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Kansas Prosecutors Are Locking People Up Rather Than Offering — Or Even Telling Them About — Diversion

Somil Trivedi,
Former Senior Staff Attorney,
ACLU Criminal Law Reform Project
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June 8, 2018

Last year, Melissa Braham was driving from Colorado to Missouri with her boyfriend and her two children. The car broke down in Kansas, and then her life broke down as well.

A passerby called the police after allegedly smelling marijuana, and Ms. Braham was charged with possession of the marijuana and paraphernalia. She spent a month in jail pulling together her $2,500 bail and other fees, and eventually, she took a plea deal with six months of probation. This kept her confined to Kansas, a state where she knew no one.

She soon lost her job in Colorado. And then, horrifically, the state of Kansas took her children from her, placing them in foster care and a new, strange school. The family remains separated today.

Melissa Braham had no adult criminal record when she was prosecuted by Wilson County’s elected county attorney, Kenley Thompson. Her charges were extremely low-level. Given these facts, she was a good candidate for a program called “diversion,” by which defendants sign an agreement with prosecutors to stay out of trouble for a period of time, sometimes paying restitution, entering helpful counseling, or both.

If defendants successfully meet these requirements, the prosecutor dismisses the charges. And that’s the beauty of diversion. It’s an intelligent and necessary alternative to pursuing expensive and disproportionately harsh prosecutions that seek to maximize punishment and jail or prison time rather than rehabilitation and long-term safety. In Kansas, prosecutors would save $8.9 million annually if they simply offered felony diversion in line with the national average of 9 percent, to say nothing of misdemeanors like Ms. Braham’s.

But Thompson never even notified Ms. Braham of the existence of his county’s diversion program, despite the fact that notice is required by Kansas law. In 1980, the Kansas Supreme Court recognized that the notice requirement helps create a “uniform procedure to provide an alternative to formal conviction,” and the Kansas Attorney General’s Office has told the county attorneys under its authority that the purpose of the notification requirement is to “safeguard a defendant from discrimination by a prosecutor.” Therefore all county attorneys “must comply with the statutory diversion requirements.”

In effect, a prosecutor’s failure to notify defendants of the options that diversion programs offer represents an act of prejudice against the defendant. When the ACLU informed County Attorney Thompson that we were preparing to file a lawsuit on behalf of Ms. Braham, he did the right thing and agreed to overhaul his diversion programs to comply with the law. But stories like Ms. Braham’s are unfortunately far too common in Kansas, and the under-utilization of diversion by Kansas prosecutors is widespread.

So today, the ACLU and the ACLU of Kansas sued Thompson’s colleague Larry Markle of neighboring Montgomery County, one of many elected prosecutors across the state who are ignoring Kansas’ diversion statute. Our clients are Karena Wilson, a 19-year-old girl who was never notified of her diversion options on a first-time theft charge, and Kansas Crossroads Foundation, a faith-based organization that has expended time and resources counseling currently and formerly incarcerated folks who could have otherwise benefitted from diversion in Montgomery County.

Through this litigation, we are seeking to hold Kansas prosecutors accountable for their flagrant disregard for Kansas law, while also seeking a broader commitment from elected attorneys across the state to reform their practices and implement more inclusive, smarter diversion programs, rather than making the repeated choice to perpetuate mass incarceration. Indeed, we hope Kansas can be a model for the nation.

That’s because hiding the ball on diversion is not only illegal, it’s also bad policy. Diversion is a time-tested approach to law enforcement that reduces swelling prison populations, saves taxpayer money, and ultimately makes the community safer by keeping families together and giving folks the continuity and treatment they need to avoid reoffending. Diversion also frees up police and prosecutors to concentrate on more serious cases that truly will improve public safety.

State Rep. John Rubin (R-Shawnee) summarized it well: “It’s obviously better for the individual if we can get them treatment in the community where possible. It’s closer to home with more supports and that sort of thing. And it’s also better for society and public safety. It’s better all the way around.”

Study after study after study, including by the ACLU of Kansas, has shown that diversion is often the smarter choice. And yet, elected prosecutors across the county too often choose to pursue jail or prison time instead, blindly following the discredited, tough-on-crime approaches that have fueled America’s mass incarceration crisis.

Prosecutors have enormous power over the criminal justice system, and they can and should be held accountable for their actions — through litigation, legislation, and the ballot box — to ensure they pursue smarter, more humane approaches to safety and justice. Diversion is a giant leap in that direction.

The ACLU’s Campaign for Smart Justice is a multi-year project to cut America’s jail and prison population in half while reducing racial disparities in the system. Following efforts in New Orleans and Orange County, California, today’s lawsuit is the third the ACLU has filed since October as part of a nationwide effort to hold prosecutors accountable and reform our broken system.

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