Bill Summary – FastDemocracy

Special Session of 2020
                                  HOUSE BILL No. 2002
                               By Representatives Jennings and Owens
                                               6-3

 AN ACT concerning crimes, punishment and criminal procedure; relating
   to diversion agreements; creating a certified drug abuse treatment
   program for people on diversion; supervision by court services or
   community corrections; amending K.S.A. 22-2907, 75-5291 and 75-
   52,144 and K.S.A. 2019 Supp. 22-2909 and repealing the existing
   sections.
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 Be it enacted by the Legislature of the State of Kansas:
     New Section 1. (a) There is hereby established a certified drug abuse
 treatment program for certain persons who enter into a diversion
 agreement in lieu of further criminal proceedings on and after July 1,
 2020. Placement of divertees in a certified drug abuse treatment program
 pursuant to a diversion agreement shall be limited to placement of adults,
 on a complaint alleging a felony violation of K.S.A. 2019 Supp. 21-5706,
 and amendments thereto, whose offense is classified in grid blocks 5-C, 5-
 D, 5-E, 5-F, 5-G, 5-H or 5-I of the sentencing guidelines grid for drug
 crimes who have no felony conviction of K.S.A. 65-4142, 65-4159, 65-
 4161, 65-4163 or 65-4164, prior to their repeal, K.S.A. 2010 Supp. 21-
 36a03, 21-36a05 or 21-36a16, prior to their transfer, or K.S.A. 2019 Supp.
 21-5703, 21-5705 or 21-5716, and amendments thereto, or any
 substantially similar offense from another jurisdiction.
     (b) As part of the consideration of whether or not to allow diversion
 to the defendant, a divertee who meets the requirements of subsection (a)
 shall be subject to:
     (1) A drug abuse assessment that shall include a clinical interview
 with a mental health professional and a recommendation concerning drug
 abuse treatment for the divertee; and
     (2) a standardized criminal risk-need assessment specified by the
 Kansas sentencing commission.
     (c) The diversion agreement shall require the divertee to comply with
 and participate in a certified drug abuse treatment program if the divertee
 meets the assessment criteria set by the Kansas sentencing commission.
 The term of treatment shall not exceed 18 months.
     (d) Divertees who are committed to a certified drug abuse treatment
 program pursuant to subsection (c) may be supervised by community
 correctional services or court services pursuant to a memorandum of
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 understanding entered into pursuant to K.S.A. 22-2907, and amendments
 thereto.
     (e) (1) Divertees in a certified drug abuse treatment program shall be
 discharged from the program if the divertee:
     (A) Is convicted of a new felony; or
     (B) has a pattern of intentional conduct that demonstrates the
 divertee's refusal to comply with or participate in the treatment program in
 the opinion of the county or district attorney.
     (2) Divertees who are discharged from such program pursuant to
 paragraph (1) shall be subject to the revocation provisions of the divertee's
 diversion agreement.
     (f) For the purposes of this section:
     (1) "Mental health professional" includes licensed social workers,
 persons licensed to practice medicine and surgery, licensed psychologists,
 licensed professional counselors or registered alcohol and other drug abuse
 counselors licensed or certified as addiction counselors who have been
 certified by the secretary of corrections to treat persons pursuant to K.S.A.
 75-52,144, and amendments thereto.
     (2) "Divertee" means a person who has entered into a diversion
 agreement pursuant to K.S.A. 22-2909, and amendments thereto.
     Sec. 2. K.S.A. 22-2907 is hereby amended to read as follows: 22-
 2907. (1)(a) After a complaint has been filed charging a defendant with
 commission of a crime and prior to conviction thereof, and after the
 district attorney has considered the factors listed in K.S.A. 22-2908, if it
 appears to the district attorney that diversion of the defendant would be in
 the interests of justice and of benefit to the defendant and the community,
 the district attorney may propose a diversion agreement to the defendant.
 The terms of each diversion agreement shall be established by the district
 attorney in accordance with K.S.A. 22-2909, and amendments thereto.
     (2)(b) Each district attorney shall adopt written policies and
 guidelines for the implementation of a diversion program in accordance
 with this act. Such policies and guidelines shall provide for a diversion
 conference and other procedures in those cases where the district attorney
 elects to offer diversion in lieu of further criminal proceedings on the
 complaint.
     (3)(c) Each defendant shall be informed in writing of the diversion
 program and the policies and guidelines adopted by the district attorney.
 The district attorney may require any defendant requesting diversion to
 provide information regarding prior criminal charges, education, work
 experience and training, family, residence in the community, medical
 history, including any psychiatric or psychological treatment or
 counseling, and other information relating to the diversion program. In all
 cases, the defendant shall be present and shall have the right to be
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 represented by counsel at the diversion conference with the district
 attorney.
     (d) (1) A county or district attorney may enter into a memorandum of
 understanding with the judicial administrator appointed pursuant to
 K.S.A. 20-318(b), and amendments thereto, or community correctional
 services to assist with supervision and monitoring of persons who have
 entered into a diversion agreement. The county or district attorney shall
 retain authority over whether a defendant is given the option to enter into
 a diversion agreement and whether the defendant's diversion agreement
 will be revoked.
     (2) A memorandum of understanding shall include provisions related
 to:
     (A) Determining the level of supervision needed for a defendant;
     (B) use of a criminal risk-need assessment; and
     (C) payment of costs for supervision.
     (3) When a person who has entered into a diversion agreement is
 supervised pursuant to a memorandum of understanding under this
 subsection, the person shall pay a supervision fee in the amount
 established in K.S.A. 21-6607(c)(3)(A) for misdemeanor or felony post-
 conviction supervision, as appropriate for the crime charged. The
 diversion supervision fee imposed by this paragraph shall be charged and
 collected by the district court. The clerk of the district court shall remit all
 moneys received under this paragraph from diversion supervision fees to
 the state treasurer in accordance with the provisions of K.S.A. 75-4215,
 and amendments thereto. Upon receipt of each such remittance, the state
 treasurer shall deposit the entire amount in the state treasury and credit
 such amounts as follows: To the state general fund, a sum equal to 41.67%
 of such remittance; and to the correctional supervision fund, a sum equal
 to 58.33% of such remittance. The diversion supervision fee specified by
 this paragraph may be reduced or waived by the supervision officer.
     (4) When a person who has entered into a diversion agreement is
 supervised pursuant to a memorandum of understanding under this
 subsection, the person shall pay the actual costs of any urinalysis testing
 required as a term of supervision. Payments for urinalysis testing shall be
 remitted to the county treasurer for deposit in the county general fund. The
 costs of urinalysis testing may be reduced or waived by the county or
 district attorney.
     (5) The supreme court may adopt rules regarding the content of a
 memorandum of understanding between a county or district attorney and
 the judicial administrator and the administration of a supervision program
 operating pursuant to such memorandum of understanding.
     Sec. 3. K.S.A. 2019 Supp. 22-2909 is hereby amended to read as
 follows: 22-2909. (a) (1) A diversion agreement shall provide that if the
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 defendant fulfills the obligations of the program described therein, as
 determined by the attorney general or county or district attorney, such
 attorney shall act to have the criminal charges against the defendant
 dismissed with prejudice. The diversion agreement shall include
 specifically the waiver of all rights under the law or the constitution of
 Kansas or of the United States to a speedy arraignment, preliminary
 examinations and hearings, and a speedy trial, and in the case of diversion
 under subsection (c) waiver of the rights to counsel and trial by jury. The
 diversion agreement may include, but is not limited to, provisions
 concerning:
     (A) Payment of restitution, including court costs and diversion costs,;
     (B) residence in a specified facility,;
     (C) maintenance of gainful employment, and;
     (D) participation in programs offering medical, educational,
 vocational, social and psychological services, corrective and preventive
 guidance and other rehabilitative services; and
     (E) supervision by the county or district attorney, or by court services
 or community correctional services pursuant to a memorandum of
 understanding entered into by the county or district attorney pursuant to
 K.S.A. 22-2907, and amendments thereto, including the diversion
 supervision fee and urinalysis costs described in K.S.A. 22-2907, and
 amendments thereto, when applicable.
     (2) If a county creates a local fund under the property crime
 restitution and compensation act, a county or district attorney may require
 in all diversion agreements as a condition of diversion the payment of a
 diversion fee in an amount not to exceed $100. Such fees shall be
 deposited into the local fund and disbursed pursuant to recommendations
 of the local board under the property crime restitution and victims
 compensation act.
     (3) If the attorney general enters into a diversion agreement: (A) Any
 diversion costs or fees collected pursuant to such agreement shall be
 deposited in the fraud and abuse criminal prosecution fund established by
 K.S.A. 75-765, and amendments thereto; and (B) the attorney general may
 enter into agreements with the appropriate county or district attorney or
 other appropriate parties regarding the supervision of conditions of such
 diversion agreement.
     (b) The diversion agreement shall state: (1) The defendant's full
 name; (2) the defendant's full name at the time the complaint was filed, if
 different from the defendant's current name; (3) the defendant's sex, race
 and date of birth; (4) the crime with which the defendant is charged; (5)
 the date the complaint was filed; and (6) the district court with which the
 agreement is filed.
     (c) If a diversion agreement is entered into in lieu of further criminal
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 proceedings on a complaint alleging a violation of K.S.A. 8-1567, and
 amendments thereto, the diversion agreement shall include a stipulation,
 agreed to by the defendant, the defendant's attorney if the defendant is
 represented by an attorney and the attorney general or county or district
 attorney, of the facts upon which the charge is based and a provision that if
 the defendant fails to fulfill the terms of the specific diversion agreement
 and the criminal proceedings on the complaint are resumed, the
 proceedings, including any proceedings on appeal, shall be conducted on
 the record of the stipulation of facts relating to the complaint. In addition,
 the agreement shall include a requirement that the defendant:
     (1) Pay a fine specified by the agreement in an amount equal to an
 amount authorized by K.S.A. 8-1567, and amendments thereto, for a first
 offense or, in lieu of payment of the fine, perform community service
 specified by the agreement, in accordance with K.S.A. 8-1567, and
 amendments thereto; and
     (2) participate in an alcohol and drug evaluation conducted by a
 licensed provider pursuant to K.S.A. 8-1008, and amendments thereto, and
 follow any recommendation made by the provider after such evaluation.
     (d) If a diversion agreement is entered into in lieu of further criminal
 proceedings on a complaint alleging a domestic violence offense, as
 defined in K.S.A. 2019 Supp. 21-5111, and amendments thereto, the
 diversion agreement shall include a requirement that the defendant
 undergo a domestic violence offender assessment and follow all
 recommendations unless otherwise agreed to with the prosecutor in the
 diversion agreement. The defendant shall be required to pay for such
 assessment and, unless otherwise agreed to with the prosecutor in the
 diversion agreement, for completion of all recommendations.
     (e) If a diversion agreement is entered into in lieu of further criminal
 proceedings on a complaint alleging a violation other than K.S.A. 8-1567,
 and amendments thereto, the diversion agreement may include a
 stipulation, agreed to by the defendant, the defendant's attorney if the
 defendant is represented by an attorney and the attorney general or county
 or district attorney, of the facts upon which the charge is based and a
 provision that if the defendant fails to fulfill the terms of the specific
 diversion agreement and the criminal proceedings on the complaint are
 resumed, the proceedings, including any proceedings on appeal, shall be
 conducted on the record of the stipulation of facts relating to the
 complaint.
     (f) If the person entering into a diversion agreement is a nonresident,
 the attorney general or county or district attorney shall transmit a copy of
 the diversion agreement to the division. The division shall forward a copy
 of the diversion agreement to the motor vehicle administrator of the
 person's state of residence.
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     (g) If the attorney general or county or district attorney elects to offer
 diversion in lieu of further criminal proceedings on the complaint and the
 defendant agrees to all of the terms of the proposed agreement, the
 diversion agreement shall be filed with the district court and the district
 court shall stay further proceedings on the complaint. If the defendant
 declines to accept diversion, the district court shall resume the criminal
 proceedings on the complaint.
     (h) Except as provided in subsection (i), if a diversion agreement is
 entered into in lieu of further criminal proceedings alleging commission of
 a misdemeanor by the defendant, while under 21 years of age, under
 K.S.A. 2019 Supp. 21-5701 through 21-5717, and amendments thereto, or
 K.S.A. 41-719, 41-727, 41-804, 41-2719 or 41-2720, and amendments
 thereto, the agreement shall require the defendant to participate in an
 alcohol and drug evaluation conducted by a licensed provider pursuant to
 K.S.A. 8-1008, and amendments thereto, and follow any recommendation
 made by the provider after such evaluation.
     (i) If the defendant is 18 or more years of age but less than 21 years
 of age and allegedly committed a violation of K.S.A. 41-727, and
 amendments thereto, involving cereal malt beverage, the provisions of
 subsection (h) are permissive and not mandatory.
     (j) If a diversion agreement is entered into in lieu of further criminal
 proceedings on a complaint alleging a violation of K.S.A. 2019 Supp. 21-
 6421, and amendments thereto, the agreement:
     (1) Shall include a requirement that the defendant pay a fine specified
 by the agreement in an amount equal to an amount authorized by K.S.A.
 2019 Supp. 21-6421, and amendments thereto; and
     (2) may include a requirement that the defendant enter into and
 complete a suitable educational or treatment program regarding
 commercial sexual exploitation.
     (k) Except diversion agreements reported under subsection (l), the
 attorney general or county or district attorney shall forward to the Kansas
 bureau of investigation a copy of the diversion agreement at the time such
 agreement is filed with the district court. The copy of the agreement shall
 be made available upon request to the attorney general or any county,
 district or city attorney or court.
     (l) At the time of filing the diversion agreement with the district
 court, the attorney general or county or district attorney shall forward to
 the division of vehicles of the state department of revenue a copy of any
 diversion agreement entered into in lieu of further criminal proceedings on
 a complaint alleging a violation of K.S.A. 8-1567, and amendments
 thereto. The copy of the agreement shall be made available upon request to
 the attorney general or any county, district or city attorney or court.
     Sec. 4. K.S.A. 75-5291 is hereby amended to read as follows: 75-
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 5291. (a) (1) The secretary of corrections may make grants to counties for
 the development, implementation, operation and improvement of
 community correctional services that address the criminogenic needs of
 felony offenders including, but not limited to, adult intensive supervision,
 substance abuse and mental health services, employ