Musings on the Kansas Criminal Justice Reform Commission
by Jennifer Roth, Deputy Appellate Defender
During the 2019 legislative session, Rep. Russ Jennings proposed creation of the Kansas Criminal Justice Reform Commission (KCJRC). He reasoned that it had been 15 years since the 3Rs Committee (recodification, rehabilitation, and restoration), which was the last time any legislative committee had been tasked with taking a comprehensive look at the criminal justice system. The circumstances surrounding creation of the 3Rs Committee, and the legislative actions that happened in the 15 years in between, provide important context to the creation of the KCJRC.
The preamble of the bill that created the 3Rs Committee began by pointing out that between 1993 (the first year the sentencing guidelines act) and 2003, 50 new felonies had been enacted, 10 felony offenses increased severity levels, 14 misdemeanors became felonies, the 1-A and 2-A grid box sentences had increased 219%, the 1-I and 2-I boxes had increased 60%, “and countless new misdemeanors have been enacted and codified throughout the Kansas statutory code, increasing the margin for error in prosecutors appropriately identifying and charging for certain criminal acts[.]”
The preamble also addressed the explosion of the number of people in prison, the decrease in crime rates, the increase in “technical parole violators”, the rate of mental illness in prisons and jails, and the effect on children of having an incarcerated father. It concluded: “the state must learn to spend money more wisely, in order to bring crime down more effectively than to simply imprison, and thereby save moneys to spend on other priorities.” When the 3Rs Committee was established in 2004, there were over 9,100 people in prison. The first line of the Committee’s 2005 Report to the Legislature is “Hey, Kansas! Our prison inmates are going home. In record numbers.”
It then described some of the barriers and challenges people have without access to treatment, job skills, and housing.
Having been on the KACDL legislative committee since 2005, I can attest that some good things happened in the years after the 2005 Committee Report. But there were no real changes made to the numbers in the grid boxes; in fact, some grid offenses became offgrid sentences carrying life in prison. And while criminal code recodification eventually happened in 2009 (drug crimes) and 2011 (chapter 21 crimes), this process did not result in sentencing changes. The Recodification Commission and the Kansas Sentencing Commission made sentence proportionality recommendations to the Legislature in January 2009, but none that would have decreased sentence lengths or severity levels have become law.
Meanwhile, the concerns from the 2004 preamble continued to grow: a KC Star article from January 2012 quoted the then-Secretary of Corrections as saying that, since 2005, the Legislature had made 99 sentencing law changes, resulting in overcrowded prisons. But things did not improve in 2012, which saw the passage of a five-level drug grid that has resulted in sentences more draconian than many federal ones. Right now, there are 48 felony special sentencing rules.
Against this background, the KCJRC was created. The legislature gave the KCJRC nine charges, and I was cautiously hopeful that this new Commission would really take on the first two items listed in its statutory charge. These were to “analyze the sentencing guidelines grids for drug and nondrug crimes and make recommendations for legislation that would ensure sentences are appropriate” and “review the sentences imposed for criminal conduct to determine whether the sentences are proportionate to other sentences imposed for criminal offenses.” I believed taking these charges seriously would finally demonstrate progress toward proportionality.
Between August 2019 and November 2021, the Commission met 20 times as a whole. Originally consisting of 22 people (until a public defender member was added in July 2021 — and I served in that spot), the Commission’s initial charge was vast — to study and make recommendations on sentences; expanding diversion and implementation of statewide standards; probation supervision levels and programming for felony convictions; use of specialty courts; evidence-based programming for people in the community and in prison; specialty KDOC facilities such as geriatric, healthcare, and substance abuse prisons; and improving data collection to measure and monitor the efficacy of the criminal justice system. K.S.A. 2019 Supp. 21-6902. Marc Bennett, the Sedgwick County DA, chaired the KCJRC, and the vice-chair was Rep. Stephen Owens, who is the 2022 chair of House Corrections.
To tackle the vast array of topics, the Commission formed subcommittees: data management; diversion/specialty courts; specialty prisons/supervision; mental health and drug treatment; proportionality/guidelines; race and the criminal justice system; and reentry. In 2021, additional subcommittees formed to make recommendations about supervision: standardizing probation conditions, early discharge from probation, consolidating supervision, and etc. Those subcommittees met separately during the life of the Commission. The KCJRC also worked with the Council of State Governments , which provided guidance and expertise (e.g., what other states are doing, what the research shows, and interviewing criminal justice system participants across the state).
In my short time on the KCJRC, I was encouraged by and appreciative of the amount of time, thought, and energy that people dedicated to this endeavor. Folks were up on the research and best practices, and had been trying new things in their jurisdictions. Subcommittees pulled in additional people as ad hoc members and guest speakers in order to get more information. It was heartening to hear prosecutors and law enforcement agreeing with recommendations that could help the people we represent.
The KCJRC presented three reports to the Legislature, and in its most recent one, there are at least 23 recommendations across all the above-mentioned subject areas. The KCJRC made no overall recommendations about sentence lengths, severity levels of offenses, or how criminal history is calculated. The extent of the recommendations for “appropriate and proportionate” sentences were: merging the drug and nondrug grids; making drug possession akin to a current severity level 8 nondrug felony; increasing felony loss thresholds in certain property crimes; decreasing the severity level for registration noncompliance; and increasing presumptive probation boxes on both grids.
There is no denying that the current state of affairs has impacted, and will continue to impact, how far the KCJRC’s recommendations will get in the Legislature, at least at this point. The pandemic began eight months into the KCJRC’s work, which affected what the Legislature could consider and accomplish in 2020 and 2021, and there is reason to believe 2022 will be similar. Furthermore, around the time the bill establishing the KCJRC became law, both the men’s and women’s prisons were overcapacity (there were 10,081 people in Kansas prisons). When the KCJRC resumed its work in June 2021, there were 8,550 people in prison (76-80% of capacity). Policy makers may not feel the same urgency now as they did in 2019.
Fortunately, several recommendations from the KCJRC (or ones coming from other organizations but supported by the KCJRC) have already become law: expanding SB 123 to people on diversion; modifying criminal penalties to tampering with monitoring equipment; expanding proof of identity documents to include a certificate from a supervision officer; requiring DOC to develop incentive and intervention responses for people on postrelease/parole; and amending laws relating to driver’s license suspensions and fees.
The original concept of this article was “KCJRC recommendations and what has passed so far,” and that’s all I thought it would be. But I cannot stop thinking about that 2004 preamble – how the Legislature back then so clearly and honestly owned up to the problems it had created; how it wanted to do better and not “simply imprison” people; and how it realized the impacts the system had on all people, including families. It is beyond time for our current-day Legislature to seriously address the crises that have been growing for decades.
For more information about the KCJRC, you can read the 2020 report to the Legislature here, the 2021 report here, and the 2022 report here. An overview from CSG to House Corrections in February 2020 is available here. Stay tuned for updates about what KCJRC recommendations the 2022 Legislature adopts.