FOR IMMEDIATE RELEASE
July 10, 2019
CONTACT: Mark McCormick, Director of Strategic Communications, 913-490-4113, [email protected]
OVERLAND PARK, KS - In a case harkening back to the draconian penalties of ancient Greece or the Old West, the ACLU of Kansas filed a motion Wednesday on behalf of a Southeast Kansas man prosecutors have “banished” from the state as a part of his plea agreement.
The filing, in Montgomery County District Court, aims to free Bo Dana Rupert from what the ACLU has called an illegal form of punishment and allow him to return to Kansas from Texas.
“This is one of the most bizarre and illegal sentences I’ve ever seen,” said ACLU of Kansas Legal Director Lauren Bonds, who asked the court to strike Rupert’s banishment condition while leaving his sentence undisturbed.
This is the second case the ACLU of Kansas has filed against Montgomery County Attorney Larry Markle. The affiliate along with the national ACLU, filed a June 2018 suit in the Kansas Supreme Court to force Markle to follow state law and begin notifying every defendant about diversion programs. That suit is ongoing.
Rupert pled guilty to two counts of criminal threat and three counts of filing a false report in August of 2017. At the time of sentencing, the presumptive sentence for his base offense was correctly identified as 12 months of probation.
But during Mr. Rupert’s guilty plea, the Court also accepted the terms of a plea agreement Rupert had entered with Markle. In negotiating Rupert’s plea agreement, Markle made clear he was bent on having Rupert leave town for good.
“The County Attorney’s plea agreement included a requirement that Mr. Rupert: (1) leave the State of Kansas; and (2) never return to Kansas …,” the filing reads.
Mr. Rupert’s plea agreement stated, “If the defendant does return to Kansas then […] the County Attorney may consider filing all other charges for additional offenses not filed now”). Mr. Rupert felt he had no choice but to accept this agreement.”
Rupert’s lawyer’s final admonition was, “Don’t still be here tomorrow when the sun comes up. Failing to do so, he warned, would violate Mr. Rupert’s plea agreement and expose him to a harsher sentence for breach of his agreement.”
This sentencing, according to the filing, amounted to a sundown probation that had been all but eradicated by a compact between the States as early as 1935.
“For almost a century, meanwhile, other states that have considered the question have unambiguously found that banishing a criminal defendant from an entire state is a form of illegal sentence that violates state public policy,” the filing said.
The filing concludes: “For the foregoing reasons, Mr. Rupert requests that this Court strike the portion of his sentence banishing him from the State of Kansas, declare that Mr. Rupert’s probation sentence has been served in full, and order that the County Attorney may not attempt to enforce Mr. Rupert’s condition of banishment through subsequent prosecution.”
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About the ACLU of Kansas: The ACLU of Kansas is the statewide affiliate of the national American Civil Liberties Union. The ACLU of Kansas is dedicated to preserving and advancing the civil rights and legal freedoms guaranteed by the United States Constitution and the Bill of Rights. For more information, visit our website at www.aclukansas.org.