The American Civil Liberties Union filed a lawsuit Friday with the Kansas Supreme Court against the Montgomery County attorney alleging failure to operate diversion programs in accordance with state law and subjecting defendants to a higher probability of serving jail time.
The suit, filed on behalf of Kansas Crossroads Foundation and an Independence teenager, asserted Montgomery County Attorney Larry Markle sidestepped state statute by failing to maintain written policies for diversion programs and to inform all defendants of details of the sentencing alternative.
In the filing, the plaintiffs argued Markle’s persistent failure to comply with Kansas law “constituted and will continue to constitute the unlawful performance of public duties and the unlawful exercise of public office.”
The ACLU contacted Markle in May about addressing diversion issues in the county, but the lawsuit says he directed the plaintiffs to “take whatever legal action you feel appropriate.”
Diversion programs vary from county to county, but generally allow first-time and non-violent offenders an alternative to jail by completing community service, paying restitution, undergoing behavioral or mental health treatment or a combination of those requirements.
The ACLU in a study released in December found Kansas prosecutors use diversions less than the national average.
The lawsuit
Somil Trivedi, an ACLU attorney based in Washington, D.C., who prepared the lawsuit along with Overland Park attorney Lauren Bonds, representing ACLU Foundation of Kansas, said Markle maintains diversion policies in Montgomery County only for traffic and driving under the influence infractions.
County documents touch upon some eligibility requirements, the ACLU said, but don’t include a list of charges eligible for diversion or what disqualifies a defendant from consideration. That information was provided to the ACLU through the Kansas Open Records Act, but not produced for defendants.
The ACLU contends defendants in Montgomery County have an unfair shot at qualifying for diversions and the county jails more people than necessary.
The lawsuit points to the case of Karena Wilson, an Independence woman with no prior convictions when arrested for theft of less than $1,500 after breaking into a soft drink machine. She was convicted of three misdemeanors, given 12 months of probation and ordered to pay a $2,000 fine.
“Ms. Wilson was never informed in writing about Montgomery County’s diversion policy,” the lawsuit states. “She was not told verbally.”
According to the lawsuit, conditions in Montgomery County create a burden on Kansas Crossroads Foundation, a nonprofit organization headquartered in Neodesha that provides drug counseling and job placement services to individuals in Wilson, Montgomery and Sedgwick counties. Prosecutors’ failure to inform defendants of diversion programs has harmed KCF because the organization has been “forced to counsel more clients in the Montgomery County Jail and devoted resources towards helping them meet probation and parole obligations.”
Rather than filing the case with the district court in each county, the ACLU contends the state Supreme Court should take up the matter to set precedence for the entire state, Trivedi said. Use of diversions is sparse in Kansas counties and a ruling from the high court would create a standard, he said.
“There are plenty of other counties in Kansas falling short of the statute,” Trivedi said. ”(Montgomery County) particularly fell short.”
Kansas diversions
The lawsuit underscores the ACLU study, “Choosing Incarceration,” that indicated diversions in Kansas during 2016 were relied upon in 5 percent of felony cases, which is half the national average. More than 20 counties in Kansas offered no diversion programs and 50 counties had diversion rates less than half of the national average of 9 percent of felony cases.
The report said Butler and Reno counties had no diversions in 2016, while Sedgwick processed 1.7 percent of felony cases through diversions. Johnson County was near the state average of 5 percent. In Saline County, less than 1 percent of cases went to diversion.
Increasing the number of diversions to the national average would reduce the state’s prison population by as much as 10 percent and cut spending by nearly $9 million, according to the ACLU study.
“It’s the most cost effective alternative to prison,” Trivedi said. “It gets counseling and other services to folks to help them not offend again.”
Shawnee County, however, sent more than 8 percent of felony cases to diversion. Topeka defense attorney Kevin Cook equated a diversion to pausing a video.
“The image is still there, but nothing happens. Your charges are still there, but we’ve paused the process,” he said. “If you complete your diversion, we eject the tape, or case. If not, then we press play and it moves forward.”
The diversion system offers benefits to prosecutors and defendants, Topeka attorney Joe Huerter said. He said the state doesn’t have to pay the cost of prosecuting a case and receives revenue through diversion fees that can be used to support other programs while the defendant avoids jail time.
Most diversions last six months to a year and include requirements the defendant receive substance abuse or mental health evaluations, take behavioral classes and pay restitution. Diversion participants must acknowledge that if the case went to trial, prosecutors could prove guilt.
“There’s something in this for the person accused,” Huerter said, “and there’s something in it for the public as the overall societal victim.”
Wilson County
The ACLU contemplated adding to the lawsuit Wilson County Attorney Kenley Thompson, who the organization said didn’t inform a Colorado woman of diversion programs before she pleaded guilty to a drug charge and had her children placed in state custody. Thompson avoided litigation by agreeing to rework the county’s diversion program.
“He said he’s going to completely overhaul his policy,” said Trivedi, of the ACLU.
Melisa Braham, a Colorado resident, was arrested last year while driving through Wilson County with her children.
She was charged with the felonies of child endangerment, possession of a controlled substance and possession of stolen property, as well as misdemeanor possession of marijuana and drug paraphernalia. Thompson dropped the felony charges, but she was found guilty on misdemeanor charges.
Even though Braham’s case wasn’t covered by Wilson County diversion offerings, officials didn’t inform Braham of any options, the ACLU said, in violation of state law. The ACLU asserts the existing program, which allows diversions for DUI and other traffic infractions, fell “woefully” short of what the state allows. As a result, her children were taken into foster care where they remained while Braham spent a month in county jail.
“Clearly, she is someone who would have benefited from diversion and her life is still in shambles,” Trivedi said.