Douglas County Jail

With 310 diversions offered in 2016 to those facing criminal charges, Douglas County District Attorney Charles Branson thinks his office’s diversion numbers are about where they should be.

Nonetheless, Branson is looking to make diversions more available to the county’s fast-growing female inmate population. Of the 310 diversions in 2016, 124 were offered to women, an increase from the 72 offered in 2015.

Diversion is a procedure that gives an individual charged with a criminal offense the chance to avoid a court conviction and the adverse consequences that can have on future employment and other areas, Branson said.

“It’s a pretrial, pre-conviction tool,” the district attorney said. “It allows us to, after we’ve charged people, to put them on a process similar to probation or court services, which allows them to take classes, get counseling, keep their nose clean, do community service work and do other things we deem appropriate. At the end of that cycle, if they have completed all that is required, we’ll dismiss the charges against them.”

Diversions are allowed by a Kansas statute, which also establishes certain standards for their use. Branson said diversions can’t be offered to people accused of homicide, rape, kidnapping, sex crimes, crimes against children or other serious felonies. The state has also set other limitations.

“We can offer diversions for first-time DUIs but not for a second DUI,” Branson said. “We can offer diversions for first-time domestic battery charges but not for a second.”

The statute does give local prosecutors a good deal of flexibility about how they use diversions.

“You will find great variety from county to county,” Branson said. “There are counties that don’t allow diversion because they view it as buying your way out of trouble. Some counties will divert just about everything and set their diversion fees based on the severity of the offense. I have never been too fond of that. Tagging the nature of the offense to the cost of diversion is dicey to me.”

There is more uniformity among the state’s larger counties, and Branson said his office’s guidelines are very similar to those of Johnson, Sedgwick and Shawnee counties.

His office typically offers people charged with low-level, first-time offenses the opportunity to apply for diversion, Branson said. Diversions require a fee, and participants are still required to pay court costs. A waiting period of six to 18 months is required before charges are dismissed to ensure that the participant demonstrates good behavior.

The district attorney’s office also reviews cases to ensure the applicant has cooperated with law enforcement officers and not created any barriers to an investigation, he said. Applicants are also screened for substance abuse and criminal history. When the alleged crime involves a victim, that person is given a chance to voice their opinion about the diversion agreement. When applicable, restitution is required.

As part of the process, applicants are asked to submit a written statement explaining why they are a good candidates for the program, Branson said. One critical thing his office is looking for in the statements is admissions of guilt, he said.

“They have to say in their own words what they did, which builds accountability on their part,” he said; “A lot of diversions are rejected when they first come in because they make statements like, ‘I didn’t do this.’ If that’s the case, then they are not appropriate for diversions. They may be appropriate for dismissals, and they may need to come into court to say they didn’t do this.”

There is some novel experimentation nationally with diversions, Branson said. His conclusion from attending a national seminar on the subject in fall 2016 was that Kansas and Douglas County are ahead of the curve on diversions, but have not innovated as much as some programs in other states, such as a Philadelphia program that is offering diversions to people accused of selling cocaine.

“What they were finding was they were having people who were going to prisons for a year or two, coming back and doing the same thing all over again,” Branson said. “Instead of sending them straight to prison, they tried to figure out ways to keep them out of prison and change their behavior. I think it’s been in operation a year or two. They are having moderate success with it.”

The Philadelphia program was developed to address a local inner-city need, Branson said. While he said he doesn’t want to do something that novel, he does want to address the growing need in Douglas County to reduce the number of female inmates.

“One of the things I’ve noticed as we pulled together our numbers is a lot of those in the female population are women who have some kind of substance-abuse problem coupled with mental health issues,” he said. “They usually are not involved in violent crimes, but financial crimes or theft-type issues that are associated with their substance abuse. We see a lot of shoplifting, theft, forgery, and use of stolen bank cards.”

It’s still a preliminary review, and his office is still trying to classify the kinds of crimes with which women are most frequently charged, Branson said. The goal is to create a diversion program that gets to the roots of female offenders’ problems.

“We would probably be looking at those we could divert out of the jail and into some kind of early diversion process,” he said. “That would have some of the types of services that are offered through the (jail’s) re-entry program and then some sort of substance abuse or treatment program or dependency treatment program, which would be a little more intensive than classes.”

?The big task before the district attorney’s office in putting together the program is identifying the availability of needed services, the providers of the services and funding, Branson said.

“It’s not going to be a population covered by any type of insurance, and most insurances don’t cover any of the treatments we would be looking at,” he said. “So we are really looking at service problems. Those service providers are going to have to be compensated somehow.”