Two years after criminal justice reform effort began, key proposals are still untouched

Andrew Bahl
Topeka Capital-Journal
Mari Flowers, right, with her daughters, Kristina Derstein, left, and Kendra Flowers. Mari Flowers has advocated for more leniency on drug crimes after her daughter, Jordan, was sent to jail in October.

Jordan Flowers was supposed to get treatment for her addiction to methamphetamine and cocaine. Instead, she got six years in prison.

It began in 2017 after she started working at a sports bar in Garden City, prompting her to get "involved with people that she shouldn't have been," according to her mother, Mari Flowers. Multiple drug charges in Finney and Ford counties followed suit over the course of the year. 

While Flowers did relapse after a couple of stints in rehabilitation programs in Wichita and Kansas City, Kan., things had gotten easier last spring.  

But the COVID-19 pandemic created confusion — Flowers got the wrong information from court officials about reporting for a scheduled hearing, prompting a warrant to be put out for her arrest. 

Flowers had been clean for over a month at the time and was holding down a job. She also had initial plans to move to a treatment program in Topeka.

But the probation violation prompted her to be sent to jail, rather than the rehabilitation program, which her probation officers argued was not properly accredited — something Flowers and her public defender dispute.

To add insult to injury, the judge declined to have her serve her sentences from the two cases concurrently, meaning she is looking at a six-year sentence, despite not offending for two years. Her mother said she "can't believe where she is at."

"She was finally getting herself straightened out," Mari Flowers said. "She decided 'OK, I'm done with this life. I don't want to be in trouble. I want to take care of my kids.' So she was back living in their house and taking care of her children and then goes to court and gets sent to prison."

Ensuring that there are fewer cases like Flowers' in Kansas prisons has become a priority for policymakers.

Research from the Council of State Governments shows that prison sentences for drug offenses have increased by 33% since 2010. Many more inmates leave prison in need of substance abuse treatment, signaling they don't get adequate counseling and rehabilitation during their sentence.

Enter the Kansas Criminal Justice Reform Commission, a panel of legislators, law enforcement and corrections experts.

The panel, which was rolled out in 2019, has been charged with formulating recommendations, not just on drug sentencing but a wide swath of policy items that could reduce the state's prison population and improve outcomes for those who come into contact with the criminal justice system.

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But two years after its formation, several key recommendations from the body are still waiting to be passed, despite the bipartisan coalition that appeared to be forming — including one of the state's most prominent conservative organizations.

With COVID-19 ravaging the state's prisons and jails, the need to reduce the prison population is even more acute, reformers argue.

But tough-on-crime mindsets die hard, meaning that folks like the Flowers family are left waiting, as they hope for reforms that could help their loved ones, and others like them.

"Sometimes, those who are in positions of making decisions about how bills progress consider more heavily the potential political implications, as opposed to the policy implications," said Rep. Russ Jennings, R-Lakin, who chairs the House Corrections and Juvenile Justice Committee.

Kansas has platform for drug treatment — but will legislators embrace it?

Kansas has a platform on which to build to help those convicted of drug crimes, experts say. 

In 2003, well before criminal justice reform became a topic of mainstream conversation, legislators approved an option in Senate Bill 123 to fund a person's drug treatment for up to 18 months of their probation sentence, provided certain conditions are met.

"We've got to get to the root cause of what is driving the crime," said Rep. Stephen Owens, R-Hesston, who is vice chairman of the KCJRC.

But not all individuals are eligible for the program. Flowers, for instance, would not currently be allowed to participate because she had already completed a treatment program.

But even more important, reformers argue, is that her crimes were deemed too severe for her to ever have had access to state-funded drug treatment in the first place.

Research in 2015 from the University of Kansas School of Law argued the program should be expanded to include more drug offenses, as well as those whose primary offense is not drug-related. The report noted that addiction can push individuals to commit a wide range of crimes, such a burglary.  

Legislation being considered would begin changing that, allowing those arrested for a wider range of drug crimes to access the treatment program.

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It is a cornerstone of the recommendations advanced by the KCJRC, as it also makes changes to the so-called sentencing grid, a decades-old formula used to determine how long a person can be sentenced to probation or prison.

The bill would increase the number of crimes for which probation is a sentencing recommendation, as well as allowing for probation to be the default option more frequently.

While it passed out of the House Corrections Committee, it has not yet been considered by the full Kansas House, meaning it is likely dead until next year. 

That is despite support from the Kansas chapter of Americans for Prosperity, the prominent national conservative group backed by the Koch family, which has argued that reducing prison sentences saves money and fits in with fiscal conservatism.

This didn't stop pushback from law enforcement, who believed that drug offenses can often be a gateway to other offenses. Greg Smith, a special deputy in Johnson County, took umbrage with the notion that drug crimes are "victimless."

"Entering a treatment program does not guarantee success," Smith told legislators in February. "The person in the program must want treatment for it to succeed."

Drug sentences have increased in Kansas by 33% in the last decade, prompting calls for more to be done to help individuals get into drug treatment, rather than prison.

Other items to address substance abuse move forward

It is not the only effort being considered to help boost substance abuse options.

There have been various proposals, bolstered by recommendations from the criminal justice reform commission, to expand substance abuse treatment options within state correctional facilities.

That includes a proposal in Gov. Laura Kelly's budget to spend $13.3 million to renovate two state prisons, including the addition of a 200-bed treatment facility at Lansing Correctional Facility to treat addiction.

But reformers also want to concentrate on getting individuals into treatment on the outside.

That's the genesis for a separate piece of legislation, which would allow drug treatment as an option for pre-trial diversion. It would mean individuals could get treatment as part of a deal to avoid prosecution.

This piece of legislation has had greater success — it passed the House last month and moved through a Senate committee earlier this week.

Patrick Armstrong, a project manager for the Council of State Government who has worked on criminal justice issues in Kansas, said that this can help avoid having to pay for individuals to get treatment while incarcerated, which is a more desirable outcome.   

"From our perspective, it is more effective when you're not also paying for the expensive prison bed and you can do it in the community for a lower price," Armstrong said.

Skepticism remains — despite COVID-19

Still, the boldest reform proposals still engender some skepticism from many legislators.

Many thought COVID-19 would make a sweeping case for taking more aggressive action in curbing the state's prison population. 

That has weighed heavily on individuals like Jordan Flowers, who was moved to Topeka Correctional Facility in October. After weeks of quarantining in a tent-like structure outside the prison, she eventually moved inside the facility, but social distancing remains impossible amid a major spike of cases within the state's only women's prison.

But in some ways, the pandemic has put the issue out of sight and out of mind for lawmakers. The state routinely was running above capacity in its prisons before COVID-19, even sending individuals to a private prison in Arizona.

Now, prisons are running at 87% capacity, although Jennings said this is in large part due to the fact that the court system has not been able to sentence individuals as it normally does.

Even though the numbers seem to have improved, legislators said the underlying problems that have plagued the state's criminal justice system will not go away.

"We'll be in the same boat in five years that we were a year ago if nothing is done," Jennings said.

The hope is that the criminal justice reform elements that have moved, such as an expansion of specialty courts for those with mental health or drug problems, will open the door for larger reforms. Legislation is also well on its way to extend the commission's lifespan for another year, allowing it to probe more areas.

That would include reviewing an expansion of options serving as an alternative to prosecution. It is also might entail a more aggressive reduction in sentences for low-level drug crimes and even early release for some offenders.

Owens said he believed discussions in Kansas about criminal justice reform really only began in 2019. More time, he said, would be needed to see through the more aggressive proposals. 

"In a state like Kansas that is so ingrained in its values, it is not something that is going to happen overnight," he said.

Mari Flowers wants legislators to look at policies to ease drug sentences and increase treatment. Her daughter, Jordan, was sentenced to six years in prison for drug offenses.

Mari Flowers is frustrated that the hardline mindset prevails, something that she says is especially prevalent in western Kansas.

"It was just a really bad experience here," she said. "It's almost like they just wanted them to fail."

In the meantime, her daughter sits at TCC for the foreseeable future.

While her mother sends books to her regularly, which are enthusiastically read and enjoyed, Jordan Flowers said she is skeptical of the substance abuse program at the prison. Unable to work in the prison due to the pandemic, the younger Flowers is left to sleep and clean her cell.

Her plea to legislators, via her mother? Do something, anything.

"'Have them look at this, and the time that they are sentencing,'" Mari Flowers said of her daughter's message. 

"I just can't imagine having to sit there for six years and waste away," the elder Flowers continued. "You know, she's a very bright girl. She's got a lot going for her, for sure. She made a bad decision, a few bad decisions. But a lot of the time (in prison) is wasted."