TOPEKA, Kansas — Diversion deals keep criminal charges off someone’s record and even spare them jail time, assuming they can afford the cost of the diversion.
A DUI diversion in Thomas County, northwest Kansas carries a $750 fine and $158 in court costs, but the county adds an extra, mostly unheard-of stipulation: a donation to the schools after-school program Colby’s public.
That donation is written in black and white in the diversion agreement. The $315 After School program earned 26 people $5,850 in 2022. Most people had court orders to pay about $200.
“I really don’t think that was how the diversion was meant,” Congressman Stephen Owens said in December. Owens is the Republican chairman of the House Corrections and Juvenile Justice Committee.
Donation-bypass clauses are technically permitted under state law, but Owens said he’s looking into the program.
Christopher Rohr, the county attorney for Thomas County, sets the rules for his diversion program. He said he would review his policy to see if any changes were needed.
Rohr did not respond to questions asking whether anyone had ever been sent to prison because they could not afford the donation.
Even with lawmakers likely to step in, the language in Thomas County underscores concern that diversion is too costly and prevents people from getting the help they need.
Jessica Glendening, the chief public defender in Shawnee County, said the clause in Thomas County is unusual. But Glendening has worked in legal defense for decades and said the diversion regularly comes with covenants that can harm low-income Kansans.
While Thomas County has donations to public school programs, other counties have created fines specifically to fund violence prevention programs. He has heard that some counties require money seized from an arrest to be confiscated from law enforcement, sometimes costing people thousands of dollars. Other times, diversion fees can be as high as $10,000.
He wants the diversion handled by the courts so the state has a consistent approach. Currently, each county can set the terms of its own diversion agreements.
“Diversion should be an attempt at redemption, atonement and reduction of recidivism,” he said, “and the goal should be closely tied to those things.”
Diversion keeps criminal charges off someone’s record by accepting a list of alternative punishments. They can be fines for the crime, cover the court costs created by the crime, or go through treatment programs.
For a DUI, this could teach someone how to manage their alcohol use. The diversion may also require an apology note from the victim. Whatever the program, Glendening and others say it needs to focus less on monetary punishment and more on rehabilitation.
“The ability to pay money is not a real form of accountability or real ties to behavior change or learning opportunities,” said Priya Sarathy Jones, deputy executive director of the Fines and Fees Justice Center.
Sarathy Jones said fines and taxes don’t distribute punishments fairly. Wealthier offenders may not even notice a fine. For others, it could mean missing meals.
KCUR reported in October that the diversion can cost people hundreds of dollars, but makes up only a small fraction of a city or county’s budget. This has led to fears that he has created a two-tier justice system: one for people who can afford the cost without much pain, and a more onerous one for the poor.
Sarathy Jones said punishing someone monetarily — such as through a donation — doesn’t make them any less likely to reoffend. She wants counties and cities to eliminate taxes because the diversion and justice systems are key functions of government and she said they should be funded by everyone.
“It’s incredibly low what can derail a person’s day-to-day life financially,” he said.
Blaise Mesa reports on criminal justice and social services for the Kansas News Service in Topeka. You can follow him on Twitter @Blaise_Mesa or email him at [email protected].
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