Kasper Schirer appears before a Kansas Court of Appeals panel to argue against a state law that allows his client’s probation to be extended indefinitely. (Kansas Reflector screen capture from court video)
TOPEKA — A defense attorney asked the Kansas Court of Appeals on Tuesday to reject the basis for subjecting a woman to a lifetime of probation because she can’t afford to pay restitution for her crimes.
The attorney’s argument, if successful, could have a far-reaching effect on a two-tiered system of justice in Kansas, in which those who can afford to pay court fines are held to a different standard than those who can’t.
His client, Edwanda Garrett, pleaded guilty in 2009 in Johnson County District Court to making false writings and in 2017 to writing bad checks. Her restitution involves deducting $50 from her paycheck each month for the next 40 years.
The case revolves around a patchwork set of state laws that limit probation to five years but allow probation to be extended indefinitely for failure to pay court costs, fines or restitution — and take away the right to vote while on probation.
Garrett has been on probation for 13 years, said defense attorney Kasper Schirer.
“There is no rational basis for believing that endless probation is going to be an effective tool to collect restitution payments,” Schirer said. “To be maybe more crass than I should be, you can’t squeeze blood from stone. No matter how much coercion you put on probationers who are indigent, you cannot make them part with money that they do not have.”
The three Kansas Court of Appeals judges assigned to hear the case challenged the prosecutor to explain the state’s interest in punishing someone for failing to make payments she can’t afford.
Shannon Grammel, deputy solicitor general for the Attorney General’s Office, said restitution and the threat of probation serve as a deterrent to crime.
“I think what’s important to remember, too, is Miss Garrett isn’t on probation because she can’t pay,” Grammel said. “She’s not on probation because she doesn’t have money. Her probation is part of the sentence of her crime. That’s also why she’s paying restitution.”
Judge Jacy Hurst admonished Grammel for being “disingenuous.”
“Does this statute actually result in people paying off more of their restitution?” Hurst asked.
Grammel pointed out that Garrett had already paid back $2,500 and continues to make payments. Hurst pointed out the cost of assigning a probation officer to the case for the next 40 years will cost more than $2,500.
Judge Gordon Atcheson also questioned whether extended probation really serves as a deterrent to crime.
“What’s the deterrence to Miss Garrett at this point — that she needs to keep paying for 40 years so she can vote in 2060 if she’s still alive?” Atcheson said.
Grammel said there is “an important distinction” between the fundamental right to vote and the right of felons to vote.
Schirer challenged state law on the basis of constitutional protections for due process, equal protection and the right to be free from debt-based imprisonment. The American Civil Liberties Union of Kansas, which has lobbied the Legislature for criminal justice reform along similar lines, filed a brief in support of Garrett.
Sharon Brett, legal director for the ACLU of Kansas, said the case could have widespread implications for an unknown number of people on probation throughout the state who are living below the poverty level.
People who are poor are subjected to longer and harsher punishments than people with financial means, Brett said.
“When we’re talking about indefinite probation, we’re not talking about some hands-off, docile system of oversight,” Brett said. “Probation is a system of surveillance and supervision. And it comes with a myriad of conditions and rules that you have to comply with. And if you slip up on any one of those conditions or rules, you could face incarceration.
“So what the state is talking about here is keeping people under that oppressive system of surveillance and supervision indefinitely, where any little issue could send them back to jail, only because they’re too poor to buy their freedom. That’s what we’re talking about.”
Brett said the Legislature should amend state law to require a judge to determine whether someone is willfully not making a payment or unable to pay. Lawmakers also should look at why they are disenfranchising people because they lack economic means, Brett said.
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