Kevin Gray
KU Statehouse Wire Service
Kansas drug offense sentencing could soon undergo major transformations if the House passes a trio of proposed bills.
Last month, the House Corrections and Juvenile Justice committee introduced and debated three bills, House Bills 2087, 2088 and 2090. None of the bills have reached the House for voting.
The bills target individuals with simple felony drug possession charges. They aim to make treatment more available and keep drug offenders out of prisons. In doing so, the bills would expand Senate Bill 123, which passed in 2017.
Senate Bill 123 created a treatment program for drug offenders. The program lasts up to 18 months and acts as a diversion from prison. Offenders are currently eligible for the program only after conviction and can only complete the program twice. Their third offense becomes a presumptive prison sentence.
House Bill 2087 would make Senate Bill 123 treatment available before trial. This would allow offenders to complete the program up to five times before a presumptive prison sentence.
House Bill 2088 would extend the treatment to small sellers. The courts would have discretion over what constitutes small sales.
House Bill 2090 would remove the presumptive prison sentence that currently starts after the second offense from Senate Bill 123. Judges would still have discretion to sentence an offender to prison time, but treatment would always be the presumptive sentence for any simple felony drug possession charge.
According to Scott Schultz, Kansas Sentencing Commission executive director, timing for the bills is urgent. He said the commission ran 10-year projections on prisons for the Kansas Department of Corrections, (DOC). The projections stated drug offenders would become a major percentage of inmates if nothing changes. This would further strain the already burdened capacity in state prisons.
“The commission is being proactive in trying to address what we do with those offenders,” Schultz said. “Can we do something in the community-based capacity to keep them in the community with their families, hopefully keeping holding down a job, hopefully, possibly even paying taxes, rather than having them sit in one of our prisons around the state?”
Schultz said the state would be responsible for adding $2 million to the Kansas Sentencing Commission budget if all three pass. Currently, its budget is $6.5 million.
Rep. John Whitmer (R-Cheney) said only one problem could prevent House Bill 2087 from passing.
“Community Corrections (was) the only opposition, and it was because of cost,” Whitmer said.
However, according to Schultz, the bill would produce cost savings that would counteract the initial cost. He said the bill would help alleviate the space problem facing the state prison system. Of the 9,663 inmates in 2016, 1,370 were serving drug sentences, according to the Kansas Sentencing Commission. If the program had been available during their sentencing, Schultz said about 10 percent, or 137 inmates, would not have entered prison. This would have resolved much of the overcrowding.
He also said the bill would cut down on court costs. If 137 offenders in 2016 had successfully completed the pre-trial program, then the state would have saved court costs from 137 trials. Additionally, increasing the number of programs decreases the likelihood of relapse and additional trials.
Council chairman Rep. J. Russell Jennings (R-Garden City) said the bill would certainly save Kansas money.
“When you intervene with an offender with a drug addiction with a program that effectively addresses that addiction, you are likely reducing long-term costs to the state,” Jennings said. “You avoid the costs of prosecution and defense. You avoid additional costs associated with incarceration.”
The next bill discussed was House Bill 2088, which would expand Senate Bill 123 treatment to small sales. The bill would give discretion of small sales to the courts.
“There were a lot of people that were getting convicted of possession offenses that were buying and doing small sales to support their habit,” Schultz said.
The committee did not spend significant time discussing House Bill 2088. Rep. Blaine Finch (R-Ottawa) said the committee should wait for more information to decide and define what constitutes a small seller.
“I’m open to look at the analysis of 2088,” Finch said.
House Bill 2090 created the longest discussion.
Schultz said beating an addiction is a long journey, and the key is repeated treatments. He said 10 percent of first-treatment offenders receive the help they need. The other 90 percent require more treatment to beat their addiction.
“Substance abuse treatment evolves over time,” Schultz said. “You have a situation where things change, and we know that offenders are going to fail, and they’re going to fail, and again, and again.”
However, Whitmer said the law needs to include a cutoff that decides when enough is enough for offenders.
“I guess I would be OK with three, but it’s any subsequent (offenses),” Whitmer said. “At what point do we start saying there are consequences for your actions?”
Rep. Eric L. Smith (R-Emporia) said the threat of prison is what makes some offenders try treatment instead of a desire to beat their addiction
“When you see these people who are incarcerated, that’s a much different person than the person I’m arresting on the street who’s not asking for (treatment),” Smith said. “You put him in a position where he, or she, is determined to get out of the consequences. That’s when the court gets to see them. That’s when they ask for these programs. When you say, we’re going to take a narrow view of three times, I say that individual knows that. They have no other recourse.”
According to Finch, prison sentences currently include treatment programs inside of prison, called lock-down treatment.
“It’s not simply a term of imprisonment,” he said. “It’s a term of imprisonment where they can complete a certified substance abuse program, and that then can have modification. So it’s not an automatic 17 months in prison. It’s another chance to complete substance abuse training.”
Smith said this treatment is the best environment for change.
“If there was some type of lock-down treatment, there would have been earlier success,” Smith said. “Once they’ve hit that third and fourth, fifth situation, they’ve already exhibited a need for some controls, some structure that would give you that opportunity then to put in a successful treatment.”
However, Jennings said only half of drug offenders in prison receive the treatment they need, and the reason so few offenders in prison receive treatment, according to Schultz, is funding.
“Lack of appropriation has not allowed DOC to provide this particular form that’s already in statute and has been for years,” Schultz said. “So in effect, all those offenders are actually going to do their entire time.
Schultz said the Kansas Sentencing Commission can only fund treatment programs before an offender’s third offense. Because of this, prison treatment programs are no longer state funded and therefore not Senate Bill 123 treatment. He said the number of offenders who receive in-prison treatment is small, and even if offenders receive treatment in prison, it is not the same program offered through House Bill 2090.
Jennings said Smith would be in favor of allocating funds to in-prison treatment programs.
“It was anticipated that the secretary of corrections would be able to operate a short-term, prison-based, locked-up-based treatment program, but that has never been funded by the legislature, so it is not available to do,” Jennings said. “(We might) want to explore as a legislature the merits of actually funding that program that today does not exist.”
Finch said his plan is the best action moving forward.
“I think House Bill 2087 probably makes the most sense, probably the easiest to lift,” he said. “I think (2090 is) probably a step too far for me to look to repealing the whole special sentencing rule, but we still keep the four-month imprisonment to complete the program. We need to fund the program.”
House Bill 2087 has no updates.
House Bill 2088 currently sits in Senate Judiciary.
House Bill 2090 awaits vote. The House Corrections and Juvenile Justice Committee recommended passing the bill.
Kevin Gray is a University of Kansas senior from Denver majoring in Journalism and Linguistics.