ACLU of Kansas: Legislature needs to fix ‘endless probation’

An “endless probation” case is still dragging on in Kansas, with the defendant set to keep paying restitution for the next four decades, if legal reforms don’t address the situation.

Edwanda Garrett pleaded guilty in 2009 to making fraudulent content, and again in 2017 for writing bad checks. Garrett’s restitution included deducting $50 from her paycheck each month for the next 40 years. She is currently on her 13th year of probation, said her defense attorney, Kasper Schirer, during an Aug. 17 Kansas Court of Appeals hearing on the case.

The court rejected her case on technical grounds, without discussing the constitutionality of current state probation laws.

In Kansas, probation is limited to five years by state law, but it can be extended indefinitely if the defendant fails to pay court costs, fines and restitution. Legal advocates have pushed back against the practice, calling it unconstitutional. People do not have the right to vote while on probation and are subject to other measures, including mandatory check-ins, potential surveillance, questioning and travel restrictions. 

The American Civil Liberties Union of Kansas filed a June brief in support of Garrett, arguing that current probation laws are unconstitutional and unfairly affect people living below the poverty line. In the state, about 20% of all prison admissions are probation violators, according to the ACLU, which has said harsh probation measures set people up for failure. 

Sharon Brett, legal director for the Kansas ACLU, said the Legislature needed to examine the disparity in treatment caused by current probation laws.

“The ACLU is hopeful Ms. Garrett will have her constitutional rights vindicated in the lower court, and that her criminal judge will recognize that continuing Ms. Garrett on state supervision indefinitely due to her poverty serves no legitimate community interest,” Brett wrote in a statement for Kansas Reflector. 

The ACLU is currently pushing the state Legislature to reform a state law which allows probation to continue until the amount of court-ordered restitution has been paid.

Brett said the system promotes a two-tiered system of punishment, in which people who cannot afford to pay fines are punished much more harshly than those who can.

“Those that have the economic means to do so can buy their freedom, and along with it, the restoration of their ability to vote,” Brett said. “Those that do not, however, remain stuck in criminal legal system purgatory, denied the ability to participate in democracy, simply because of their poverty.”

Schirer declined to comment on the current situation, as litigation is still pending.