ACLU settles diversion-agreement lawsuit with Montgomery County prosecutor’s office

TOPEKA — The American Civil Liberties Union settled a lawsuit filed five years ago against prosecutors in Montgomery County for disproportionately seeking harsh sentences for defendants posing nominal risk to the public by declining to make available diversion program alternatives required under Kansas law.

The ACLU and ACLU of Kansas said Thursday the settlement was finalized with Montgomery County Attorney Lisa Montgomery, who operates out of the county seat in Independence. She agreed to adopt new policies on deferring prosecution in criminal cases, expanding eligibility for diversion programs and improving flow of information on this alternative to defendants.

“This is a huge win for people facing low-level criminal charges in Montgomery County, but even beyond that, this negotiated settlement should serve as a model for other counties for improving their diversion policies and procedures,” said Sharon Brett, legal director of the ACLU of Kansas.

She said research demonstrated diversion programs offered “a path to justice that could ultimately save taxpayers millions in needless incarceration costs.”

Montgomery, the county attorney in Montgomery County, declined to comment Thursday on the settlement. The lawsuit originally named then-Montgomery County Attorney Larry Markle as defendant. At the time the case was filed, Montgomery County used diversion in 1.7% of cases. The national average was 9% in 2017, the ACLU said.

The ACLU argued in a lawsuit filed in 2017 the county attorney routinely violated Kansas law by failing to properly inform defendants of their right to apply for a diversion. Programs associated with diversions typically emphasize counseling and behavior modification rather than jail.

Plaintiffs in the Montgomery County suit included Tristan Koehn and Karena Wilson. Neither were told of diversion options on low-level charges. Kansas Crossroads Foundation, a nonprofit providing ministry and support services to defendants in drug offenses, was an initial plaintiff in the case.

Somil Trivedi, senior staff attorney with the ACLU Criminal Law Reform Project, said prosecutors too often overcharged defendants to pursue sentences more likely to result in incarceration.

“Although the true solution is to keep people charged with low level crimes out of the system completely, under this agreement, more people will understand their options and, hopefully, more prosecutors will choose diversion and other alternatives over incarceration,” she said.

Under the agreement, the Montgomery County attorney’s office agreed to create a new diversion policy, diversion application and a template diversion agreement. The revised policy will remove financial barriers to participating in diversion. All diversion-related documents are to be posted to the county attorney’s website.

The county attorney’s office also agreed to inform Montgomery County defense lawyers of policy changes and notify unrepresented defendants of the diversion program when brought to court for first appearances.

Suzanne Valdez, the district attorney for Douglas County, said diversion agreements were beneficial to communities in terms of promoting accountability and rehabilitation among defendants.

“This agreement is in step with the best practices of district attorney offices across the state and across the nation,” said Wyandotte County District Attorney Mark Dupree.