—was not applied to them in the pattern jury instruction.[4] This creates a circular problem with seemingly no resolution in sight. Jury instructions that attempt to fix apparent facially unconstitutional statutes could amount to lawmaking, violating the separation of powers doctrine.[5] Following the Strong decision, the Kansas trial courts must now implement jury instructions that fairly and accurately reflect the statute—even though K.S.A. § 21-5705(e) is facially unconstitutional—allowing future defendants to have standing to bring a constitutional challenge and end the evasion of appellate review, or the legislature must amend the statute.
During an October 2018 search warrant of a Manhattan residence, police discovered a digital scale, fifteen to twenty clean and empty plastic baggies, and two plastic bags containing methamphetamine: one bag with 10.24 grams and the other with 1.4 grams.[6] During the search, police located defendant Shameke Caesar Strong’s mail in the same room as the drugs and drug paraphernalia—a bedroom from which Strong had exited.[7] At trial, the State presented evidence that Strong possessed more than eleven grams of methamphetamine.[8] Strong testified that he did not live at the residence (his mail had a different delivery address than the searched residence), he did not know of the methamphetamine, and that he was only at the searched residence to use the shower due to water main issues at his house.[9]
Strong was charged under K.S.A. § 21-5705(e), which provides a mandatory rebuttable presumption that a defendant intends to distribute drugs when the defendant possesses over a certain threshold quantity of controlled substances,[10] such as 3.5 grams or more of methamphetamine.[11] In Strong, the court explained that this mandatory rebuttable presumption in K.S.A. § 21-5705(e) means “a jury must presume that a defendant who possessed at least 3.5 grams of methamphetamine did so with the intent to distribute it, unless the defendant can rebut the presumption with affirmative evidence to the contrary.”[12]
Even still, the jury instructions did not instruct on the mandatory rebuttable presumption in K.S.A. § 21-5705(e).[13] Instead, the jury instruction given by the district court was a slightly modified version of a pattern jury instruction, PIK Crim. 4th 57.022.[14] This modified instruction informed the jury that they could, but were not required to, presume that Strong intended to distribute the controlled substance if the evidence showed Strong possessed 3.5 grams or more of methamphetamine—a permissive inference rather than the statute’s mandatory rebuttable presumption.[15]
Strong was convicted in Riley County District Court of possession with the intent to distribute a controlled substance within 1,000 feet of a school in violation of K.S.A. § 21-5705 and sentenced to 186 months’ imprisonment.[16] Strong appealed, raising a constitutional challenge and instructional error issues.[17] The Court of Appeals affirmed Strong’s convictions and sentence on appeal.[18] The Kansas Supreme Court granted Strong’s petition for review.[19]
The statute at issue in Strong is K.S.A. § 21-5705, which makes it illegal to distribute or possess with the intent to distribute controlled substances.[20] Under subsection (e), the statute refers to a mandatory rebuttable presumption that a person has an intent to distribute the controlled substances if the person possesses specific quantities of certain controlled substances:
(e) In any prosecution under this section, there shall be a rebuttable presumption of an intent to distribute if any person possesses the following quantities of controlled substances or analogs thereof:
(1) 450 grams or more of marijuana;
(2) 3.5 grams or more of heroin or methamphetamine;
(3) 100 dosage units or more containing a controlled substance; or
(4) 100 grams or more of any other controlled substance. [21]
Consequently, when a jury finds that a defendant possessed these threshold quantities or more, as Strong did with methamphetamine, the jury must conclude that the defendant also possessed the controlled substances with intent to distribute them unless the defendant can rebut the conclusion with affirmative evidence.[22] Therefore, as recognized in Strong, K.S.A. § 21-5705(e) is a mandatory rebuttable presumption.[23]
Under Francis v. Franklin, the United States Supreme Court held that a mandatory rebuttable presumption is unconstitutional because it “relieves the State of the affirmative burden of persuasion on the presumed element by instructing the jury that it must find the presumed element unless the defendant persuades the jury not to make such a finding.”[24] Because the state must prove every element of a crime beyond a reasonable doubt through the affirmative burden of persuasion, a mandatory rebuttable presumption constitutes “unconstitutional burden-shifting.”[25] With Francis in mind, it logically follows that K.S.A. § 21-5705(e) is facially unconstitutional. This is the basis for the appeals that Strong and other similarly situated defendants have attempted to bring constitutional challenges of K.S.A. § 21-5705(e).[26]
Justice Stegall illustrates the crux of the Strong statutory issue in his concurrence—his dissenting view framed as a concurrence in result.[27] Justice Stegall explains that the Kansas Legislature passed an amendment in 2012 that added the problematic rebuttable presumption found in K.S.A. § 21-5705(e).[28] The following year, the committee that drafts standard jury instructions, called the Pattern Instructions in Kansas, drafted an instruction for implementing the newly amended statute.[29] Realizing the constitutional issue, the committee “substantively altered K.S.A. § 21-5705 from a mandatory rebuttable presumption to a permissive inference,” seemingly understanding that mandatory rebuttable presumptions are suspect—while permissive inferences are commonplace and constitutionally sound.[30] The resulting permissive inference pattern jury instruction, PIK Crim. 4th 57.022, has since been used to ameliorate what “everyone involved at the trial court level (including prosecutors, defendants, and district court judges) has recognized [as]potential constitutional deficiencies in K.S.A. § 21-5705.”[31]
The Kansas Supreme Court has encouraged the use of such PIK instructions.[32] Yet the court has expressly held that “an instruction must always fairly and accurately state the applicable law, and an instruction that does not do so would be legally infirm.”[33] Further, in State v. Valdez—decided the same day as Strong—the Kansas Supreme Court held that PIK Crim. 4th 57.022’s permissive instruction “does not fairly and accurately reflect the statutory rebuttable presumption” required by K.S.A. § 21-5705(e).[34]
Mandatory rebuttable presumptions and permissive inferences have differing legal effects.[35] Using K.S.A. § 21-5705(e) as an example, the Strong court explained that a mandatory rebuttable presumption “requires or compels the jury to draw a certain conclusion (an intent to distribute) based on a proven fact or set of facts (possession of at least 3.5 grams of methamphetamine), unless the defendant provides evidence contrary to that conclusion.”[36] The mandatory presumption in K.S.A. § 21-5705(e) thus also “implies [some] shifting of the burden of proof from the State to the defendant.”[37]
In contrast, a permissive inference allows the jury to choose whether they will infer or not infer a conclusion based on the evidence presented.[38] In Strong, the jury instruction described any conclusions in permissive terms:
You may presume that a person had the intent to distribute methamphetamine when the person possessed 3.5 grams or more. You may consider this presumption along with all other evidence in the case. You may accept or reject it in determining whether the State has met the burden to prove the required criminal intent of the Defendant. This burden never shifts to the Defendant.[39]
This is the basis on which Strong and other similarly situated defendants have brought instructional error claims arising from K.S.A. § 21-5705(e) and PIK Crim. 4th 57.022.[40]
The discrepancy between the plain language of K.S.A. § 21-5705(e) and how trial courts instruct juries on the statute creates further constitutional tension. By using PIK Crim. 4th 57.022 to instruct juries, district courts ultimately engage in judicial lawmaking that violates the separation of powers doctrine.[41] The Kansas Constitution incorporates the separation of powers doctrine—a fundamental principle of federal and state constitutional law—acknowledging that each branch of government has its functions and powers.[42] “The Legislature makes the laws, the executive branch executes the laws, and the judicial branch construes the laws. A violation of the separation of powers doctrine occurs when one branch usurps or intrudes on the powers of another branch.”[43] District courts’ use of PIK Crim. 4th 57.022 to instruct juries constitutes a judicial modification of K.S.A. § 21-5705(e) that intrudes on the power of the Kansas Legislature.
A fundamental aspect of the separation of powers doctrine is standing. As a check on the balance of powers, the separation of powers doctrine requires that a party wishing to make a constitutional challenge have “standing,” or the right to make a legal claim in an actual case or controversy.[44] To have such a right, a party must show an “injury in fact”; without an injury in fact, the courts cannot adjudicate the claim.[45] To allow a constitutional challenge, an “injury in fact” must show the party’s rights were affected by the statute at issue.[46] There can be no constitutional defect where there is no standing because the party’s rights were not adversely affected.[47] In Strong and the cohort of similar cases decided on the same day, the judiciary intervened to correct a constitutionally unsound law.[48] But by rewriting K.S.A. § 21-5705(e) through PIK Crim. 4th 57.022—instead of instructing on the law as written—the judiciary violated the separation of powers doctrine and rendered the constitutional safeguard of standing ineffective.[49]
Granting Strong’s petition for review, the Kansas Supreme Court analyzed Strong’s claims.[50] Regarding Strong’s constitutional challenge of K.S.A. § 21-5705(e), the court did not reach the issue on the merits, stating that he lacked standing to bring the challenge.[51] The court explained that because the jury convicted Strong based on a permissive inference instruction and not the mandatory rebuttable presumption, the constitutionally defective K.S.A. § 21-5705(e) was not applied to Strong.[52] Therefore, K.S.A. § 21-5705(e) did not adversely affect his rights, so he lacked the requisite standing to challenge it.[53]
Simultaneously, the court held that using PIK Crim. 4th 57.022 was legally inappropriate because it did not fairly and accurately reflect the mandatory presumption in the statute.[54] However, the court concluded that the error was harmless.[55] The court explained that the permissive jury instruction given was more beneficial to Strong than if the instruction had mirrored K.S.A. § 21-5705(e)’s mandatory rebuttable presumption.[56] The Court also reasoned that Strong failed to show that this caused reversible error under the clear error standard of review because he did not firmly convince the Court that the jury would have reached a different verdict if the error had not occurred.[57]
Accordingly, the Kansas Supreme Court affirmed the judgments of the district court and Kansas Court of Appeals.[58]
Strong is but one of several recent cases that takes notice of the circular issue surrounding K.S.A. § 21-5705(e).[59] The Kansas Supreme Court in Strong ultimately found that the permissive inference is lawful: “the jury may reasonably infer an intent to distribute based on a defendant’s possession of a large quantity of narcotics” and “if such an inference is reasonably grounded in evidence, the prosecutor may also encourage the jury to make this inference.”[60] Therefore, while the jury instruction in Strong reflected substantively correct law—in that jurors could draw reasonable inferences from the evidence presented—it did not reflect the applicable law because it did not incorporate the statute’s mandatory rebuttable presumption.[61] As the Court noted, because the mandatory presumption was not in the given jury instructions, defendants challenging the statute lack standing.[62] At the same time, the Kansas Supreme Court held that jury instructions that do not reflect the applicable law are also unconstitutional. This creates a circular issue that evades appellate review due to the defendants’ lack of standing to challenge the statute because the actual statute, as written, is not being applied to the defendants.
Kansas courts cannot reach the constitutional merits of the K.S.A. § 21-5705(e) due to this lack of standing—a combined result of the jury instruction committee and trial courts seeking to fix a facially unconstitutional statute.[63] This could be due to the doctrine of constitutional avoidance, which gives a presumption that the legislature writes laws that are constitutional, and the courts must construe laws to be constitutionally sound.[64] Even so, the doctrine of constitutional avoidance can only be applied when a statute is ambiguous and open to multiple interpretations.[65] Here, the Kansas Supreme Court clearly stated in Strong, that the statute is not ambiguous—the statute requires a mandatory presumption—and the permissive inference instruction was legally inappropriate.[66] Following stare decisis, the trial courts, going forward, must give the jury instructions that “fairly and accurately” reflect the statute’s mandatory rebuttable presumption, even if apparently facially unconstitutional.[67]
The cases decided after the Strong decision continue to be unable to address the statute’s constitutionality because the process must begin in the trial courts.[68] For example, State v. Crudo, a 2024 case, could not reach the constitutional question of K.S.A. § 21-5705(e) despite Strong.[69] Crudo was unable to reach the constitutional question because the trial court instructed the jury using PIK Crim. 4th 57.022.[70] The trial court did not benefit from the Strong decision because the erroneous instruction was given between 2019 and 2020, about three to four years before Strong was decided.[71] While it comes too late for Strong and his fellow defendants decided the same day, application of new jury instructions with the mandatory rebuttable presumption will finally allow future defendants the standing necessary to bring the constitutional challenge and the statute can finally get appellate review.[72]
The jury instruction committee and trial court’s substantial alteration of the jury instruction raises a separation of powers issue.[73] Lawmaking is not within the purview of the judiciary.[74] Rewriting jury instructions that do not reflect the applicable law is tantamount to lawmaking, which violates the separation of powers doctrine, as only the legislature is charged with lawmaking authority.[75]
There is a latent irony in the situation presented by Strong and similar cases. Both the jury instruction committee and district courts have recognized the constitutional flaw in K.S.A. § 21-5705(e), and aimed to rectify it.[76] Justifiably, there is an unease in directing a jury to adhere to a mandatory rebuttable presumption that infringes upon a defendant's constitutional right to require the state to prove every element of the alleged crime beyond a reasonable doubt.[77] While the judiciary's actions in safeguarding defendants from this constitutional flaw, and adhering to the United States Supreme Court's decision in Francis v. Franklin are commendable, they inadvertently engaged in judicial lawmaking that violated the separation of powers doctrine.[78] Defendants convicted under K.S.A. § 21-5705(e) find themselves ensnared in a dilemma caused by the collision of a constitutionally unsound law and an unconstitutional remedy; this predicament has shielded K.S.A. § 21-5705(e) from review for over a decade.[79]
There are two potential avenues for resolving K.S.A. § 21-5705(e). First, the district courts can properly instruct on K.S.A. § 21-5705(e), which would finally allow a defendant convicted under the law the proper standing to challenge its constitutionality. With the Strong holding, the State’s highest court has now declared the permissive jury instruction PIK Crim. 4th 57.022 was legally inappropriate because jury instructions must fairly and accurately represent applicable law.[80] The process will be slow, as the legally correct jury instruction must be implemented at the trial court level to receive eventual appellate review, but a defendant with requisite standing could be en route.
Alternatively, the Kansas Legislature itself could amend the law. As of the publication of this Comment, an amendment to K.S.A. § 21-5705(e) passed in the Kansas House of Representatives and is presently in committee in the Kansas Senate.[81] However, previous attempts by the Kansas Legislature to amend K.S.A. § 21-5705(e) to fix its constitutional defects failed.[82] Perhaps this most recent effort will be successful.[83]
Nevertheless, even if the legislature is successful, the situation with § K.S.A. 21-5705(e) serves as a compelling example of how a violation of the separation of powers doctrine—no matter how seemingly justified—disrupts the equilibrium of the government as a whole. The separation of powers doctrine is fundamental to the checks and balances of our American government, and a violation of the doctrine has led to an unconstitutional law being on the Kansas books for over a decade.
[1]See generally State v. Strong, 527 P.3d 548 (Kan. 2023).
[2]Kan. Stat. Ann. § 21-5705(e) (2012) (amended on July 1, 2024).
[3]Strong, 527 P.3d at 557–58.
[4]Id. at 561.
[5]See State v. Hunt, 447, 503 P.3d 1067, 1078 (Kan. 2021).
[6]Strong, 527 P.3d at 553.
[7]Id.
[8]Id. at 552.
[9]Id. at 553.
[10]Id. at 552; Kan. Stat. Ann. § 21-5705(e) (2012) (amended on July 1, 2024).
[11]§ 21-5705(e)(2).
[12]Strong, 527 P.3d at 552 (emphasis in original).
[13]Id. at 552–53.
[14]Id.
[15]Id. at 551, 554–55.
[16]Id. at 553.
[17]Id. at 552.
[18]Id. at 553.
[19]Id.
[20]Kan. Stat. Ann. § 21-5705(a), (b) (2012) (amended July 1, 2024).
[21]§ 21-5705(e) (emphases added).
[22]Strong, 527 P.3d at 552.
[23]Id. at 556.
[24]Francis v. Franklin, 471 U.S. 307, 317 (1985).
[25]Strong, 527 P.3d at 563 (Stegall, J., concurring) (citing Francis, 471 U.S. at 317–18).
[26]See id. at 559; State v. Holder, 502 P.3d 1039, 1041–42 (Kan. 2022); State v. Slusser, 527 P.3d 565, 573 (Kan. 2023); State v. Martinez, 527 P.3d 531, 540–41 (Kan. 2023); State v. Bentley, 526 P.3d 1060, 1079–80 (Kan. 2023).
[27]Strong, 527 P.3d at 563 (Stegall, J., concurring).
[28]Id.
[29]Id.
[30]Id.
[31]Id.
[32]State v. Butler, 307 Kan. 831, 847, 416 P.3d 116 (2018).
[33]State v. Plummer, 283 P.3d 202, 207 (Kan. 2012).
[34]State v. Valdez, 512 P.3d 1125, 1134 (Kan. 2022).
[35]State v. Holder, 502 P.3d 1039, 1044 (Kan. 2022).
[36]Strong, 527 P.3d at 556.
[37]Id.
[38]See id. at 554.
[39]Id. (emphasis added).
[40]Id. at 559; Holder, 502 P.3d at 1041–42; State v. Slusser, 527 P.3d 565, 573 (Kan. 2023); State v. Martinez, 527 P.3d 531, 540–41 (Kan. 2023); State v. Bentley, 526 P.3d 1060, 1079–80 (Kan. 2023).
[41]See State v. Hunt, 503 P.3d 1067, 1078 (Kan. 2021).
[42]Id.
[43]Id. (citations omitted).
[44]Strong, 527 P.3d at 559.
[45]Id.
[46]Id.
[47]Id. at 559–60.
[48]See generally State v. Slusser, 527 P.3d 565 (Kan. 2023); State v. Martinez, 527 P.3d 531 (Kan. 2023); State v. Bentley, 526 P.3d 1060 (Kan. 2023) (all opinions filed April 14, 2023 by the Kansas Supreme Court with defendants who sought to challenge Kan. Stat. Ann. § 21-5705(e), like Strong).
[49]See State v. Hunt, 503 P.3d 1067, 1078 (Kan. 2021) (citing State ex re. Morrison v. Sebelius, 179 P.3d 366, 375 (Kan. 2008)) (“‘(a) the essential nature of the power being exercised; (b) the degree of control by one branch over another; (c) the objective sought to be attained . . . ; and (d) the practical result of the blending of powers as shown by actual experience over a period of time.’”).
[50]Strong, 527 P.3d at 554–63.
[51]Id. at 562–63.
[52]Id. at 560–61.
[53]Id. at 561.
[54]Id. at 555, 564.
[55]Id. at 558, 562.
[56]Id. at 558.
[57]Id. at 558, 562.
[58]Id. at 563.
[59]See State v. Holder, 502 P.3d 1039, 1041–42 (Kan. 2022); State v. Slusser, 527 P.3d 565, 572 (Kan. 2023); State v. Martinez, 527 P.3d 531, 542–43 (Kan. 2023); State v. Bentley, 526 P.3d 1060, 1079–80 (Kan. 2023).
[60]Strong, 527 P.3d at 557.
[61]See id.
[62]Id. at 561.
[63]Id. at 563 (Stegall, J., concurring).
[64]Constitutional Avoidance, Cornell L. Sch.: Legal Info. Inst. (Aug. 2022) https://www.law.cornell.edu/wex/constitutional_avoidance.
[65]Johnson v. United States Food Serv., 478 P.3d 776, 780 (2021).
[66]Strong, 527 P.3d at 557–58.
[67]See In re Equalization Appeals of Walmart Stores, Inc., 513 P.3d 457, 476 (Kan. 2022) (citing McCullough v. Wilson, 426 P.3d 494, 498 (Kan. 2018)) (“Stare decisis recognizes that once a point of law has been established by a court, that point of law will generally be followed by the same court and all courts of lower rank in later cases when the same legal issue is raised.”); State v. Plummer, 283 P.3d 202, 207 (Kan. 2012).
[68]See generally State v. Crudo, 541 P.3d 67, 76 (Kan. 2024).
[69]Id. at 76.
[70]Id. at 75–76.
[71]State v. Crudo, 517 P.3d 857, 862 (Kan. Ct. App. 2022), aff’d 541 P.3d 67 (2024).
[72]State v. Strong, 527 P.3d 548, 560–61 (Kan. 2023).
[73]See State v. Hunt, 503 P.3d 1067, 1078 (Kan. 2021); see also Strong, 527 P.3d at 563 (Stegall, J., concurring).
[74]Hunt, 503 P.3d at 1078.
[75]See id.; Strong, 527 P.3d at 563 (Stegall, J., concurring).
[76]See Strong, 527 P.3d at 563 (Stegall, J., concurring).
[77]See id. (citing Francis v. Franklin, 471 U.S. 307, 317–18 (1985)).
[78]See Hunt, 503 P.3d at 1078; Strong, 527 P.3d. at 563 (Stegall, J., concurring).
[79]See Kan. Stat. Ann. § 21-5705(e) (2012) (amended on July 1, 2024) (the statute remained unconstitutional until the Kansas legislature amended the statute to remove the “rebuttable presumption” in 2024).
[80]Strong, 317 Kan. at 554–55, 562–63.
[81]H.R. 2385, 2023–2024 Leg., Reg. Sess. (Kan. 2024).
[82]See H.R. 2705, 2021–2022 Leg., Reg. Sess. (Kan. 2022).
[83]After the completion of this comment, this bill was passed by the Senate, causing Kan. Stat. Ann. § 21-5705(e) to be amended starting July 1, 2024.