ACLU Settles Five Year Lawsuit Over Illegal Diversion Practices in Kansas County 

May 5, 2022 

Mark McCormick, ACLU of Kansas, [email protected]
Elsa Rainey, ACLU, [email protected]

INDEPENDENCE, KS – In a victory nearly five years in the making, the American Civil Liberties Union and American Civil Liberties Union of Kansas finalized a settlement of a 2017 lawsuit against the County Attorney of Montgomery County, Kansas that improves the office’s diversion policies, expands diversion eligibility, and better protects poor and marginalized individuals seeking to benefit from the program. 

Plaintiffs in the case include Tristan Koehn and Karena Wilson, both of whom were never notified of their diversion options following low-level charges. The Kansas Crossroads Foundation, a nonprofit organization providing ministry and support services to defendants convicted of drug offenses, was also a plaintiff earlier in the case.  

“This is a huge win for people facing low-level criminal charges in Montgomery County, but even beyond that, this negotiated settlement should serve as a model for other counties for improving their diversion policies and procedures,” said Sharon Brett, legal director of the ACLU of Kansas. “Studies have shown that diversion offers a path to justice that could ultimately save taxpayers millions in needless incarceration costs.”

The case argued that the County Attorney regularly violated the law by failing to properly inform defendants of their right to seek diversion and failing to provide diversion conferences. Diversion programs emphasize counseling, treatment, and behavior modification over punitive measures.

“Prosecutors across the country too often overcharge and over-punish people, ultimately opting for the most cruel and expensive punishment available — jail or prison,” said Somil Trivedi, a senior staff attorney with the ACLU Criminal Law Reform Project. “This is a big win.  And although the true solution is to keep people charged with low level crimes out of the system completely, under this agreement, more people will understand their options and, hopefully, more prosecutors will choose diversion and other alternatives over incarceration.”

Under the settlement agreement the following changes will be made to diversion practices in the county:
•    The County Attorney will adopt a new Diversion Policy, Diversion Application, and Template Diversion Agreement;
•    All diversion-related documents will be posted on the County Attorney’s website;
•    The County Attorney will notify both the Montgomery County defense bar of the policy changes and will notify unrepresented defendants of the diversion program when they are brought to court for their first appearances ensuring that all individuals receive notice of their potential eligibility for diversion;
•    The new policy will remove financial barriers to participating in diversion for those who cannot pay; and
•    Anyone not statutorily barred by KSA 22-2908(b) will be eligible for diversion.

Other Kansas district attorneys support the settlement.

“It is encouraging to see other jurisdictions implementing the same types of robust alternative programming our office has in place,” said Suzanne Valdez, Douglas County Prosecutor. “Diversion programs benefit the community by promoting both accountability and reformation.”

Wyandotte County District Attorney Mark Dupree also positively weighed in on the settlement.

“This agreement is in step with the best practices of district attorney offices across the state and across the nation, and beyond,” Dupree said. “Our office hopes more and more district attorneys adopt this posture.”

In a December 2017 report the ACLU of Kansas found Kansas prosecutors only used diversion practices in felony cases at half the national average and that Kansas could reduce its prison population and save $8.9 million annually if prosecutors embraced diversion at the nine percent national average. At the time the case was filed, Montgomery County used diversion at a 1.7 percent rate. By raising the use of diversion to the national average, the county could save taxpayers $234,125 annually. 

This release is available online here:  
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About the ACLU of Kansas: The ACLU of Kansas is the statewide affiliate of the national American Civil Liberties Union. The ACLU of Kansas is dedicated to preserving and advancing the civil rights and legal freedoms guaranteed by the United States Constitution and the Bill of Rights. For more information, visit our website at