If Kansas were a country, its incarceration rate would be second only to that of the U.S.1 Kansas faces a significant overcrowding issue in its prisons. A notable contributing factor to the state’s high rate of incarceration is imprisonment due to technical violations of probation.
Probation is meant to be a sentence that replaces incarceration for low-level, non-violent crimes. Yet many people on probation still end up serving time in a penitentiary due to technical violations of the conditions of their probation. A technical violation is not a crime. It is an act that is not unlawful, but simply violates the conditions of probation.
In 2018, close to 1,250 Kansans’ probation was revoked without a new conviction. These Kansans make up over 10% of the total state prison population. In addition to the enormous pressure this number puts on the capacity of the state’s prisons, incarcerating individuals for technical supervision violations costs the state $39 million annually.
In fact, the cost of incarceration is ten times that of probation: The cost to the state of probation per person per day is $7.10, versus the cost of incarceration which is $72.36 per inmate per day.
Incarcerating Kansans for technical violations of probation demonstrates an overreliance on the prison system and a failure to utilize rehabilitative resources for the benefit of re-entering Kansans and their communities.
1 The Prison Policy Project calculated the number of people in state prisons, local jails, federal prisons, and other systems of confinement from each U.S. state per 100,000 people in that state and the incarceration rate per 100,000 in all countries with a total population of at least 500,000. Institute for Criminal Policy Research’s World Prison Brief in May 2018 provided data for comparison. A detailed breakdown of their methodology can be found here: https://www.prisonpolicy.org/global/2018.html
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Thursday, December 12, 2019 - 1:30pm
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The more that citizens participate in a democracy, the stronger that democracy becomes. Voting, one of our most cherished rights as Americans, is the lifeblood of a healthy democratic system. When the right to vote is not robustly defended, or when a culture that minimizes the importance of citizen participation in elections is cultivated, it saps the strength and soul of our democracy.
When it comes to the strength and soul of our democracy, something is not right in Kansas. In the 2016 presidential general election, Kansas’s voter turnout was just 59.2%—good enough to be 34th in the country and far below the nearly 75% rate in states with the highest turnout. In the 2018 midterm general election, turnout was slightly over 50%, which still put Kansas in the bottom half of state turnout rates.1 Kansas ranks 40th in the country for the percentage of eligible voters who are actually registered.2 In terms of the representation of its actual population in the electorate, a 2016 report noted that Kansas ranks 46th in the country, with racial minorities and young people dramatically underrepresented in the state’s electorate. Most troubling of all, a recent research report found that Kansas was the 9th hardest state in which to cast a ballot.3
These realities indicate that Kansas can, should, and must do better at increasing citizen participation in elections. The reasons for relatively low voter turnout in Kansas are many, and commonly cited culprits like voter disinterest or the uncompetitive nature of some state elections do play a role. However, Kansas clearly has not taken many of the proactive measures that other states have implemented to increase voter turnout.
Kansas and other states have not taken more proactive steps in part because of the way elections are administered in the United States. Under the American federal system, elections in the United States are among the most decentralized in the world. There is no uniform national standard for who is eligible to vote, when elections are held, how they are run, or how cumbersome it is for citizens to participate in them. The 2018 elections highlighted for many Americans the vast differences in election administration between states. For example, states that have aggressively adopted vote-by-mail laws often did not have final results for days after November 6 because of the time needed for those ballots to make their way to election authorities.
Of course, Kansans know well the impact state law can have on individual citizens’ access to their right to vote. Until a federal judge struck it down as unconstitutional in 2018, Kansas’s “papers please” law deprived tens of thousands of citizens of their right to vote based on their inability to produce paperwork demanded by Secretary of State Kris Kobach.
Although this attention to the differences between states is important, what still escapes the attention of many is that differences in voting rights policy exist not just state by state, but county by county. The hyper-decentralized nature of our election administration system gives an enormous amount of power to local election officials to decide how to run elections and how to protect voting rights in their communities. These decisions in turn influence election participation rates and how representative the electorate is—or is not—of the citizens in these communities.
There is an old adage that “all politics is local”—that is, local relationships and local issues determine who wins and loses elections, the strength of any political movement is based on the sum of local conditions, and the ultimate test of whether a policy is helpful or harmful is how it is felt at the local level.
This concept can be taken one step further. Not only is all politics local, but all democracy is local, too. The strength of our democracy, the richness of our civic culture, and the extent of citizen engagement are lived and experienced at the local level. Thus, the strength of our democracy relies on decisions that local election officials make. While the range of decisions county election officials can make is somewhat constrained by state statute, these officials actually have much broader power over voting rights policy at the local level than is usually recognized. Contrary to public belief (and perhaps even contrary to some election officials’ perception of their own roles), the job of county election officials is much more than just counting votes—it is to foster a culture where democracy thrives.
Even as election officials should be encouraged to fully embrace their role as advocates for expanded participation in elections, this must be done cautiously and in the shadow of an outgoing Secretary of State who managed to expand his authority as he railed against voting rights. The achievement standard for the men and women serving as county election officials should be climbing registration and a simultaneous decrease in the reliance on provisional ballots.
This report explores the extent to which Kansas’s local election officials are doing that work. It examines the wildly divergent policies and practices used by Kansas’s 105 local election officials. Kansas counties have a patchwork quilt of policies and practices related to election administration, with very real consequences for voting rights and the strength of our democracy.
Some local election officials across Kansas are using powers of their office to protect voting rights and strengthen democracy and should be commended for doing so. However, enormous work remains to be done because too many local election officials have adopted policies that do not actively foster a culture where democracy can thrive, including:
- Under-utilizing in-person early voting, through short early voting periods, restricted early voting hours, or a minimal number of early voting locations.
- Reducing the number of polling places, sometimes to unjustifiable levels.
- Failing to conduct outreach to young voters on college campuses and voters with disabilities and mobility issues.
- Creating obstacles to voter registration and contributing to a serious problem of under registration.
- Over-using provisional ballots and rejecting far too many votes that should be counted.
These decisions by local election officials have a direct and immediate impact on voter turnout and the overall health of our democracy. Jurisdictions that made extensive use of early voting, had ample and accessible polling places, and conducted outreach to a wide variety of groups were ones that had higher voter turnout.
Reforms that would address these problems have been tried successfully elsewhere. These reforms are easily implemented, readily affordable, and well within the purview of local election officials. They also demonstrate that despite our society’s considerable political rancor, citizens want to participate, and they do—once arbitrary barriers to voting are removed.
This report recommends that local election officials use the power and discretion they already have to improve their policies and practices by:
- Expanding early in-person voting periods to the full 20-day maximum allowed by current state law and expanding poll access into evenings and weekends.
- Expanding the number of polling places to reduce wait times and ensuring that those polling locations are geographically distributed across the jurisdiction and in locations that are safe and welcoming for all voters.
- Taking greater pains to ensure that voters with disabilities have full and equal access to the polls with curbside voting.
- Beginning or expanding outreach efforts to groups under-represented in the electorate, especially younger Kansans, Black Kansans, and Hispanic Kansans.
- Prioritizing the identification of strategies for reducing the number of provisional ballots cast and rejected, and converting those provisional ballots to “regular” ballots.
In far too many ways, the health of our democracy—and the extent to which an individual citizen’s vote counts—is based on the county in which one lives. The Kansas Legislature should institute common-sense reforms to our state’s election laws that will better empower local officials to create a culture of citizen participation. These modest, proven reforms include:
- Expanding the maximum number of days of in-person early voting permitted by law.
- Establishing a minimum number of days of in-person early voting.
- Requiring counties to offer a minimum number of hours of weekend and after-hours in-person early voting.
- Providing better guidance on provisional ballots, so that there is more consistency from county to county in which ballots are counted.
- Enacting an Election Day Registration statute in Kansas.
- Passing legislation that gives all of the state’s voters the right to elect their own election officials.
Having endured an 8-year long experiment in voter suppression, Kansans understand better than most the costs that low levels of citizen participation have on our democracy. Strengthening democracy and restoring our civic health begins at the local level, because all democracy is local.
Kansans should work directly with their local election officials and state legislators to embrace the recommendations featured here. We can ensure that Kansas leads the nation in citizen participation in elections and defense of the constitutionally protected right to vote.
Date
Thursday, December 13, 2018 - 11:15am
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2019 LEGISLATIVE PRIORITIES
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The crime rate in Kansas has fallen significantly over the last 40 years, but incarceration has more than quadrupled. In October 2017, the Kansas prison population stood at almost 10,000 people and on some days exceeded the system’s capacity. The costs of maintaining such a massive prison system have escalated dramatically over the course of four decades, putting an unnecessary burden on Kansas taxpayers.
Keeping nearly 10,000 Kansans in prison, many of them due to mental illnesses or substance abuse conditions, cost Kansas taxpayers $229 million in 2016 and results in overcrowding that endangers correctional officers. Such epidemic levels of incarceration make Kansas communities less free, healthy, strong, and safe.
There are alternative approaches to our criminal justice system that would make Kansas communities safer and stronger, while reducing incarceration and the cost to taxpayers. Diversion is one such approach. Diversion is when the prosecutor, who is an elected official, allows selected individuals to avoid criminal charges if they follow a prescribed program of treatment, restitution, and/or community service.
Diversion programs have a long and proven track record of reducing incarceration and costs, dramatically reducing the likelihood that an individual will commit another crime, ensuring that people get treatment and services they need, and making communities safer and stronger.
Diversion works, but it is a strategy that is not being used effectively by elected prosecutors in Kansas.
In fact, Kansas prosecutors use diversion at just half of the national average, or in about 5% of all felony cases, despite the fact that 94% of Kansans want their local prosecutor to use diversion more often.
Instead of embracing diversion, prosecutors in Kansas choose incarceration. If Kansas were to truly embrace diversion, it could reduce the state’s prison population by as much as 10% and cut government spending by $8.9 million. This report explores the reasons for the low diversion rate in Kansas. It examines the wildly divergent policies, practices, and outcomes related to diversion in all 105 counties.
There are several reasons that diversion is not an effective tool in Kansas, including:
• Local prosecutors flaunt the state law that requires them to have formal diversion policies.
• Prosecutors have created a web of unnecessarily harsh rules that leave thousands of people ineligible for diversion.
• Diversion programs are a well-kept secret, with many eligible applicants totally unaware of the option’s existence.
• Enormous fines and fees make participation difficult even for those who are able to navigate the eligibility guidelines.
• A near-total lack of data makes accountability, transparency, and improvement difficult.
• Limited capacity and funding reduces the options for diversion applicants and prosecutors.
But the most important reason that diversion is not an effective tool in Kansas is that too many of the state’s elected prosecutors simply refuse to use it. The major impediment to the broader use of diversion—and the incarcerationreducing, recidivism-limiting, communitystrengthening benefits that accompany it—is not lack of resources or capacity, nor statutory constraints, nor public hostility.
The major impediment to diversion in Kansas is that elected county and district attorneys use their prosecutorial discretion to discourage, prohibit, refuse, and reject diversion in cases where it would be appropriate.
Prosecutors’ rejection of diversion has real costs for Kansas, in increased incarceration, increased costs for taxpayers, and communities that are less safe and vibrant. This report offers recommendations to address this set of problems, including:
• Requiring prosecutors to make all defendants aware, at the time of arrest, that they can request diversion.
• Standardizing the diversion process, with a single, uniform application and a requirement that denied applications receive a written response.
• Reducing fees and fines.
• Enhanced transparency and data collection about diversion, especially at the county level.
Kansas can—and should—be a national leader in the use of diversion. Embracing these recommendations would help Kansas achieve that goal. Increasing the use of diversion would reduce incarceration, provide treatment and services to improve community health, reduce costs to taxpayers, and make families and communities safer and stronger.
Update
Following the release of Choosing Incarceration, several counties that originally reported having no formal diversion policy or application reported that they had since developed one. An updated copy of the report reflecting this information can be found below.
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Wednesday, December 6, 2017 - 9:00am
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