ACLU of Kansas files lawsuit challenging linkage of probation to restitution payments
Micah Kubic, executive director of the ACLU of Kansas, says Johnson County District Court judges violate constitutional rights of defendants in application of probation. In this image, Kubic addresses a crowd Oct. 8, 2024, in Kansas City, Kansas. (Photo by Tim Carpenter/Kansas Reflector)
TOPEKA — The American Civil Liberties of Kansas filed a federal lawsuit Thursday challenging decisions of judges in Johnson County District Court to order probation based on whether a defendant can pay restitution to victims.
ACLU of Kansas and the law firm of Willkie Farr & Gallagher filed a petition on behalf of four Kansas plaintiffs, who applied to represent a class of people in Johnson County and across the state. The suit argued the state of Kansas, Attorney General Kris Kobach and six district court judges in Johnson County were complicit in constitutional violations by linking probation for some people to an ability to pay restitution, even when those defendants were compliant with all other court requirements.
Monica Bennett, ACLU of Kansas legal director, said protection from arbitrary and unequal treatment under the law was a fundamental right under the U.S. Constitution.
“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.
The lawsuit alleges Kansas Statute 21-6608(c)(7) was unconstitutional because it allowed an elevated punishment of poor defendants than it did defendants who committed identical offenses but had the ability to pay court-ordered restitution. The Kansas Legislature adopted probation period ceilings for Kansans, with the exception of individuals unable to pay restitution.
In a series of cases identified by attorneys for the plaintiffs, Kansas judges extended probationary terms for Jeffrey Englund, Alicia McKnight, Debra Nicole Rice and Alanna Carter for years longer than the period prescribed in criminal statute.
McKnight has been on probation in Johnson County since 2016, while Carter and Rice have remained on probation since 2018. It wasn’t clear whether Englund was still on probation.
When probation was extended due to failure to pay restitution, the lawsuit said, all terms of probation were extended. That included provisions allowing searches of a person without a warrant. People on probation in Kansas also must report their movement in or out of the state, cannot dine or visit places serving alcohol and cannot participate in the democratic process by voting.
“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,” Bennett said. “Our clients can jump through all of the hoops, stay out of trouble, be good employees and contribute to their communities for years, but the state and Johnson County judges have deemed that compliance irrelevant. Instead, their wealth or lack thereof determines their freedom.”
Micah Kubic, executive director of the ACLU of Kansas, said indefinite probation for low-income Kansans, who otherwise would be eligible to vote, served as a poll tax. Historically, a poll tax was used to disenfranchise Black people and poor white people. The practice was banned in federal elections in 1964 with the 24th Amendment to the Constitution. The U.S. Supreme Court ended poll taxes in all elections in 1966.
“Democracy is inherently about whose voices we believe are worthy of including and who gets a seat at the table,” Kubic said. “This probation scheme condemns people to lose their seats and their voices simply because of the money in their pockets. That is antithetical to our Constitution and to our values as a free country.”
In addition to the state attorney general, the lawsuit named as defendants current or former Johnson County District Court Judges James Droege, Michael Joyce, Neil Foth, Brenda Cameron, Christina Dunn Gyllenborg and Sara Welch. The petition identified as defendants the Kansas Office of Judicial Administration and a debt collection company, Butler and Associates.
The plaintiffs asserted that when Kansas judges extended their probation solely for the purpose of collecting restitution — a debt owed to private victims — the court took on the role of a de facto debt collector instead of an overseer of justice.
The lawsuit also claimed judges required probationers to remit restitution payments to a debt collection agency, which added administrative fees and interest that must be paid before a person was discharged from probation. This discretionary imposition of third-party collection deprived probationers of a reliable means to understand the total amount necessary to get off court supervision, the lawsuit said.
The ACLU of Kansas alleged the state violated due process, right to travel, equal protection and right to privacy provisions of the U.S. Constitution. In addition, the lawsuit raised 13th Amendment claims regarding slavery. In terms of the Kansas Constitution, plaintiffs claimed the probationary practice violated rights of individuals in terms of voting, cruel and unusual punishment and of unreasonable searches and seizures.