On March 12, 2019, the ACLU of Kansas filed a criminal appeal challenging the constitutionality of Sedgwick County's standard probation conditions for gang members as both overbroad and vague in violation of the First and Fourteenth Amendments. The probation conditions being challenged in this suit apply broadly to anyone on pretrial release or probation in Sedgwick County who is identified by police or prosecutors as belonging to a gang. The conditions are unlawfully restrictive of the basic rights to freedom of movement, expression and association, and they are aggressively applied even against people with no relationship to criminal gang activity.
Mr. Hayes, the appellant in this suit, seeks to remedy these constitutional violations on behalf of all criminal defendants in the State of Kansas. On October 27, 2018, twenty-three-year-old Mr. Hayes was pulled over for a routine traffic stop when he failed to signal a right turn at least 100 feet before reaching a stop sign. He was taken into custody and a handgun was found near his person. In December, Mr. Hayes pled guilty to one count of criminal possession of a weapon by a convicted felon.
No information in the police report indicated that Mr. Hayes had engaged in gang-related criminal activity at the time of his arrest, which was for a traffic violation. The police did not believe Mr. Hayes was in the process of carrying out another crime, was participating in any gang activity at the time of his arrest, or had exhibited any indicia of gang membership. Under Kansas law, before labeling someone a gang member the police are required to establish that an individual satisfies three or more of a list of ten factors, such as being identified as a criminal street gang member by a parent or guardian, or adopting a gang's style of dress, color, use of hand signs, or tattoos.
Nonetheless at sentencing, the prosecutor demanded that Mr. Hayes be subject to Sedgwick County’s gang probation conditions. These conditions include broad and confusing restrictions on where you can go, when you can leave your home, whom you can speak to, how many people you can drive in your car, what you can wear, and whether you can access the courts to seek justice. The result is a system of probation where law enforcement can turn any circumstance into a probation violation. The conditions are therefore constitutionally invalid as applied to anyone in Sedgwick County, but none of these restrictions are even related to the crime Mr. Hayes committed in any way.
While Kansas offers probation as an alternative to unnecessary incarceration for low-level offenses, 40.6% of new prison admissions in the 2018 fiscal year came from technical probation violations—not actual new criminal offenses. The over-supervision resulting from restrictive conditions of probation is needlessly disrupting lives by sending people to prison and is counterproductive to the purpose of probation in this state—which is to support and rehabilitate those who commit minor crimes.
