September 14, 2018


OVERLAND PARK, Kan. – The Kansas Supreme Court agreed Aug. 29th to hear a case filed by the ACLU and its Kansas affiliate against Montgomery County Prosecutor Larry Markle for hiding diversion opportunities from defendants.
The court also ordered Markle to respond to the ACLU’s Mandamus petition, though it is not yet clear whether the court will order oral argument or decide the case over briefs.
The American Civil Liberties Union and the ACLU of Kansas filed the lawsuit in June on behalf of a faith-based organization against Markle 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 ACLU argued that 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 allowing defendants to seek incarceration alternatives such as treatment, community service, or restitution have proven financial and social benefits.
“These programs are essential to establishing 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 Karena Wilson, an Independence woman with no prior convictions, and the work the Kansas Crossroads Foundation (KCF), a faith-based organization providing drug rehabilitation and economic development services to Wilson County 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. 
Wilson was convicted of a minor theft charge. She was convicted of three misdemeanors, given 12 months of probation and ordered to pay a fine.
"Ms. Wilson was never informed in writing about Montgomery County's diversion policy," the lawsuit stated. "She was not told verbally."

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 more information, please contact Mark McCormick at the ACLU of Kansas at 913-490-4105, or by email at: [email protected].
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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