For top prosecutors in the state’s largest counties, being tough on crime used to loom largest as a qualification. But the events of 2020 have broadened the debate about criminal justice. District attorney races in Johnson and Shawnee counties this fall could provide a window into understanding how much further voters want to go with reforms.
The ability to put criminals behind bars has long been a key qualification for prosecutors in Kansas’ largest counties.
It could be argued that, for decades, it was the attribute that most mattered to voters. If elections for district attorney were even contested, candidates usually dueled over conviction rates and outlined the ways in which they would be tougher on crime.
But in the wake of George Floyd’s death and this summer’s Black Lives Matters protests, the criminal justice debate is broadening to include topics that wouldn’t have been on the public’s radar even a few years ago, such as equity, policing tactics, conscious and unconscious bias, and whether the close relationship between prosecutors and police can be too cozy.
It’s hardly a typical election year for law enforcement officials. Prosecutors who once touted campaign slogans like “tough on crime” and “law and order” have tweaked their message, says Bennett L. Gershman, a Pace University professor of law and a former prosecutor who is now considered a national expert on prosecutorial misconduct and a frequent speaker at campus Federalist Society events.
“Prosecutors need to be and are showing themselves as much more focused on making sure the justice system is just,” he says.
The top elected prosecutor in many jurisdictions often goes unchallenged. When opponents arise, some voters feel uneasy making a judgment call on who is better qualified for the job.
Understanding the complex workings of the legal system isn’t for the one-dimensional. It means many incumbents enjoy long tenures, Gershman says.
“Now the community has become a much more powerful constituency than maybe in the past,” Gershman says.
As if to underscore the changing political climate, reform-minded candidates prevailed in the August primary elections in Wyandotte and Douglas counties. Come Nov. 3, the most high profile contests in the general election will involve Republican incumbents squaring off against Democratic challengers in Johnson and Shawnee counties.
Johnson County voters will decide between 12-year incumbent District Attorney Steve Howe, a Republican, and Zach Thomas, a Democrat who owns his law firm and worked in the Johnson County public defender’s office.
Shawnee County voters will decide between incumbent Mike Kagay, a Republican, and Joshua Luttrell, a Democrat who owns his law firm in Topeka. Sedgwick County District Attorney Marc Bennett and Reno County District Attorney Tom Stanton are poised to win election without facing opposition.
Criminal justice concerns have become major talking points in the race for president as the candidates paint competing interpretations of whether protests over policing advance racial justice or encourage social disorder and rioting. But debates at the local level in Kansas have been, initially at least, unfolding in a much more nuanced way, with candidates of both parties acknowledging the need for introspection regarding race and criminal justice issues.
But exactly how do voters evaluate whether a prosecutor is really serving justice?
A POSITION WITH POWER
It’s difficult for voters to assess or review a prosecutor’s work, many argue, because the practice of law is complex. It’s filled with confidential information and requires a lot of judgment calls by the top prosecutor. It takes an enormous amount of trust from voters.
“Prosecutors really have more discretion, I think, than any public official in America. Who has the power to deprive people of their liberty and even their life and certainly their reputation?” Gershman says.
Conviction rates and high-profile cases often get mentioned in media reports, but the vast majority of the cases prosecutors handle fail to generate much in the way of headlines.
When voters stop and ask themselves who to vote for, Gershman says, they might think about prosecutors’ day-to-day communications with the public. How do they talk about mental illness, drug cases and gun violence?
Others point to looking at how often prosecutors use alternatives to jail time as a way of resolving cases.
The ACLU of Kansas believes that diversion practices are crucial. In 2017, it released a report showing that Kansas was behind the curve with diversions. The national rate was 9% while some Kansas counties hovered closer to 2%.
“It was really alarming how far Kansas was behind,” says Lauren Bonds, legal director of the ACLU of Kansas.
Some county prosecutors, including Sedgwick County District Attorney Marc Bennett, took umbrage at the report. In an interview with Wichita’s KAKE-TV news, Bennett called the report “laughable.” He accused it of “glossing over reality” and said that diversion is only appropriate for first-time offenders who commit low-level crimes and people who would be unlikely to go prison even if convicted and placed on probation.
In a written response, he also outlined how, because there is not a conviction, state law does not allow a defendant placed on diversion to be supervised by a probation officer, leaving supervision to the district attorney’s office itself.
“Our staff members are not probation officers; they don’t make home visits or go to job sites,” Bennett said. “Instead, we provide a list of requirements to defendants placed on diversion and it falls on the defendant to meet the requirements and show proof of the same. We work with diverted subjects but if they cannot meet the requirements of the diversion contract, their diversion is withdrawn and they are placed back on the docket.”
Bennett went on to say that a person with substance abuse or mental health issues, or who has suffered physical or sexual abuse, needs more help than a staff member in a prosecutor’s office can provide.
“The reality is that most county attorney’s offices in Kansas employ a single attorney with 1 or 2 staff members,” Bennett stated, “many of whom are not full time and instead supplement their work as part-time prosecutors with a private practice, some even doing criminal defense in neighboring counties.”
Bonds says she can see where Bennett is coming from but still considers more widespread use of diversion as potentially being a good deal for taxpayers.
“I think he made some valid points,” Bonds says. “He really raised the question of: Is there sufficient funding and support for the resources someone would need to be successful in diversion?”
A willingness to use diversion to provide low-level, nonviolent offenders with alternatives to prison can change the trajectory of an individual and their family, the organization believes.
“Having pretrial diversion can really be the difference between being able to get a job, being able to vote, being able to stay out of prison,” Bonds says.
Kansas taxpayers should take notice of diversion rates, she says, because if Kansas could offer diversion at the national average, it would save millions of dollars each year. Because its prison populations exceed available space, Kansas has decided to pay for private prison space in Arizona.
A POLITICAL LAND MINE FOR PROSECUTORS
Another challenge that prosecutors face in the aftermath of Floyd’s death is navigating relationships with law enforcement officers. They must work with police to bring criminals to justice, but what happens when the police themselves are accused of crimes, as they are in Floyd’s death?
That’s a political land mine many prosecutors are now trying to avoid, this year more than before.
“It takes a lot of political savvy for prosecutors to be able to navigate this situation where they’re going to get the trust of the public but also the trust of the police,” Gershman says.
Americans want to hear that prosecutors will hold police accountable, he says, but they must also balance these new demands for scrutiny with maintaining a viable relationship with police.
“I’ve just seen too many instances,” he says, “where prosecutors are overly indulgent of police conduct and police claim justifiable homicide, that you really feel very, very despairing in terms of whether the prosecutors can show the kind of courage to go against police officers.”
He says many prosecutors don’t want to get crosswise with local law enforcement. But after Floyd’s death, many wonder how that will align with public sentiment come election time.
“Prosecutors are beholden to police in many ways. I mean their cases depend on police investigations, police acquiring evidence and police testimony. So prosecutors have to walk a very careful line here,” Gershman says. “Police unions are sometimes so powerful that they can swing an election.”
Some of that sentiment was evident in Wyandotte County during the primary campaigns. The union vowed to unseat incumbent Mark Dupree after several clashes that included Dupree creating a unit to investigate wrongful convictions. Local attorneys say a ripple effect from that conflict is affecting cases. Despite a push by critics to raise red flags about his practices and competence, voters gave Dupree, Kansas’ first African American district attorney, a 10-point victory over his Democratic challenger in the August primary. He’ll face no Republican in the general election.
“My reforms threaten the status quo in Wyandotte County, and that’s the only reason so many people who benefit from the status quo want to derail my office’s progress,” Dupree wrote in response the criticisms he’s faced.
In Douglas County, Suzanne Valdez, a University of Kansas law professor, defeated longtime incumbent Charles Branson. Valdez, a Hispanic woman, opposes expanding the jail and values alternatives to incarceration. She has promised to hire more people of color and prosecutors who have experienced how racism creeps into criminal justice.
Across the country, Gershman is seeing more minorities seeking election as prosecuting attorneys. Some are promising changes to bail, discovery issues and equity. His advice? Don’t expect a honeymoon period.
“When they make mistakes, those mistakes are usually feverishly grabbed by some people in the media, and that’s something that I find I guess interesting. And maybe not so shocking – because a woman who is a prosecutor, an African American who is a prosecutor – I guess they have to show more of their strong positions on crime,” Gershman says.
IN SHAWNEE COUNTY, A CONTRAST OVER DRUG COURT
Floyd’s death left a hideous mark on the country, but it also dredged up especially painful memories in Topeka.
One of the state’s most contentious fatal police shootings was captured on video there in 2017. The shooting left Dominique White, a 30-year-old black man, dead and a community horrified as it watched video of his death.
On Sept. 28, 2017, two Topeka police officers questioned White about gunshots fired in a populated area. White had a gun but said he didn’t. The video shows the officers ordering White to lie down. He did not. White did not allow the officer to remove the gun and took off running. Officers then shot him several times as he ran away.
A police investigation later determined that White’s hand was hovering over the gun as he ran.
It left a community with questions.
The police investigation ultimately found that the officers committed no policy violations, because it was reasonable to believe that they perceived an immediate lethal danger based in part on his noncompliance, their training and the fact his hand was near the gun.
District Attorney Mike Kagay determined that there wasn’t enough evidence to prosecute the officers based on the police investigation. It was a decision that has been scrutinized.
Kagay says the decision wasn’t made easily. The district attorney says he went through every second of the video repeatedly.
“I invited several prosecutors from around the state to come join so they could render an opinion,” he says. “There was not a single person in that room who thought that criminal charges could be filed.”
The Federal Bureau of Investigation also cleared the officers of civil rights violations. After the ruling, Kagay released the videotape to White’s family and the public.
“I told them then, ‘I don’t expect you to accept this. If it were my son, no explanation would be good enough for me,’” he says.
But Luttrell isn’t making the White decision a campaign issue.
“I’ve seen the video, and I do not think that the police officers did the appropriate thing. The question before a district attorney is whether or not to prosecute them criminally, and a lot goes into that decision. Because I don’t have all the information that he did, it would just be, it would be inappropriate and when we’re talking about cases like that or things like that, I’m not going to use those as campaign punching points for my opponent.”
But there are other decisions Luttrell does take issue with.
One of Luttrell’s top priorities is reshaping drug court and emphasizing a pretrial diversion program. Luttrell says Kagay changed drug court from a pretrial to a post-trial court. That change should give Shawnee County residents pause, he says, because it means some low-level drug violators must be convicted before going through treatment.
Luttrell wants to see an expansion in specialty courts like mental health, veterans and drug courts that help rehabilitate offenders.
Kagay, who had worked as an assistant DA in drug court, contends that he had no choice but to curtail the official pretrial drug court because district judges wanted to use a post-conviction drug court program.
However, he says, it hardly ended his ability to offer diversion to low-level, nonviolent drug offenders. A defendant might not go through drug court, but his office uses the typical diversion program it employs for other offenses to make sure low-level offenders can prove they are following the court rules and avoid prison time.
“The truth of the matter is that we still do the same number of pre-conviction cases,” he says.
“We’ve had really good success. I’m really pleased with the results of that program.”
Kagay says the new drug court is more successful than the previous system. The old drug court had issues with efficacy and accountability.
“I need to know that the time, the resources we’re investing into something is generating good outcomes. Otherwise you’ve got to try something else,” he says.
The diversion rate was among the best in the state, the ACLU noted in its report.
“I think that’s fantastic that they are at the national average,” Bonds says. “That being said, that doesn’t mean that there is no room for improvement.”
Reforming people is at the root of Luttrell’s campaign. Luttrell has a background in sociology and thinks that’s an asset as criminal justice reform work continues across the country. He was advocating for change well before Floyd’s death.
“Criminal justice isn’t one-size-fits-all and requires innovative kinds of thinking,” he says. “You have to be ready to address them in different ways.”
Luttrell also wants to see an end to what he calls mass incarceration in Kansas. He believes Kagay has misused the felony first degree murder charge, which allows a prosecutor to charge defendants with first-degree murder if they engage in a felony that causes someone to die.
He was especially concerned when a Silver Lake man was charged with it after his granddaughter died from carbon monoxide poisoning because a generator was left on in a closed garage.
Luttrell also wants to work to reform cash bail. Critics argue cash bail punishes the poor because defendants with means can quickly leave jail and go back to work and family. Yet a poor defendant facing the same charges doesn’t have the wherewithal to post bail and will remain locked up, losing their livelihood.
It’s inequitable, he says, and it’s also a waste of taxpayer dollars to house inmates that the court system deems eligible to bond out. Luttrell says he would use his discretion as district attorney to urge the release of some low-level, nonviolent offenders on their own recognizance.
Luttrell also says he will not tolerate unlawful actions by law enforcement, including searches that run afoul of the Fourth Amendment.
“You see that an officer did a search that he shouldn’t have – don’t charge it,” he says.
He won’t file charges to appease police only to have a defense attorney get them dismissed.
Luttrell says that it’s a careful balance of working with police to create change. He’d like to see more community reviews of cases handled by the police and the District Attorney’s Office to ensure that residents’ voices are heard. That requires give and take from all sides.
“You have to have a community wanting to change their relationship with police, and you have to have the police wanting to change their relationship with the community,” Luttrell says.
The tough-on-crime approach that leads to more incarcerations isn’t the solution, he says. Prisons aren’t offering resources to help inmates and often end up releasing inmates who are more troubled and more likely to reoffend.
“Do you want this person to suffer, or would you like to have a system that encourages or improves their odds of not committing that crime again?” he asks.
A PROSECUTOR GRAPPLES WITH RACISM
Kagay says he isn’t the type to wave a flag and shout, “Look at me, I’m reforming.”
But he has worked with state lawmakers to tighten laws that forbid felons to possess a gun. He’s worked to lessen human trafficking by proposing that first-time “johns” be charged with a felony to affect the demand for prostitution.
He’s also working to fix what he sees as unintended consequences of an overall laudable juvenile justice reform law from 2016. Kagay says school administrators without criminal justice backgrounds are allowed to determine whether some crimes are felonies or misdemeanors. It means inconsistent outcomes for offenders and victims.
Reform packages must be carefully considered so they don’t leave unintended consequences and threaten public safety.
Kagay, who is finishing his first term, says he constantly reviews every case in his department including those with favorable outcomes to see what could be better.
As for Floyd’s death, he said he was reduced to tears.
“My responsibility, I think as prosecutor, is to remain objective through all of this,” he says. “I’d like to say that justice is above politics. I’m kind of an idealist.”
Kagay says his relationships with the public have opened his eyes to institutional and hidden racism. During a listening session at a barber shop, he acknowledged that outwardly model individuals have been able to hide child molestation. If they can do that, fighting the unconscious bias of racism in criminal justice, law enforcement and society won’t be easy.
“So if we’re going to sit here today and say we’re going to find everybody, I wish that was true,” Kagay told those at the barber shop.
Kagay acknowledges that conversations with Antioch Missionary Baptist Church Pastor T.D. Hicks opened his mind to inequities that he hadn’t considered before becoming district attorney.
“Sometimes somebody has to tell you that your slip is showing. Sometimes somebody has to tell you that you need to go put on some deodorant, because if you’ve been in a funk all your life and it starts to smell normal to you, you don’t know you stink,” Hicks says in a recorded discussion that Kagay released as part of his campaign.
Kagay laments that he didn’t understand the topic as much until becoming DA.
“The time I took to educate myself, that happened after I became DA,” Kagay says.
“(Hicks) started asking me things and said, ‘Look at this, look at that.’ The key is to have those relationships.”
Kagay says the District Attorney’s Office is one place to talk about equity and racism, but it can’t be the only place.
In the months following Floyd’s death, Kagay says he’s noticed an uptick in the number of people who want to talk to him about criminal justice reform. He’s opened his office door to have those discussions as often as possible, even with the COVID-19 pandemic.
Kagay pledges to continually review his office’s approach to racism and overall reform.
“You are never going to hear me say, ‘Guys, it’s OK, we’re done,’” he says. “This is an ongoing thing. This is never going to be done.” He adds that law enforcement agencies in Shawnee County feel the same about Floyd’s death.
“They’re embarrassed by it,” he says. Kagay disputes the idea that his office participates in mass incarceration. “Four out of five of the cases we handle are presumptive probation cases,” he says.
Kagay spent years handling drug court cases and says he has worked to improve the efficacy and accountability of that program.
One of Kagay’s long-term goals is to establish an alternative court that offers the same type of rehabilitative resources found in drug and mental health courts to nearly every presumptive probation case. The effect would reduce crime and help offenders succeed.
“The idea is that instead of just having a drug court and instead of just having a mental health court or a veterans court, why not have a holistic approach to the problem?” he says.
He’d like to see one court deal with low-level offenders, including veterans, the mentally ill and drug offenders. He envisions a court that could offer anger management and other help in domestic violence cases where the law calls for presumptive probation – a judicial division designed to get at the root of bad behavior.
The idea is lofty, he acknowledges, and hasn’t happened in part because of resources. The local district court, he says, is reluctant to take on that kind of expansion right now.
It would require regular contact with a judge and significant time from court staff who would have to work closely with participants.
Kagay isn’t giving up on that plan, but he says establishing a veterans court is his initial goal. It makes sense given the large population of veterans who live near the Veterans Affairs hospital in Topeka.
A CHALLENGE FOR THE FIRST TIME IN YEARS
While discussions about criminal justice are broadening to examine the topic of who shouldn’t be going to jail, it’s hard for prosecutors not to be evaluated for how well they are doing at bringing criminals to justice.
Johnson County District Attorney Steve Howe won his post in 2008 and then went unchallenged for 12 years. This year, he faces attorney Zach Thomas, who says Howe has lost his edge.
Thomas contends that Howe has become complacent by failing to try high-profile cases himself and rejecting the most basic criminal justice reforms.
“The office is falling apart with no sense of leadership” he says.
For example, Thomas criticizes Howe’s office for failing to get a conviction in the molestation case against Dennis Creason, the founder of Oak Lawn Montessori.
Creason, who operated the Shawnee Christian school, was charged with five counts of aggravated indecent liberties with a child in 2018. It was alleged that he fondled children, ages 6, 8 and 10 years old, for several years. The charges carried a mandatory life sentence with no parole for 25 years.
Thomas says a last-minute change in the assistant district attorney handling the case didn’t help. He thinks Howe, who held a news conference at the onset of the case, should have stepped in.
“He’s on the news saying how big a case this is. Why isn’t he in there prosecuting the case himself? When you look back at all the major cases that have happened in Johnson County, you see that tendency, that pattern, continue. Steve’s not in the courtroom.”
Howe firmly disputes Thomas’ account, saying he prosecutes one to three cases at a time, including high-profile murder cases. His chief deputy with significant experience in sexual assault cases came onto the case, he says, but it wasn’t last minute.
“It’s a good example of, we’re willing to try tough cases. The right thing to do was to try it. We had no DNA evidence. We had the word of several little girls. And I don’t apologize for trying to seek justice for them,” he says as his voice rises. “And I think we put on the very best case that we could based on the evidence that we had.”
Prosecuting sexual assault cases is among the most complex and difficult. Juries, he says, want to see DNA.
“If I wanted to just pad my stats, I’d just not even file, he says. “But we choose to seek justice for victims in those instances, and I think it’s the right thing to do.”
Howe contends that his office continues to be on the cutting edge.
“I’ve done some pretty innovative things in my office,” he says. “I’m the first one in Kansas to start a lethality assessment for domestic violence.”
Officers ask domestic violence victims a series of questions, and the answers help determine the next steps. In some cases that affects a bond or the ultimate disposition of a case. Police will also determine if they should hand the victim a phone and get them to a shelter.
“Those are the ones where the victim needs the most help,” he says.
His office also helped to create a veterans court to keep more veterans out of prison and get them into treatment programs. He also created teams that respond quickly to elder abuse in order to reduce physical and financial abuse.
“Most agencies are overwhelmed and can’t do those types of things,” he says.
Howe says he’s proud to be part of the teams that nearly eliminated the backlog of sexual assault kits in the state. In addition, he says, his office isn’t afraid to prosecute drug dealers for murder if a drug like opiates kills someone.
“We’re one of the few DA’s offices that will actually prosecute drug dealers who cause the death of other individuals,” Howe says.
USE OF DIVERSION A FLASH POINT
Thomas calls himself a trial-tested attorney who will aggressively focus on violent crime. He wants to work with judges to create alternative courts for drug offenders and those who are mentally ill. Specialty courts could reduce crime, save money and address the root causes of many problems that law enforcement must handle. Such courts are widely supported by Republicans and Democrats.
“The Koch brothers are one of the biggest private donors to this cause. It’s unbelievable that we don’t have it,” Thomas says, referring to the billionaire brothers Charles and David, whose corporation is based in Wichita. (David Koch died in August 2019.)
Johnson County does have what he calls an underutilized mental health court diversion. But he says it’s not enough.
Thomas is also sharply critical of Howe’s diversion rates, which went from 17% in 2009 to 7% in 2019. Diversion is effective for low-level offenders, Thomas says, and allows those defendants to work and fuel the economy while on probation.
Decreasing diversion rates, he says, means prosecutors have a much heavier load of cases while low-level offenders can end up with a felony criminal conviction that makes them ineligible for some jobs.
But Howe says it’s the defendant’s responsibility to pursue diversion not the prosecutor’s.
“Some people have been critical, well, why don’t they do more? Well, diversion has to be something the person wants to do. It’s their constitutional rights. So that’s one of the things we’ve always pushed back as prosecutors. Well that’s fine and dandy, but the person has to want it,” he says. “That’s their decision. But we have a pretty good diversion program in our adult system.”
Although the county doesn’t have a mental health court, Howe says he’s hardly ignoring the challenge. Johnson County has a mental health diversion program for cases in which criminal conduct is driven by a serious mental illness.
“That diversion plan is then managed not by a traditional probation officer but instead by a mental health worker,” he says, adding that they are the guide for when a mental health diversion is merited.
In addition, he says, Johnson County has a mental health co-responder program.
Thomas says that the criteria for seeking a mental health diversion is so high that it’s rarely used. It means mental health defendants must be convicted of a felony before getting the treatment Howe touts.
The Johnson County Criminal Justice Advisory Council includes Howe, law enforcement representatives, community corrections personnel, mental health officials and many others. The program allows a mental health clinician to join law enforcement officers when they respond to a call where behavioral health could be a contributing factor. The idea, he says, is to de-escalate a situation to avoid involving police further and offer an individual a path to treatment.
The council, he says, has also worked to increase the amount of crisis intervention training offered to law enforcement officers, increased academy time on de-escalation strategies and how to work with mentally ill individuals.
“Johnson County, I think, has been one of the leaders in doing that. I’ve worked really hard in our leadership group to come up with some innovative ideas to prevent mentally ill people from being incarcerated,” he says.
Howe says his office also offers considerable resources to certain drug cases. The community corrections program has intense therapy and programming that allow participants to receive addiction counseling while maintaining their jobs. It offers many of the same, if not better, options than a drug court. Although he wouldn’t rule a drug court out, Howe believes their offerings do a better job at targeting resources to offenders.
“To me we are a step above what you could get with a drug court,” he says. “A drug court isn’t a panacea that’s going to solve all those issues.”
He’s confident that his office has adapted to changes in the criminal justice system and says criticisms about the penalties it seeks for minor crimes are way off base.
“This idea that we send a bunch of minor offenders to the penitentiary is absolutely false,” Howe says. “Fifteen years ago? Yeah, you’d probably be right, but I will say that Kansas has totally changed that. The judges don’t send people to jail willy-nilly.”
Often low-level offenders fail three to four times on probation, he says, before a judge will consider prison.
“At least here in Johnson County we have evolved way beyond that, where it’s no longer just sending everybody up,” he says. “All you have to do is go look at the Department of Corrections’ stats and it bears that out.”
When it comes down to it though, Howe points out that low-level crimes still have victims, and it’s his job to ensure victims see justice.
“It might not be one of the higher level crimes in Kansas, but in some of those instances they’re still a big deal to the victims,” he says.
IS COMMUNICATION AND DIALOGUE ENOUGH?
At the intersection of policing and racial justice, Howe says he has a good working relationship with law enforcement and would not back down from charging an officer who oversteps the law.
“I will tell you that our law enforcement agencies here don’t tolerate bad cops,” he says. Howe thinks Floyd’s death has highlighted the need to be sure justice is fair to all.
He says he continually reassesses issues of fairness, race and equity. He works collaboratively, maintaining regular dialogue with local NAACP leaders and beyond to ensure his office is responding to the needs of everyone in the community.
“As prosecutors, we rarely look at race. It’s just not a factor when we look at cases. Rarely do we even know when we take a first blush at a case,” he says.
He also regularly talks with police chiefs in Johnson County. During a public Zoom meeting this summer with law enforcement, Howe says, a community member who is Black complained he was constantly being stopped in Lenexa. The police chief there immediately offered to look at the body cam footage. The chief also urged residents to communicate directly with him, Howe says.
“Sometimes it’s insidious where people may not have realized they have a bias, but they are acting that way,” he says.
That kind of communication and dialogue is what makes it possible to solve problems related to racial bias, he says.
The Shawnee Mission Post reports that Howe also recently spoke at a rally that featured Mark and Patricia McCloskey, “a St. Louis couple who gained notoriety in June for brandishing guns at protesters who were marching by their home.” They face grand jury indictment of unlawful use of a weapon, among other charges, although Missouri’s governor has vowed to pardon them.
The Post quotes Howe saying that “what happened to them” after trying to defend their home, property and family, was “disgusting” and that if a similar situation happened in Johnson County, “the right people are going to get arrested.”
Thomas, whose parents emigrated from India, says he would be the first person of color elected Johnson County District Attorney if he wins. He says he will be accountable to all including minorities who feel singled out.
He also thinks the office could be more involved in the community.
“A lot of people don’t know what the DA does. They don’t know it’s an elected position. You hear about state House and state Senate, but for the majority of people who have no contact with the criminal justice system, they don’t necessarily know who or what the DA does,” he says.
That’s important because the office has the ability to be proactive during periods of unrest including after the death of George Floyd.
Thomas thinks the police are likely in the best position to address police brutality. But a district attorney has a crucial role.
“I think you’ve got a duty to drop what you’re doing and focus on the case. The community is owed an answer on whether or not you’re going to prosecute. And if you’re going to prosecute, why. If you’re not going to prosecute, you better explain your rationale and should be transparent with respect to the evidence you have,” Thomas says.
Thomas wants proactive discussions with the police chiefs. There should never be an officer with several misconduct reports who is allowed to linger on the police force, he says. What happens when an officer who has been accused of racial profiling ends up as the star witness in a murder case?
It leaves the veracity of their work in doubt.
“As district attorney you can reach out to every single police chief and talk about how we’re going to handle those cases and how we’re going to prosecute and how issues need to be addressed,” he says.
District attorneys need to be at the forefront of protecting the reputation of the criminal justice system, he says.
Thomas also contends that Howe’s office has, at times, been inconsistent in the information it’s willing to release to the public.
He cited Howe’s decision to release video footage of some officer-involved shootings but not the investigative report and every video in the shooting death of John Albers, a 17-year-old Overland Park teen. Albers was shot in January 2018 when police arrived at his home after friends reported he was suicidal based on social media. Albers was backing out of his driveway when an Overland Park officer without crisis intervention training approached and ordered him to stop. The officer, who said he feared for his life, fired and instantly killed Albers when he didn’t immediately stop.
The family ultimately settled a $2.3 million wrongful death lawsuit against the city of Overland Park. The Federal Bureau of Investigation launched a civil rights inquiry into the case last month.
“It’s got to be consistent. You can’t choose to release videos or exonerate law enforcement when it fits your bill. But when there’s questions about whether law enforcement acted accordingly, you don’t release that information,” he says.
Howe disagrees. He showed the family video of the actual events, he says. But not other videos that didn’t show anything.
Howe says he didn’t release the full investigative report because it contains sensitive information about Albers and others.
“I did a written finding as to the reasons for my decision. I spoke to the Albers family about my decision. And I fielded questions from the media.
“So to me, I guess, other than just releasing all these records so people, for voyeuristic reasons, want to know all this, I’ve tried to answer as many questions as possible and be public about it.”
Howe sees his office as one that’s continuing to deepen its connection with the community while also ensuring that more voices are heard.
“We have slowly started to get more diversity within our staff,” Howe says. “For me to understand somebody from a different background, if I’m working with somebody that gives me some added understanding of where they come from.”
In August, Kansas primary voters endorsed candidates emphasizing the need to advance significant changes to the criminal justice system. The district attorney races in Johnson and Shawnee counties could again test whether voters are pleased with the pace of change in those communities.
This time, though, there will be candidates from both parties and a higher level of voter participation. And there are signs that the political climate continues to evolve. Support for Black Lives Matter surged during the initial days of the Floyd protests, but has declined among white Americans since, and there’s been a backlash on the right side of the political spectrum against protests that sometimes turned violent and destructive.
The public’s perception of what a prosecutor’s job should include could be changing, too, and Nov. 3 might provide all parties with some insight.
A version of this article appears in the Fall 2020 issue of The Journal, a publication of the Kansas Leadership Center. To learn more about KLC, visit http://kansasleadershipcenter.org. Order your copy of the magazine at the KLC Store or subscribe to the print edition.
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