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Kansas Diversion - Defendant's Remedies and Prosecutorial Opportunities

NCJ Number
Washburn Law Journal Volume: 20 Issue: 2 Dated: (1981) Pages: 344-374
J B Cox
Date Published
31 pages
Diversion under Kansas law is described and critiqued.
In 1978, the Kansas Legislature made diversion available as an alternative to institutionalization. Under the diversion statute, each district and county attorney must promulgate written policies and guidelines for a diversion program and must inform each defendant of its availability. A defendant can be diverted at any time after charging and prior to conviction. Initially, the defendant must indicate to the prosecutor he/she wants to be diverted. The prosecutor then considers certain factors which would help him/her determine if diversion would be in the interest of justice and would benefit the defendant and the community. If the prosecutor offers diversion and the defendant has consented to the conditions of diversion, the court must stay further proceedings. If the prosecutor finds the defendant has successfully completed his/her diversion, the prosecutor requests that the court dismiss the charges, and the court is required to do so. The courts should be given the right to review the prosecutor's denial of diversion in a limited way, not in deference to the defendant, but to ensure the legality of the decision. Diversion may allow that an innocent defendant be subjected to the control of the criminal justice system, but defense counsel can lessen that risk to the client by using statutory discovery or informal efforts to determine whether the defendant is provably guilty before consenting to diversion. Participation in community corrections funding would enable the prosecutor to be creative and flexible in determining eligibility for the conditions of diversion. A total of 254 footnotes are provided.