A new lawsuit filed in federal court Thursday challenges a state law that allows judges to extend probation beyond an established ceiling if someone is unable to pay restitution.
The lawsuit, brought by the American Civil Liberties Union of Kansas on behalf of four plaintiffs, was lodged against Attorney General Kris Kobach as well as six current and former Johnson County judges.
The lawsuit says the judges have relied on the language in Kansas law to extend plaintiffs’ probation beyond the standard five-year probation ceiling, and “even beyond the recommended term of imprisonment provided by the sentencing guidelines.”
The lawsuit said state statutes provide a higher ceiling to punish poor defendants than it does for defendants who commit identical offenses but have the ability to pay court-ordered restitution. The lawsuit says there is no ceiling for the less-affluent.
“The Kansas Legislature set a probation period ceiling for every probationer except for probationers who are unable to pay restitution,” the lawsuit says.
The language of the law “enables the unconstitutional practice and the county’s implementation confirms the constitutional harm,” the lawsuit says.
“The protection from arbitrary and unequal treatment under the law is a fundamental right under the constitution, and that includes unequal treatment based upon how much money you have,” said Monica Bennett, the ACLU’s legal director.
“There is nothing about being poor that means you should be treated differently when serving a probation term; but it’s apparent that if our clients and many other Kansans were simply able to pay, their rights would be restored,” she said in a statement.
“Were they simply wealthier, they would be allowed to eat in the same restaurants as other people, vote like other people, and visit family in other states like other people — but they can’t while on probation.”
The lawsuit was brought on behalf of four plaintiffs: Jeffrey Englund of Shawnee; Alicia McKnight of Kansas City, Missouri; Alanna Marie Carter of Independence, Missouri; and Debra Nicole Rice of Bates City, Missouri.
Each was sentenced to probation from 2016 to 2018. The ACLU said the judges extended probation terms on multiple occasions so the plaintiffs’ probation was years, or even decades, longer than the probationary period originally prescribed by the Legislature.
Here’s a look at the cases cited in the lawsuit:
- McKnight was 30 years old when she was convicted and sentenced in Johnson County District Court for four counts of identity theft. She was sentenced to eight months in prison and 18 months of probation. She was ordered to pay $76,838 in restitution. McKnight said she had no means of paying restitution because she had been in prison and could not return to her teaching job. She said she had no source of income or assets with which to pay the debt. The lawsuit said McKnight will serve a minimum of more than 11 years on probation, 10 years longer than the law allows.
- Carter was 26 years old when she was convicted and sentenced in Johnson County Court on one count of computer crime and one count of theft. She was sentenced to six months in prison and 18 months of probation. She was ordered to pay $7,631 in restitution. Carter stated she had no means of paying the restitution because at the time probation was ordered she had just given birth to a child and was unemployed. Carter will now serve a minimum of 10 years on probation, the lawsuit said.
- Rice was 23 when she was convicted of one count of forgery and sentenced to 18 months of probation with an underlying sentence of seven months in prison and 12 months post-release supervision. She was ordered to pay $17,002 in restitution. Rice will serve a minimum of eight years on probation, more than six years longer than allowed under law, the lawsuit said.
- Englund was 40 when he was convicted and sentenced in Johnson County District Court on one count of mistreatment of an elderly person. He was sentenced to 36 months’ probation along with $38,607 in restitution. He had not been able to pay his restitution. The lawsuit said Englund had struggled to find work because of his probationary status. Englund will ultimately serve a minimum of eight years on probation, more than twice the length of his original 36-month sentence, the lawsuit said.
Generally, judges have wide discretion in deciding which conditions of probation to impose on someone who is on probation, the lawsuit said.
“Even though Kansas laws require the defendant judges to order restitution, the defendant judges have the authority to find that repayment of restitution in full or in part is not workable for a probationer,” the lawsuit said.
“The defendant judges are not required to extend probation where there is outstanding restitution; it is merely within their discretion to do so,” the lawsuit said.
