ACLU of Kansas argues probation shouldn’t depend on ability to pay fines

TOPEKA — The American Civil Liberties Union of Kansas is arguing a state law allowing probation to be extended for the failure to pay fines and fees should be struck down as unconstitutional.

A brief the ACLU filed Monday in state appeals court stems from the Johnson County case of Edwanda Garrett, who is appealing the continued punishment and extensions of probation that have resulted because of her inability to pay outstanding fines and fees. Under the statute in question, the term of probation can be repeatedly extended by the court if one is delinquent in these payments.

Sharon Brett, legal director at the ACLU of Kansas, said the statute creates a tiered system of punishment, violating the Equal Protection Clause of the 14th Amendment by imposing this wealth-based standard. This clause requires that bodies not distinguish between individuals based solely on differences that are irrelevant to the objective.

“If you are wealthy, you are able to complete probation and move on,” Brett said. “If you are not wealthy, you get trapped in the system, with all of its harmful consequences for years and years without recourse.”

In the case Bearden v. Georgia, the U.S. Supreme Court said authorities cannot revoke someone’s probation for failing to pay fines and fees unless they willfully fail to do so. The nation’s highest court has previously struck down punishment schemes that disproportionately affect those without the financial means.

Brett said the lack of specific language in the Kansas law about whether someone is willfully failing to pay fines is the basis of the ACLU’s concern. She said a person does not need to have probation revoked to be subjected to continued punishment.

“Probation comes with a whole host of onerous conditions that are incredibly difficult to comply with,” Brett said.

The current process of continued probation in Kansas is counterproductive because the probationary requirements often make earning money more difficult, Brett said.

“You have onerous reporting requirements and check-ins with your probation officer, and you’re subjected to a whole host of other conditions, which could include curfews and drug testing,” Brett said. “Many employers may be unwilling to take you on as an employee while you’re on probation.”

Earlier this year, the ACLU was among groups seeking to end the practice of fines and fees for juveniles in the legal system.

According to the National Juvenile Defender Center, based on juvenile courts that track income levels, the youths’ families have an annual income of less than $20,0000. Fines and fees assessed to children can propel them and their parents into a cycle of involvement with the criminal justice system.