Overview

In 2019, Kansas Department of Corrections (KDOC) prisons were operating over 100 percent capacity, and the prison population was projected to increase 14 percent by 2029 at an estimated cost to the state of $209 million.¹ Through a series of public health decisions, the population in KDOC facilities fell to 82 percent capacity by the end of July 2020 and kept more people on community supervision or other­wise held in the community, but this was only a short-term fix. Communities were not equipped to handle the increase of people on supervision or focus on recidivism reduction. As a result, the state found itself in a precarious position.

Two-thirds of prison admissions in Kansas in 2019 were due to supervision violations²—largely technical violations, such as failed drug tests or missed appointments.³ Further, as of September 2020, KDOC was projecting that future prison population growth would be primarily driven by drug and nonvi­olent offenses and supervision violations. Additionally, due to staffing shortages and other capacity issues, KDOC has a limited ability to provide programming and treatment for people in prison, which hinders rehabilitation efforts and can cause additional challenges upon release.

To address these issues, the Kansas legislature estab­lished the Kansas Criminal Justice Reform Commission (Commission) in 2019. In January 2020, Kansas leaders⁴ took additional action by requesting support from the U.S. Department of Justice’s Office of Justice Programs, Bureau of Justice Assistance (BJA) and The Pew Charitable Trusts (Pew) to utilize the Justice Reinvestment Initiative (JRI) to address system challenges. BJA and Pew approved Kansas state leaders’ request and asked The Council of State Governments (CSG) Justice Center to partner with state leaders to collect and analyze state data and assist in developing appropriate policy recommendations that prioritize corrections spending on effective recidivism-reduction strategies.

Analysis conducted throughout the project resulted in numerous policy and practice recommendations to improve community supervision, victim services, behavioral health supports, employment opportunities, and housing for people in the criminal justice system. These recommendations were advanced to the Commission, and some were introduced to the legislature during the 2021 session. Some of these bills, in addition to new ones, were also considered in the 2022 session. Recommendations related to improving supervision by focusing resources where they can be most effective, expanding prosecutor diversions, and extending the existence of the Commission culminated in legislation that was signed into law in May 2021. Recommendations focused on improv­ing specialty court programs, allowing people to petition to be removed from a drug offenses registry, and ensuring that people on supervision are supervised by only one entity were signed into law in April 2022.

The Kansas Criminal Justice Reform Commission

The 22-member Commission included state leaders repre­senting all three branches of Kansas government as well as criminal justice system stakeholders from local governments, nonprofit organizations, and more. The commission met three times between September and December 2020 to review analyses and discuss system challenges and policies.

Commission Members

Chair

Marc Bennett
Sedgwick County District Attorney

Vice Chair

Stephen Owens
State Representative

Members

Gail Finney
State Representative

David Haley
State Senator

Rick Wilborn
State Senator

Nonlegislative Members

Todd Ackerman
Marysville Chief of Police

Jennifer Baysinger
Vice President, Political Affairs, Kansas Chamber of Commerce

Glenn Braun
Chief Judge, 23rd Judicial District

Bill Carr
Sheriff, Ford County

Marty Clark
District Magistrate, Russell County

John Francis
Professor, Washburn University School of Law

Chad Harmon
Clinical Care Manager, Substance Abuse Center of Kansas

Spence Koehn
Court Services Officer Specialist, Kansas Supreme Court’s Office of Judicial Administration

Tabitha Owen
Smith County Attorney

Sylvia Penner
Partner, Penner Lowe Law Group

Bill Persinger
Chief Executive Officer, Valeo
Behavioral Health Care

Jean Phillips
Professor of Law, University of Kansas, School of Law

Adrion Roberson
Teacher, Kansas Leadership Center

Shelly Williams
Community Corrections Director

Nonvoting Members

Derek Schmidt
Attorney General

Scott Schultz
Executive Director, Kansas Sentencing Commission

Jeff Zmuda
Secretary, Department of Corrections

Data Collection

Case-level data were provided to the CSG Justice Center by KDOC and the Kansas Sentencing Commission. In total, CSG Justice Center staff analyzed more than 3 million individual data records spanning 10 years, includ­ing supervision and prison populations and admissions, risk assessments, parole board decision-making, and court case sentencing activity. This was the most compre­hensive analysis completed since Kansas’s JRI process in 2012 and was critical to the CSG Justice Center’s ability to deliver comprehensive, systemic analysis of adult criminal justice processes to the Commission.

Key Challenges

Kansas’s criminal justice system is struggling to meet the needs of people who have substance use disorders. Drug offenses account for a signif­icant portion of prison admissions and community supervision violations. Additionally, once people leave prison or jail, limited education, housing, or food assistance often makes it difficult for them to succeed in the community.

Through Commission discussions, comprehensive stake­holder engagement, legal review, and analysis of Kansas data, the following key challenges and related findings were identified:

1. Increases in sentences to prison for drug offenses

More Kansans are being incarcerated for drug offenses, which drives up costs without improving outcomes. There was a 33 percent increase in sentences to prison for drug offenses from 2010 to 2019.⁵ In the same period, the number of women in prison for drug offenses doubled.⁶ It cost an estimated $41 million to incarcerate people for drug offenses in 2019 alone,⁷ and prison costs almost 10 times more than supervision by community correc­tions offices.⁸ However, research indicates that a prison sentence does not lead to lower rates of recidivism than probation.⁹

2. Use of prison to sanction people who violate supervision conditions

People who violate conditions of supervision make up a significant portion of people in prison. In 2019, one-third of the prison population and two-thirds of prison admis­sions in Kansas were due to supervision violations or sanctions,¹⁰ the majority of which were condition viola­tions. Of the people revoked from community corrections for condition violations, the most common violations, including the one they were revoked for, were for failures to report, abstain from drugs/alcohol, pay costs, and attend treatment.¹¹ Using prison to sanction Kansans who violate conditions of their supervision is expensive. It cost $43 million to incarcerate 1,630 people who violated supervi­sion conditions in 2019.¹²

3. Barriers to work and limited reentry supports

People in the justice system in Kansas have struggled to find employment due to lack of training and other barriers. Nearly half of people on parole in Kansas in 2019 were unemployed,¹³ and the vast majority of people returning to the community from prison are in need of education or employment services.¹⁴ Additionally, more than 400 legal and regulatory barriers in the state prevent people convicted of crimes from accessing employment, busi­ness, and occupational licensing opportunities.¹⁵

Summary of Proposed Policy Recommendations

Over 60 administrative and legislative policy recom­mendations were proposed to the Kansas Criminal Justice Reform Commission. Of the 14 legislative recommendations introduced, 7 were passed into law, 2 of which were combined into one bill:

1. Build on the SB 123 infrastructure to encourage more prosecutor diversions to certified treatment and provide treatment to more people before they commit more crimes. (SB 123 provides substance use disorder treat­ment for certain people convicted of drug possession.)
2. Require the supreme court to adopt rules for establishing and operating specialty courts and support jurisdictions interested in expanding specialty courts.
3. Formalize workgroups to standardize conditions of super­vision, encourage behavior change through research-based incentives, and explore other topic areas as needed.
4. Enact legislation building on the work of the concurrent supervision workgroup to ensure that people on super­vision are supervised by only one entity.
5. Formalize KDOC’s approach to parole supervision viola­tions, including implementing effective responses to behavior. Also, establish a clear definition of absconder status. (These were initially introduced as two separate bills but were combined during session.)
6. Create a mechanism for people to be removed from the public online drug registry, eliminating a current barrier that impedes their ability to secure necessities like housing and employment.

See the Appendix for a full list of proposed policy and practice recommendations.

Select Policy Recommendation Details

The policy recommendations that were passed by the legislature and signed into law were designed to achieve three goals:

1. Divert more people charged with drug offenses to treat­ment and supervision. (Policy Recommendations 1 and 2)
2. Improve supervision by focusing resources where they can be most effective. (Policy Recommendations 3, 4, and 5)
3. Reduce barriers to work and securing housing. (Policy Recommendation 6)

Policy Recommendations 1 and 2

Build on the SB 123 infrastructure to encourage more prosecutor diversions to certified treatment and provide treatment to more people before they commit more crimes. (HB 2026)

Require the Supreme Court to adopt rules for estab­lishing and operating specialty courts and support jurisdictions interested in expanding specialty courts. (HB 2361)

Background

• Arrests and admissions to prison for drug offenses have increased in recent years. From 2010 to 2018, total reported arrests decreased 40 percent, while arrests for drug offenses increased 19 percent.¹⁶ In the same period, admissions to prison for drug offenses rose 62 percent.¹⁷
• Felony drug cases and sentences have also increased. From 2010 to 2019, the number of felony drug cases filed in district court increased 125 percent, and the proportion of felony drug cases filed in district court, out of all felony filings, increased from 13 to 27 percent.¹⁸ During this time, community corrections starts for felony drug offenses increased 52 percent,¹⁹ and the number of women starting community corrections for felony drug offenses increased 91 percent.²⁰ Overall, felony sentences for drug offenses increased 51 percent,²¹ and sentences to prison for drug offenses went up 33 percent.²² The average prison sentence length for drug offenses increased from 35 to 42 months.²³

Policy Recommendation 1 Details

SB 123 was developed during the 2003 legislative session to provide substance use disorder treatment for people convicted of drug possession who are nonviolent and have no prior convictions for drug trafficking, drug manufacturing, or drug possession with intent to sell. HB 2026 (enacted as K.S.A. 21-6825) expands eligibility for this existing drug treatment. People accepted into a diversion program in lieu of undergoing further criminal proceedings for a felony violation are now eligible to participate in a certified substance use disorder treatment program. SB 123 previously limited partic­ipation in these programs to people convicted of a felony.

Instead of requiring a felony conviction to access treatment, HB 2026 allows a county or district attorney to enter into a memorandum of understanding (MOU) with the chief judge of a judicial district or a community corrections office to imple­ment a diversion program. The county or district attorney shall retain authority over diversion placement and termi­nation, while the judicial district or community corrections office identified in the MOU shall oversee the supervision of a person placed in the diversion program.

Giving prosecutors discretion to develop and implement diver­sion opportunities with treatment in lieu of a felony convic­tion can provide the necessary treatment and accountability for people in need without the stigma and collateral conse­quences of a conviction. The Kansas Sentencing Commission projected that enacting legislation to encourage more pros­ecutor diversions could lead to an increase of 25 to 75 SB 123 drug treatment cases in FY2022. Due to the potential increase, the Commission estimated that an investment of $88,368 to $265,104 would be required to support the addi­tional clients needing treatment.²⁴

Policy Recommendation 2 Details

Currently, many judicial districts are interested in operating specialty courts to address behaviors and needs of individ­uals to avoid the use of unnecessary incarceration. These courts are typically labor intensive and require participation from social workers, mental health professionals, prosecu­tors, defense attorneys, and judges who work as a team to help a defendant.

According to judges in Kansas, the individualized and focused attention that a defendant receives from these courts provides a clear benefit. But jurisdictions struggle to form and operate these courts because they have limited staff time and resources to do so. Clients often need a range of resources, such as transportation, job training, substance use treatment, and access to technology, that these courts provide to help lay the foundation for a successful and stable life.

HB 2361 (enacted as Session Laws Chapter 79) requires the Kansas Supreme Court to adopt rules for establishing and operating specialty court programs within the state,²⁵ creates a funding advisory committee for specialty courts, allows for expungement after program completion, and allows the Office of Judicial Administration (OJA) to provide techni­cal assistance to jurisdictions interested in establishing a specialty court. This bill will help give judges additional tools to respond to issues like substance use addiction, so that more courts statewide can help people on their path to recov­ery with options other than incarceration.

Policy Recommendations 3 and 4

Formalize workgroups to standardize conditions of supervision, eliminate concurrent supervision, encour­age behavior change through research-based incen­tives, and explore other topics as needed. (HB 2077)

Enact legislation building on the work of the concurrent supervision workgroup to ensure that people on super­vision are supervised by only one entity. (HB 2654)

Background

• In Kansas, community supervision is provided by three enti­ties—Court Services, Kansas Community Corrections, and KDOC. A process exists to determine which entity provides supervision to a person on probation or parole. However, a variety of silos exist within each supervision entity that limit the effectiveness and efficiency of the overall community supervision system. There are variations in the sanctions and incentives that are utilized, early discharge requests, programming availability, and trainings provided to staff.
• Only KDOC has statewide conditions of supervision, while Court Services’ and Kansas Community Corrections’ conditions of supervision vary by county or judicial district. The conditions of supervision differ by jurisdiction in the numbers and types of conditions, the length and complex­ity of conditions listed, in document formatting, and the language used and ease of readability. These variations create challenges when cases are transferred between jurisdictions and cause confusion for people on supervision.
• Approximately 5 percent of the supervision popula­tion—1,200 people—are on concurrent supervision between KDOC and community corrections agencies. This number could be as high as 15 percent, or 3,600 people, when factoring in people also concurrently supervised by Court Services or local municipal probation offices.26 As a result, people on concurrent supervision are supervised by multiple officers with no formalized coordination or infor­mation sharing.

Policy Recommendation 3 Details

Throughout 2020, the Commission explored numerous policies to address challenges, improve proportionality of sentences, create efficiencies, and promote public safety through recidivism reduction. Some policy recommenda­tions require additional discussions and analysis for the development of legislation that minimizes unintended conse­quences. As a result, the continuation of the Commission was necessary to build upon current knowledge and expertise to advance changes to Kansas’s criminal justice system in a thoughtful and strategic way. Ongoing work with the CSG Justice Center is centered on effective supervision practices, including standardizing conditions of supervision, consoli­dating concurrent supervision, encouraging behavior change through research-based incentives, and exploring other topic areas as needed.

HB 2077 (enacted as K.S.A. 21-6902) extended the Commission until December 2021 to do the following:

• Review felony supervision practices by Court Services, Kansas Community Corrections, and Parole Services.
• Develop legislative recommendations and administrative policies that establish research-based standards and prac­tices for all community supervision programs that
  • Create standardized terms and conditions of supervision;
  • Provide for a means to eliminate instances of concur­rent supervision;
  • Provide incentives for compliant behavior and the ability to earn early discharge from supervision; and
  • Create standardized effective responses to behavior through a system of incentives and graduated sanctions.

• Further review sentences for proportionality.
• Analyze diversion programs to develop legislation that requires diversion options before someone is officially charged (prefiling) and after they are charged (postfiling) in all counties.

Policy Recommendation 4 Details

The concurrent supervision workgroup developed a legislative framework to ensure that only one agency supervises each individual and provides a way to make transfers between agencies consistent and efficient.

Under current law, at sentencing, the district court may transfer supervision to a different district if the receiving Court Services officer agrees to this. But this transfer is not required, and the district court may choose to retain supervision.

HB 2654—enacted as K.S.A. 21-6902(5)(D)—provides optional guidelines for the court to consider when deciding whether to make a transfer to help establish greater consis­tency in how transfer decisions are made. The new law also requires the Office of Judicial Administration and KDOC to agree to an MOU that eliminates duplicative supervision and details how the agencies will handle conditions, violations, revocations, termination of supervision, and information sharing.

Policy Recommendation 5

Formalize KDOC’s approach to parole supervision viola­tions, including implementing effective responses to behavior. Also, establish a clear definition of absconder status. (HB 2121)

Background

• In 2019, one-third of the year-end prison population and two-thirds of prison admissions were due to supervision sanctions and revocations.²⁷
• In the same year, 992 people were revoked from community corrections for condition violations only. The most common violations committed by this group of people, including the violation they were revoked for, were failure to report/ absconding (79 percent of people revoked had at least one violation of this type); missed or positive urinalysis/ alcohol test (76 percent); failure to pay costs (69 percent); and failure to attend treatment (43 percent). Just over half (525, or 53 percent) of these people did not have even one hearing prior to the hearing that resulted in a revocation.²⁸
• In March 2020, there were 466 people in prison serving time for condition violations on parole at a cost of $14 million per year.²⁹
• Kansas lacked a formalized definition for absconding from supervision, which created an inconsistent threshold for sanctions between each supervision entity.

Policy Recommendation 5 Details

HB 2121 (which amended K.S.A. 75-5216) requires KDOC to establish standards for parole behavior responses that follow evidence-based practices. This includes the use of incentives for compliant behavior and appropriate interven­tions for violations. Additionally, HB 2121 created a uniform definition for absconding from supervision, which ensures that each supervision entity is utilizing the same criteria for an absconding violation.

Policy Recommendation 6

Create a mechanism for people to be removed from the public online drug registry, eliminating a current barrier that impedes their ability to secure necessities like housing and employment. (HB 2515)

Background

• The Kansas Offender Registration Act (KORA) requires people who have been convicted of violent offenses, sex offenses, and drug offenses to register. Kansas is one of a handful of states that requires people convicted of drug offenses to add their name to a public online registry.
• Currently the minimum length of registration for a person convicted of a qualifying drug offense is 15 years. Qualifying drug offenses are manufacturing, possession of precursors of a controlled substance, distribution, or possession with intent to distribute, regardless of the amount.
• KORA previously had a mechanism for people to apply for early removal from the registry, but in 2011, the legislature made sweeping changes to KORA, eliminating the removal process altogether.
• There are currently more than 5,964 people on the public drug offense registry, impacting their ability to secure housing and employment. More than 3,556 people have been registered for 5 years or more.³⁰
• Registrants report having a hard time securing housing and employment because of how easy it is for the public to search for and find people on the registry and make judg­ments about who they are based on their past mistakes.

Policy Recommendation 6 Details

• HB 2515, which passed as part of SB 366 and was enacted as Session Laws Chapter 83, allows people convicted of drug offenses to petition to be removed from the registry after 5 years if they have been rehabilitated. This would remove an unnecessary barrier that currently limits these people’s ability to secure housing and employment. It is projected that this bill will result in 43 prison beds saved by the end of FY2023 and 71 prison beds saved by the end of FY2032.³¹

Implementation

HB 2077 reappointed the Commission to continue working on changes to the criminal justice system in Kansas with support from CSG Justice Center staff until December 2021. Beginning in January 2022, CSG Justice Center staff contin­ued implementation efforts with relevant agencies.

For the work in 2021, the Commission created five subcom­mittees: three for supervision topics (conditions of supervi­sion, concurrent supervision, and research-based incentives), a sentencing and proportionality subcommittee, and a diver­sion subcommittee. Finally, although not required by HB 2077, the Commission continued a sixth subcommittee charged with discussing race and the criminal justice system. This subcommittee was tasked with identifying areas of concern as well as monitoring the work of the other five subcommit­tees on any issues involving race or disparity.

A large portion of CSG Justice Center technical assistance centered on working with the Commission and relevant agen­cies to develop and implement administrative policies to improve the system. The Commission meetings provided a helpful forum for consensus building between various stake­holders and addressing silos within the trifurcated supervi­sion system.

Ongoing CSG Justice Center technical assistance includes the following activities:

Standardized Conditions

• Guide the drafting of supervision conditions to eliminate conflicts between conditions and ensure readability.
• Guide the ongoing workgroup to standardize special condi­tions of supervision to complement the general conditions that were standardized by the 2021 Commission.
• Develop and conduct training and education for stakehold­ers on conditions of supervision.
• Leverage subaward funding to assist with ongoing training needs related to condition setting.

Dual Supervision

• Conduct focus groups with supervision leadership from Court Services and Kansas Community Corrections to elicit feedback on challenges experienced by supervision agen­cies and strengths of those agencies to resolve instances of dual supervision.
• Guide the ongoing workgroup on the development of the communication standards between KDOC (postrelease supervision), Community Corrections, and Court Services regarding dual supervision cases.
• Assist the ongoing workgroup with administrative policy updates based on statutory changes that formalize the transfer of supervision of dual supervision cases.
• Discuss the potential of subaward funding to assist with connecting KDOC and OJA data systems to make informa­tion sharing more efficient.

Research-Based Incentives

• Facilitate discussion with supervision system stakehold­ers regarding any difficulties and benefits of implementing various research-based incentives.
• Guide the ongoing workgroup on the creation of the inter­agency incentive and sanction matrix that will be used with the Carey Group 4:1 Behavior Management System by both KDOC and OJA.
• Develop training materials for stakeholders on the new incentives and sanctions matrix and the impact on super­vision decision-making for supervision staff, the judiciary, and county/district attorneys.
• Develop training and webinars for the judiciary on applica­tion of risk and need principles, condition setting, and the new behavior management matrix.