‘Outside the box’ criminal justice bill seeks release of some nonviolent Kansas drug offenders

Randy Bowman, a spokesman for the Kansas Department of Corrections, spoke to a bill Tuesday opening an avenue for release of those charged with drug crimes who have served 50% of their sentence.(Screen capture by Kansas Reflector)

TOPEKA — A bill recommended by the Kansas Sentencing Commission would offer an avenue for certain nonviolent drug offenders to seek release from prison, which supporters say is another needed step in the process of reducing prison overcrowding.

The measure would allow inmates who have successfully served 50% of a sentence for a severity level two-five drug crime to apply for possible discharge. The Kansas Prisoner Review Board would be required to look at each case and determine if they will be released to community corrections for the remainder of their sentence.

The board can only approve the application if the inmate does not represent a risk to public safety. The bill also specifies what criteria the review board must consider when reviewing an application.

The state’s prison population ballooned from 8,000 in January 2000 to a March 2020 pre-pandemic population of more than 10,000. While COVID-19 has forced that number back down into the 8,000 range, the Kansas Department of Corrections is still looking to create additional bed space.

“Modifications to Kansas sentencing laws for drug offenders is one option to manage the growth that has occurred in this state’s prison system in the last 20 years,” said Randy Bowman, a spokesman for KDOC. “While this growth represents all policy decisions of this and prior legislatures, for all types of crime, amending penalties imposed upon drug offenders as a means to reduce future populations seems to have common interest among multiple constituencies.”

Estimates by the Kansas Sentencing Commission indicate this proposal would free 59 adult prison beds in 2022. By the end of 2031, 209 fewer prison beds would be needed.

With prison populations decreasing amid the pandemic, opponents argued Tuesday, the additional decrease is not a pressing need. Proponents of the bill told the House Committee on Corrections and Juvenile Justice that additional space is needed in the overcrowded prison system, with many cells still housing three or four inmates.

Scott Schultz, executive director of the Kansas Sentencing Commission, called the effort one of the more “outside the box” approaches taken to address this issue. The measure would incentivize those who qualify to apply and seek release to community supervision, he said.

“This is a little twist in that these folks would be released to community corrections,” Schultz said. “In many of the places statewide, having community corrections resources available to these folks will probably be more substantial than if they were placed on parole.”

If the offender’s application is approved, the review board may establish conditions for release. The board’s decision would be final and not subject to review, although the court may revoke the decision if the offender is on probation after being released from custody.

Kendall Seal, director of advocacy for the American Civil Liberties Union of Kansas, said this was an important step toward addressing racial inequities within the Kansas criminal justice system. In Kansas, Black people represent 18.9% of drug arrests but just 5.6% of the state’s population.

Seal said there is room to improve oversight and transparency in the prisoner review board decision process. One change he suggested was that the board not be allowed to consider unpaid fines and fees in reviewing a case.

“Fines, fees and restitution are major barriers to people completing their sentences,” Seal said. “As it stands, this bill gives the PRB authority to determine ‘any other factors deemed relevant,’ which we believe is overly broad.”

Opposite of Seal’s belief the bill would be optimal with additional provisions, representatives of law enforcement questioned why such a bill is necessary if prison populations are decreasing. They noted severity levels two-four offenders are in possession of larger amounts of drugs often with an intent to distribute, not simple possession crimes.

Greg Smith, a former state senator who works on policy issues for the Johnson County Sheriff’s Department, said he sees drug cases every week that bring harm to others. Situations in which someone is harmed in the drug crime would be subject to consideration by the review board.

“We have had occasions where someone went to buy marijuana and instead decided to forcibly take the drug from their dealer. … We have had situations where the seller decided to rob the buyer,” Smith said. “These types of activity happen frequently in the Kansas City metro area. These are not victimless crimes.”