ACLU Sues Kansas County Prosecutor for Hiding Diversion Opportunities from Defendants and Failing to Combat Mass Incarceration

WICHITA, Kan. – The American Civil Liberties Union and the ACLU of Kansas filed a lawsuit today on behalf of a faith-based organization against a county prosecutor for failing to implement diversion programs in accordance with Kansas law and for pursuing the expensive and disproportionately harsh prosecution of individuals posing minimal community risks.

The lawsuit was filed today in the Kansas Supreme Court against Montgomery County Attorney Larry Markle. At a time when Kansas prisons have swelled beyond capacity, costing taxpayers millions of dollars, Markle and Montgomery County drastically underutilize diversion compared to the national and state average, despite the fact that diversion programs that allow defendants to seek incarceration alternatives such as treatment, community service, or restitution have proven financial and social benefits.

“These programs are essential to establish a rehabilitative rather than punitive criminal justice system,” said Somil Trivedi, staff attorney with the ACLU’s Trone Center for Justice. “Ignoring the legal requirements to provide notice to defendants of the existence of these programs, and to not discuss these options with those who qualify, is against the law. We’re taking action in Kansas to send a message to prosecutors that it’s their obligation to uphold the law and serve their community, not just rack up as many convictions as they can.”

Markle’s failure to follow Kansas diversion law negatively impacted the work the Kansas Crossroads Foundation, a faith-based organization that provides drug rehabilitation and economic development services to Wilson and Montgomery County defendants convicted of drug offenses.

Since many KCF clients were likely not given the opportunity to apply for diversion, KCF has had to divert critical resources away from rehabilitation programs to conduct jail counseling sessions and help defendants comply with the terms of their probation or parole.

The ACLU originally intended to also file on behalf of Melissa Braham, a single mother of two, alleging that Wilson County Attorney Kenley Thompson violated Kansas law by failing to provide statutorily required notice of diversion options to criminal defendants like Braham, and failing to provide statutorily required diversion conferences to those who qualified for the program. This clearly deterred potential qualified candidates.

Braham, from Colorado, had no adult criminal history when she was arrested and charged with misdemeanor marijuana and paraphernalia possession last year. But rather than being steered into or even given notice of diversion, she was jailed for a month on high bond, took a plea with onerous probation, had her children taken from her and placed in foster care, and has had to remain in Kansas until she can regain custody.

But on Wednesday, Thompson offered to alter and improve Wilson County diversion programming and thus wasn’t included in the lawsuit.

Last year, the ACLU of Kansas released a report that found Kansas prosecutors utilized diversion in felony cases at half the national average. Kansas could reduce its prison population and save $8.9 million annually if Kansas prosecutors embraced diversion at the national average of 9 percent.

Following efforts in New Orleans and Orange County, California, today’s lawsuit is the third the ACLU has filed against active district attorneys since October as a part of nationwide efforts to reform prosecutorial practices nationwide.

The ACLU Campaign for Smart Justice — an unprecedented effort to reduce the U.S. jail and prison population by 50% and to combat racial disparities in the criminal justice system — has launched this new, multi-year initiative to ensure prosecutors are held accountable for fueling mass incarceration and racial disparities in the criminal justice system. The ACLU accomplishes this through legislative advocacy, voter education, and litigation efforts to change incentives for prosecutors and achieve its decarceration goals.

The ACLU of Kansas is dedicated to ending mass incarceration in the state and advocates for reforms to make the justice system fair to all Kansans, regardless of race. Among its efforts, the organization has created You Make the Case to focus public attention on prosecutors’ potential to reduce mass incarceration.

For the complaint, visit:
https://www.aclu.org/legal-document/kansas-crossroads-foundation-v-markle-petition

For “Choosing Incarceration,” the ACLU of Kansas report on prosecutors’ use of diversion:
https://www.aclukansas.org/sites/default/files/field_documents/choosing_incarceration_-_aclu_report_on_diversion_in_kansas_-_december_2017.pdf

For more information:

ACLU Smart Justice
https://www.aclu.org/issues/mass-incarceration/smart-justice/campaign-smart-justice

ACLU of Kansas
www.aclukansas.org

This press release is available at:
https://www.aclu.org/news/aclu-sues-kansas-county-prosecutor-failing-pursue-diversion-practices-and-combat-mass