Choosing Incarceration

The crime rate in Kansas has fallen significantly over the last 40 years, but incarceration has more than quadrupled. In October 2017, the Kansas prison population stood at almost 10,000 people and on some days exceeded the system’s capacity. The costs of maintaining such a massive prison system have escalated dramatically over the course of four decades, putting an unnecessary burden on Kansas taxpayers.

 

Keeping nearly 10,000 Kansans in prison, many of them due to mental illnesses or substance abuse conditions, cost Kansas taxpayers $229 million in 2016 and results in overcrowding that endangers correctional officers.  Such epidemic levels of incarceration make Kansas communities less free, healthy, strong, and safe.

 

There are alternative approaches to our criminal justice system that would make Kansas communities safer and stronger, while reducing incarceration and the cost to taxpayers.  Diversion is one such approach.  Diversion is when the prosecutor, who is an elected official, allows selected individuals to avoid criminal charges if they follow a prescribed program of treatment, restitution, and/or community service. 

 

Diversion programs have a long and proven track record of reducing incarceration and costs, dramatically reducing the likelihood that an individual will commit another crime, ensuring that people get treatment and services they need, and making communities safer and stronger. 

 

Diversion works, but it is a strategy that is not being used effectively by elected prosecutors in Kansas. 

 

In fact, Kansas prosecutors use diversion at just half of the national average, or in about 5% of all felony cases, despite the fact that 94% of Kansans want their local prosecutor to use diversion more often.

 

Instead of embracing diversion, prosecutors in Kansas choose incarceration.  If Kansas were to truly embrace diversion, it could reduce the state’s prison population by as much as 10% and cut government spending by $8.9 million. This report explores the reasons for the low diversion rate in Kansas.  It examines the wildly divergent policies, practices, and outcomes related to diversion in all 105 counties. 

 

There are several reasons that diversion is not an effective tool in Kansas, including: 

 

• Local prosecutors flaunt the state law that requires them to have formal diversion policies.

• Prosecutors have created a web of unnecessarily harsh rules that leave thousands of people ineligible for diversion.

• Diversion programs are a well-kept secret, with many eligible applicants totally unaware of the option’s existence.

• Enormous fines and fees make participation difficult even for those who are able to navigate the eligibility guidelines.

• A near-total lack of data makes accountability, transparency, and improvement difficult.

• Limited capacity and funding reduces the options for diversion applicants and prosecutors.

 

But the most important reason that diversion is not an effective tool in Kansas is that too many of the state’s elected prosecutors simply refuse to use it.  The major impediment to the broader use of diversion—and the incarcerationreducing, recidivism-limiting, communitystrengthening benefits that accompany it—is not lack of resources or capacity, nor statutory constraints, nor public hostility. 

 

The major impediment to diversion in Kansas is that elected county and district attorneys use their prosecutorial discretion to discourage, prohibit, refuse, and reject diversion in cases where it would be appropriate.

 

Prosecutors’ rejection of diversion has real costs for Kansas, in increased incarceration, increased costs for taxpayers, and communities that are less safe and vibrant.  This report offers recommendations to address this set of problems, including:

 

• Requiring prosecutors to make all defendants aware, at the time of arrest, that they can request diversion. 

• Standardizing the diversion process, with a single, uniform application and a requirement that denied applications receive a written response.

• Reducing fees and fines.

• Enhanced transparency and data collection about diversion, especially at the county level.

 

Kansas can—and should—be a national leader in the use of diversion.  Embracing these recommendations would help Kansas achieve that goal.  Increasing the use of diversion would reduce incarceration, provide treatment and services to improve community health, reduce costs to taxpayers, and make families and communities safer and stronger.