The American Civil Liberties Union and its Kansas affiliate have filed suit against the Montgomery County Attorney, alleging he failed to follow state law in the use of diversion programs.
The suit was filed Friday with the Kansas Supreme Court, according to a news release from the ACLU. It requests that Montgomery County Attorney Larry Markle be required to create written diversion policies and guidelines; provide written notice of diversion programs to defendants charged in Montgomery County, and hold diversion conferences for defendants offered diversion.
Markle was out of town and unavailable for comment.
Friday's suit is part of the ACLU Campaign for Smart Justice, an effort to reduce the country’s jail and prison population by 50 percent and to fight racial disparities in the criminal justice system, the news release said. It is the third filed nationally against district attorneys, following similar suits in New Orleans and Orange County, Calif.
In diversion, defendants can ask that instead of jail time, prosecutors direct them to an alternate program or sentence. That can include treatment programs, community service or restitution.
"Our state legislature created diversion programs and created a statutory framework that basically requires prosecutors to at least consider cetain people and certain offenses for diversion," said Lauren Bonds, legal director for ACLU of Kansas.
The ACLU said in a news release that Kansas prosecutors use diversion in felony cases at half the national average. It says the state could save about $9 million annually and reduce its prison population if prosecutors used diversion at the national rate of 9 percent.
Friday's suit was filed on behalf of Karina Wilson and the Kansas Crossroads Foundation.
Wilson was 18 when she was arrested in June 2017 for breaking into a pop machine in Independence, Kansas. She pleaded guilty to three counts of misdemeanor theft and was fined $2,000 and given a year's probation, the suit says.
The suit maintains Wilson was never informed about Montgomery County's diversion policy. Because she had no prior convictions, she would have been a candidate for diversion.
The suit also says the county's actions regarding diversion programs had a negative impact on the Kansas Crossroads Foundation, a faith-based organization that provides drug rehabilitation and other services to people in Wilson and Montgomery counties convicted of low-level drug offenses.
"The fact is that diversion and the lack of compliance with the statute really can impact real people like Karina Wilson and orginzations that are trying to do really imporant work, like the Kansas Crossroads Foundation," Bonds said.
"There needs to be acknowledgement that everyone's human and everyone makes mistakes. We really are advocating for diversion for nonviolent first-time offenders."
Tom Shine is director of news and public affairs at KMUW.
