‘The blood of the stone’: Kansas Court of Appeals examines endless probation for the poor

TOPEKA — A defense attorney on Tuesday asked the Kansas Court of Appeals to throw out the basis for probation of a woman for life because she cannot afford restitution for her crimes.

The lawyer’s argument, if successful, could have a dramatic effect on a two-tier justice system in Kansas, in which those who can afford to pay fines are held to a different standard than those who cannot. can’t.

His client, Edwanda Garrett, pleaded guilty in 2009 in Johnson County District Court to forgery and in 2017 to writing bad checks. His restitution consists of deducting $50 from his salary each month for the next 40 years.

The case revolves around a patchwork of state laws that limit probation to five years but allow probation to be extended indefinitely for non-payment of court costs, fines or restitution — and remove the right to vote during the probationary period.

Garrett has been on probation for 13 years, defense attorney Kasper Schirer said.

“There is no rational basis for believing that endless probation will be an effective tool for collecting restitution payments,” Schirer said. “To be perhaps more rude than I should be, you cannot extract blood from stone. No matter how much coercion you exert on probationers who are needy, you cannot force them to part with money they don’t 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 in the attorney general’s office, said restitution and the threat of probation had a deterrent effect on crime.

“I think it’s also important to remember that Miss Garrett is not on probation because she can’t pay,” Grammel said. “She’s not on probation because she has no money. His probation is part of the sentence for his crime. This is also why she pays restitution.

Judge Jacy Hurst reprimanded Grammel for being “dishonest”.

“Does this law actually result in people paying more for their restitution?” Hurst asked.

Grammel pointed out that Garrett has already repaid $2,500 and continues to make payments. Hurst pointed out that 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 had a deterrent effect on crime.

“What’s the deterrent for Miss Garrett at this point – that she has to keep paying for 40 years to be able to vote in 2060 if she’s still alive?” Atcheson said.

Grammel said there is “an important distinction” between the basic right to vote and the right to vote for criminals.

Schirer challenged state law based on constitutional protections for due process, equal protection, and the right not to be imprisoned for debt. The American Civil Liberties Union of Kansas, which lobbied the legislature for similar criminal justice reform, filed a brief supporting Garrett.

Sharon Brett, legal director for the ACLU of Kansas, said the case could have wide-ranging implications for an unknown number of probationers statewide who live below the poverty line.

Poor people face longer and harsher sentences than people with financial means, Brett said.

“When we talk about indefinite probation, we’re not talking about a docile, hands-off supervision system,” Brett said. “Probation is a monitoring and control system. And it comes with a myriad of conditions and rules that you must follow. And if you break any of these conditions or rules, you risk incarceration.

“So what the state is talking about here is keeping people under this oppressive system of surveillance and supervision indefinitely, where the slightest little problem could send them back to jail, just because they’re too poor to buy their freedom. That’s what we’re talking about. »

Brett said the legislature should change state law to require a judge to determine if someone is voluntarily non-paying or unable to pay. Lawmakers should also examine why they are disenfranchising people because they lack economic means, Brett said.