TOPEKA — A new report by the American Civil Liberties Union found that more than 40% of inmates who enter Kansas prisons are being incarcerated for technical violations to probation.
The report argues for reform of the probation system, which is meant to keep people out of prison but instead has become a primary pipeline to a costly and overcrowded corrections system.
Judges set probation conditions that include mandatory check-ins, curfew and an order to stay away from undefined "disreputable" characters. Probation alone carries a fee of $125 to $500 for 12 months, depending on jurisdiction, along with additional costs for such things as rehabilitation programs, rent in a halfway house, an ankle monitor or a Breathalyzer.
“What we’re seeing is these people on probation are given high standards to meet and barriers to success," said Letitia Harmon, a former policy director for ACLU Kansas who worked on the study. "Probation actually feeds the incarceration crisis because we’re imprisoning people simply for violating these conditions.”
The ACLU plans to introduce a bill that would reshape probation in four ways. The proposed legislation arrives amid bipartisan momentum for criminal justice reform and ideas for reducing the prison population.
Lawmakers are expected to grapple with the decision to transfer at least 360 inmates to a for-profit facility in Arizona. The Kansas Criminal Justice Reform Commission uncovered problems surrounding suspended driver's licenses, and Gov. Laura Kelly wants to bolster programs to prepare inmates for release.
The ACLU hopes to build support for probation reform by making an economic argument. The cost to the state for someone in prison is $72.36 per day, Harmon said, but just $7.10 per day for someone on probation.
In 2018, the ACLU found, Kansas prisons admitted 2,019 people who committed new crimes. An additional 1,607 people were sent to prison solely for technical violations to probation. The 2019 numbers were following a similar pattern.
Probation violations were contributing 44% of the new prison arrivals and accounted for 10% of the total prison population.
“They’re there not because they did something violent, not because they are a threat to public safety, but because they missed a check-in or they couldn’t pay a fee, or they weren’t able to find employment,” Harmon said.
The ACLU's proposed changes start with an earned compliance credit. Instead of punishing probationers for breaking the rules, they would see an incentive of receiving 30 days off their sentence for 30 days in compliance.
Missed check-ins are the No. 1 way in which people violate parole. The ACLU wants to provide other options for checking in, such as clocking in at work or attendance at a treatment program or school.
Harmon said many people on probation struggle to find transportation, especially if they have lost their driver's license, and sometimes have to choose between missing work or missing a mandatory appointment.
“If my probation officer tells me I have to hop in for a (urine analysis) with 24 hours' notice," Harmon said, "but I’m scheduled to work that day, do I violate my probation by not showing up to take the UA, or do I violate my probation by not keeping my job? They have to actually make those decisions.”
The ACLU also proposes a simplification of probation requirements. The directive to avoid the company of any disreputable character, for instance, is vague and unfair, Harmon said. The judge could consider someone's mother to fit the description, she said. The argument is that a probationer should understand what the requirements mean.
The final recommendation is to stop sending people to prison for technical violations when the underlying crime wasn't serious enough to send a person to prison in the first place.
“I think the interesting thing you find on criminal justice reform is that it is often the most conservative people who are on board," Harmon said. "I think the people who end up opposing this tend to think of themselves as moderates, and they still have this internal tough-on-crime narrative, and what they’re unwilling to recognize is that the tough-on-crime approach to criminal justice has just resulted in tearing families apart and relying on a punitive imprisonment system that is financially unsustainable, and in many ways immoral.
"We have to get past that narrative, that it’s an effective way to have a safe society. It hasn’t worked, and we’re just relying on sending people to jail for everything.”
Sen. Kevin Braun, a Republican from Kansas City, Kan., said he is concerned with reducing the size of the $350 million budget for state prisons, especially in light of the decision to move up to 600 inmates to a private prison in Eloy, Ariz.
"When I look at it from the numbers perspective, I say if we had the ability to do this and we could reduce our costs, then that is fantastic," Braun said. "There is a math argument to be won there. And then I look at it from the human, Christian perspective, and I say, this is a good way to treat people."
Braun participated in December in a roundtable discussion in Leavenworth with the governor, business leaders and former inmates who secured employment after working a job for a private company while in the corrections system. Business leaders frustrated by a shortage of skilled workers expressed interest in broadening programs that would allow them to invest in operations inside prison walls, such as welding shops.
Kelly said her vision is for state prisons to become centers of rehabilitation and workforce training.
"We’ll always have the punitive side," Kelly said. "You’ve got to. But most of the people in prison will be coming back in our communities, so we’ve got to spend the time we’ve got with them to provide them with socio-emotional training and also skill training that they need so that when they come out, they can be gainfully employed and contributing members of the community and not end up back in the system."