Probation in Kansas Criminalizes Poverty and Continues a Legacy of Systemic Racism

Probation, the legal practice that allows an individual to remain in their community for all or part of the sentence for a criminal conviction, dates back as far as the early 19th century. Originally, the practice may have been intended to allow the court to punish an offender without punishing those who relied upon his support, or perhaps in the face of a harsh sentence to “let the punishment fit the crime.” It may be that the judges who originally meted out probation instead of prison or other harsh punishments intended to do a service to offenders and their communities. But in the 21st century, we see that probation can do more harm than good, especially when it permanently subjects poor Kansas and particularly Kansans of color to repugnant, Reconstruction era-like restrictions.  

Immediately after the Civil War ended, Southerners could no longer lawfully control the movements of Black people through the institution of slavery and turned to enacting a series of laws that are collectively referred to as Black Codes. Black Codes served to surveil formerly enslaved people’s movements, criminalize their behaviors, and of course, control their labor. Texas and Arkansas enacted laws denying Black people the right to testify against whites, serve on juries or in state militias, or vote. South Carolina made it a crime for a “person of color” to travel to and remain in the state for more than 21 days without entering a bond with two landowners to ensure his good behavior. Mississippi’s Black Code required Black men to provide written evidence of a lawful home and employment as of January 1, 1866, which, for context, was only 25 days after the 13th Amendment was ratified. Mississippi’s and other states’ “vagrancy laws” meant the failure to provide proof of acceptable employment would result in fines and newly freed Black men being “hired out” by sheriffs or courts. Mississippi also made it a crime punishable by fine and imprisonment for a Black person to act as a minister of the gospel unless they were licensed by a “regularly organized church.” Almost every state’s Black Code made it unlawful for Black people to own guns, knives or other weapons. 

Some form of the present Kansas probation statute was first enacted in 1969, but it’s unclear how long Kansas Courts have used probation as a tool. Under the current law, a judge may instruct a person on probation to avoid certain habits or behaviors and to stay away from certain places or people. A probation officer may visit a probationer’s home or any another location the officer chooses. And the individual can be ordered to maintain suitable employment, to provide volunteer labor, and to refrain from traveling without the court’s permission. If the probationer was convicted of a felony, they cannot vote for as long as they are on probation.  

It's worth noting here, that in 2022, 31% of individuals on probation were Black Americans, even though Black Americans were 14 percent of the U.S. population¹. In Kansas, we know that in 2022, 63 out of every 1000 Kansas were on probation², but we don’t know the racial breakdown of that number because Kansas, in contrast to neighboring states³, did not report it. But it is fair to surmise based upon the fact that 24% of Kansans on parole in 2022 were black⁴, that Black Kansans, who make up only 6.2% of the state’s population, are also overrepresented on the probation rolls.  

There are striking similarities between the Black Codes and the Kansas probation statute, and the percentage of Black Kansans on probation is wildly disproportionate to the total percentage of Black Kansans. Why should we be concerned? One could argue that these conditions of probation are reasonable and reasonably calculated to help an individual achieve rehabilitation. Well... maybe. Maybe being told with whom to associate and what to do with your time can help someone kick a bad habit. Perhaps being monitored and searched periodically without warning will give someone just the amount of accountability she needs to turn a corner. For some, probation conditions may prove helpful, assuming the oversight is for a reasonable time.  

But what if I told you that these conditions of probation could last forever? What if I said that an individual convicted once for a crime could be subject to visits and searches by a probation officer indefinitely, or that the government could monitor a man’s activities, community associations and employment status for the rest of his life? If I told you that an individual once convicted by a Kansas court could never start fresh in a new state or retire to a warmer climate because they are tied to the State by their probation status, or that they could never vote, would that be reasonable? Or does it sound eerily similar to that most shameful of American institutions? 

How can probation last forever? When a court orders probation, isn’t it for a few years? There is a condition of probation that I did not list earlier: in addition to any other conditions of probation, a judge shall absent circumstances the judge deems to be compelling, order a defendant to make reparation or restitution in an amount and manner determined by the court. While the order to pay restitution in itself does not make probation a lifetime sentence, another statute does. Kansas Statute section 21-6608(c)(7) states that if a defendant is ordered to pay full or partial restitution, probation may be continued for as long as the restitution ordered has not been paid. In other words, a person convicted of theft of property or services of the value of $100,000 or more who would normally be on probation for no more than three years, would be on probation for as long as she is not able to pay the restitution ordered. A person convicted of theft of property or services of the value of at least $1,500 but less than $25,000 would normally be sentenced to one year probation, but under this part of Kansas law, could be on probation for as long as she is unable to make financial restitution.  

How long does it take to pay off a $25,000 debt if you earn the minimum wage and have a felony on your record, and perhaps a family to house and feed? What if that debt is $100,000? For comparison consider this. It will take the average middle-class homeowner 30 years to pay off a $250,000 mortgage. That is, of course, if all goes well.  

Government oversight is common for people in the lowest socioeconomic class. They are more likely to have their parenting scrutinized and the intervention of child welfare services. If a low-income person requires housing assistance, state and/or federal workers will ask intrusive questions and periodically, sometimes without warning, enter their homes. They are more likely to interact with law enforcement and find themselves subject to conditions of probation that never end.  

In 2022, 12% of the Kansans lived below the poverty line. Amongst Black and Latino Kansans, 20.7% and 20.6 % respectively lived below the poverty line. For Native American Kansans that number was 17.6%. These are the individuals most in need of a government that works for them. However, due to the laws like the Kansas probation extension statute, they are most likely to remain permanently disenfranchised, unable to vote for a better tomorrow.  

It’s time to correct how our probation system and criminal legal system punish people for their poverty. We must use rigorous scrutiny to ensure that any infringements on privacy and movement imposed by probation on our fellow Kansans are truly reasonable, rather than a continuation of the legacy we claim to have left behind. 

1 Probation and Parole in the United States, 2022 | Bureau of Justice Statistics. 

2 Kansas 2022 | National Institute of Corrections.

3 In 2022, Missouri reported 18% of probationers were Black, Oklahoma reported that 19% of probationers were black, and Colorado reported that just under 10% of probationers were black.  

4 Probation and Parole in the United States, 2022.