The American Civil Liberties Union of Kansas on Wednesday issued a report critical of what it calls a “severe under-utilization” of diversion practices by county prosecutors across the state, but highlighted the practices of Shawnee County District Attorney Michael Kagay as an example of a positive exception.
According to a news release from the ACLU, the report followed “an exhaustive, multi-month investigation into diversion practices in all 105 counties in Kansas.”
The report offered details about diversion practices by county prosecutors and the negative social and financial consequences the underutilization has for Kansas families and communities.
The report, titled “Choosing Incarceration,” reveals that county prosecutors in Kansas use diversion at an “abysmally” low average of 5 percent for felony cases, which is half the national average. The report went on to state that 23 counties in Kansas offer no felony diversions at all.
Among the “few exceptions” is the work being done by Kagay, the Shawnee County district attorney. The report states Kagay “routinely uses diversion” in 8.1 percent of felony cases, “resulting in better financial and social outcomes for his constituents and the community.”
In the process, the report stated, Kagay is saving thousands in taxpayer dollars while preventing Shawnee County jails from becoming overcrowded, and, “most importantly, makes Shawnee County safer, stronger and freer.”
The ACLU said that elected county prosecutors are the sole gatekeepers to diversion and determine “how, when and at what rate diversion is used in their respective counties.”
According to the ACLU, this “prosecutorial discretion carries enormous — and unchecked — power, and, as our investigation revealed, too many Kansas prosecutors act as the antithesis to Kagay, choosing instead to abuse that power to discourage, prohibit, refuse and reject diversion in cases where it would be appropriate and beneficial to both the offender and the community.”
In the diversion program, low-level, non-violent offenders are offered an alternative to prison, such as completing community service, paying restitution or undergoing treatment for underlying behavioral or mental health issues.
“Diversion programs benefit the community in innumerable ways,” the ACLU stated. “They prevent jails from becoming dangerously overcrowded, save millions in taxpayer spending every year, and connect Kansans, many with mental or behavioral health challenges, with the tools they need to avoid re-offending instead of strapping them with the lifelong consequences of a criminal record.”
In a recent poll, the ACLU said, 94 percent of Kansans supported the increased use of diversions in their county.