Category: Courts

‘Blood from stone’: Kansas Court of Appeals examines endless probation for poor people

by Sherman Smith, Kansas Reflector

Topeka — A defense attorney asked the Kansas Court of Appeals on Tuesday to reject the basis for subjecting a woman to a lifetime of probation because she can’t afford to pay restitution for her crimes.

The attorney’s argument, if successful, could have a far-reaching effect on a two-tiered system of justice in Kansas, in which those who can afford to pay court fines are held to a different standard than those who can’t.

His client, Edwanda Garrett, pleaded guilty in 2009 in Johnson County District Court to making false writings and in 2017 to writing bad checks. Her restitution involves deducting $50 from her paycheck each month for the next 40 years.

The case revolves around a patchwork set of state laws that limit probation to five years but allow probation to be extended indefinitely for failure to pay court costs, fines or restitution — and take away the right to vote while on probation.

Garrett has been on probation for 13 years, said defense attorney Kasper Schirer.

“There is no rational basis for believing that endless probation is going to be an effective tool to collect restitution payments,” Schirer said. “To be maybe more crass than I should be, you can’t squeeze blood from stone. No matter how much coercion you put on probationers who are indigent, you cannot make them part with money that they do not have.”

The three Kansas Court of Appeals judges assigned to hear the case challenged the prosecutor to explain the state’s interest in punishing someone for failing to make payments she can’t afford.

Shannon Grammel, deputy solicitor general for the Attorney General’s Office, said restitution and the threat of probation serve as a deterrent to crime.

“I think what’s important to remember, too, is Miss Garrett isn’t on probation because she can’t pay,” Grammel said. “She’s not on probation because she doesn’t have money. Her probation is part of the sentence of her crime. That’s also why she’s paying restitution.”

Judge Jacy Hurst admonished Grammel for being “disingenuous.”

“Does this statute actually result in people paying off more of their restitution?” Hurst asked.

Grammel pointed out that Garrett had already paid back $2,500 and continues to make payments. Hurst pointed out the cost of assigning a probation officer to the case for the next 40 years will cost more than $2,500.

Judge Gordon Atcheson also questioned whether extended probation really serves as a deterrent to crime.

“What’s the deterrence to Miss Garrett at this point — that she needs to keep paying for 40 years so she can vote in 2060 if she’s still alive?” Atcheson said.

Grammel said there is “an important distinction” between the fundamental right to vote and the right of felons to vote.

Schirer challenged state law on the basis of constitutional protections for due process, equal protection and the right to be free from debt-based imprisonment. The American Civil Liberties Union of Kansas, which has lobbied the Legislature for criminal justice reform along similar lines, filed a brief in support of Garrett.

Sharon Brett, legal director for the ACLU of Kansas, said the case could have widespread implications for an unknown number of people on probation throughout the state who are living below the poverty level.

People who are poor are subjected to longer and harsher punishments than people with financial means, Brett said.

“When we’re talking about indefinite probation, we’re not talking about some hands-off, docile system of oversight,” Brett said. “Probation is a system of surveillance and supervision. And it comes with a myriad of conditions and rules that you have to comply with. And if you slip up on any one of those conditions or rules, you could face incarceration.

“So what the state is talking about here is keeping people under that oppressive system of surveillance and supervision indefinitely, where any little issue could send them back to jail, only because they’re too poor to buy their freedom. That’s what we’re talking about.”

Brett said the Legislature should amend state law to require a judge to determine whether someone is willfully not making a payment or unable to pay. Lawmakers also should look at why they are disenfranchising people because they lack economic means, Brett said.

Kansas Reflector stories, www.kansasreflector.com, may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0.
See more at https://kansasreflector.com/2022/08/17/blood-from-stone-kansas-court-of-appeals-examines-endless-probation-for-poor-people/

Kansas civil action results in $764,000 restitution, penalty order against autopsy scammer

Parcells awaits sentencing on desecration, theft and wire fraud convictions

by Tim Carpenter and Sherman Smith, Kansas Reflector

Topeka — A Kansan without medical credentials who performed illegal autopsies was ordered by a judge to pay $510,000 in penalties and fees as well as $254,000 in restitution for violating consumer protection laws and other state statutes, the attorney general said Wednesday.

Attorney General Derek Schmidt initiated civil action against Shawn Parcells, 42, and three businesses operated by Parcells based on allegations he performed illegal autopsies.

Parcells didn’t have a degree or credentials in medicine or pathology, but gained national attention in 2014 by assisting, on behalf of the family of the deceased, in an autopsy of Michael Brown, a Black teenager killed by a police officer in Ferguson, Missouri. The shooting led to violent and peaceful protests.

In the course of the Kansas’ civil investigation and litigation, the Kansas Department of Health and Environment secured more than 1,700 biological samples collected by Parcells.

“Navigating the loss of a loved one can be difficult enough, but the additional harm created by Shawn Parcells has added to that difficulty,” said Schmidt, the Republican nominee for governor. “Though the resolution of this case does not undo that harm, our hope is that affected family members can now at least properly grieve.”

Parcells, who had lived in Topeka and Leawood, was convicted last year in Wabaunsee County on three counts of felony theft and three misdemeanor counts of criminal desecration for autopsy services. In May, he entered a guilty plea in federal court to one count of wire fraud.

The state’s civil case filed in 2019 resulted in Shawnee County District Court Judge Mary Christopher permanently banning Parcells and his three companies from operating in Kansas. The shuttered businesses are Parcells Forensic Pathology Group, ParCo-Parcells and Company and National Autopsy and Tissue Recovery Services.

Christopher’s order blocked Parcells from engaging in regulated businesses involved in the healing arts, including any COVID-related services.

The court required Parcells to pay $254,000 in restitution to 82 consumers related to private autopsy services.

“It is important to remember that behind all these case details are individuals and family members who have been put in unimaginable circumstances due to Parcells’s conduct,” Schmidt said.

In addition, the judge directed Parcells to pay a $200,000 penalty for violating the Kansas Consumer Protection Act. He was instructed to pay a $200,000 penalty for violating the Kansas False Claims Act in Wabaunsee County. He also was obligated to pay $49,600 in compensation to Wabaunsee County.

Parcells agreed to judgments that further mandated he pay $60,000 in investigative and receivership fees related to the state’s inquiry.

Eric Kjorlie, a Topeka attorney who has represented Parcells, said he was in custody of the U.S. Marshal’s office and held in a federal prison facility in Kansas pending a September sentencing date on the wire fraud charge. He was declared indigent by the U.S. District Court and has been represented by a federal public defender.

“Mr. Parcells has expressed his interest, at least to me, that his hope is that he will be able to obtain in the future his medical certifications and to then provide full and complete restitution ordered by the state and federal court,” Kjorlie said.

The state obtained a court order allowing Parcells’ samples to be cataloged and stored, but that receivership will be brought to a close. A notice on the attorney general’s website will provide families 30 days to submit a request to retrieve samples. For more information, contact the office’s victim services division at 785-291-3950.

Kansas Reflector stories, www.kansasreflector.com, may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0.
See more at https://kansasreflector.com/2022/08/10/kansas-civil-action-results-in-764000-restitution-penalty-order-against-autopsy-scammer/

Federal court rules immigration law violates First Amendment, in a win for Kansas workers

Two employees of a Lawrence, Kansas, business were convicted of conspiring to “encourage or induce” undocumented immigrants to reside in the U.S. But the 10th U.S. Circuit Court of Appeals found that the federal statute “criminalizes a substantial amount of constitutionally protected speech.”

by Dan Margolies, KCUR and Kansas News Service

A federal appeals court has found unconstitutional a statute making it a crime to encourage or induce a noncitizen to reside in the United States.

In a 2-1 decision on Wednesday, the 10th U.S. Circuit Court of Appeals upheld a lower court ruling finding the statute to be overbroad under the First Amendment.

The appeals court decision, written by Judge Nancy Moritz, found that the statute “criminalizes a substantial amount of constitutionally protected speech, creating a real danger that the statute will chill First Amendment expression.”

At least for now, the decision means that the law is not enforceable in the 10th Circuit, which covers Kansas, Oklahoma, Colorado, Utah, New Mexico and Wyoming.

Origins of the case

The case has stretched out over more than seven years. It sprung from the March 2015 indictment of a Lawrence, Kansas, drywall contractor and other defendants who were charged with money laundering, bank fraud and harboring undocumented workers.

The government claimed they were part of a scheme to convert more than $13 million in payroll checks into cash, in order to pay crews of undocumented workers installing drywall in the Kansas City metropolitan area.

Several defendants pleaded guilty in return for light sentences. But two construction crew leaders, Jose Felipe Hernandez-Calvillo and Mauro Papalotzi, chose to go to trial. A jury of 12 women found them guilty of conspiring to encourage or induce someone to unlawfully reside in the U.S.

U.S. District Judge Carlos Murguia, however, threw out their convictions after agreeing with their argument that the statute was unconstitutional on its face because it prohibited “a substantial amount” of protected speech.

In a fortuitous bit of timing, the Ninth U.S. Circuit Court of Appeals found the same statute unconstitutional around the same time. (The U.S. Supreme Court in 2020 reversed the Ninth Circuit decision on procedural grounds.)

Although decisions by the Ninth Circuit are not binding on federal judges in Kansas, Murguia said he found the Ninth Circuit’s decision persuasive.

“We had filed a pretrial motion saying that the statute was unconstitutional and vague, but since no circuit had spoken out yet, the judge denied our motion,” said Kansas City lawyer Robert Calbi, who represented Papalotzi.

“But now that the Ninth Circuit had made a decision, we had some circuit backing and we filed a motion to dismiss the indictment based on that. And the judge agreed with us and dismissed the indictment.”

The U.S. Attorney’s office, which prosecuted the case, could ask all of the judges on the 10th Circuit to rehear the matter. Alternatively, it could seek review before the U.S. Supreme Court.

A spokeswoman for the U.S. Attorney’s office in Kansas said it would have no comment.

First Amendment concerns

The statute in question is part of the Immigration and Nationality Act that was passed 70 years ago. It authorizes up to five years in prison for anyone who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.”

The statute tacks on another five years to the sentence if the defendant acted “for the purpose of commercial advantage or private financial gain.”

The Trump administration prosecuted numerous individuals under the law, although the defendants in this case were indicted before Trump became president.

At issue in the 10th Circuit case was whether Congress intended the terms “encourage” or “induce” to be read narrowly as criminal solicitation, or more broadly, in which case the statute would potentially criminalize protected speech under the First Amendment.

Like the Ninth Circuit, the 10th Circuit found that Congress intended the terms to be read broadly. As such, it said, the terms covered a substantial amount of protected speech.

For example, Moritz wrote, the statute would make it a crime to tell a family member who overstayed their visa, “I encourage you to reside in the United States.”

Likewise, it would make it a crime to tell a tourist that she is unlikely to face serious consequences if she overstays her tourist visa. And it would make it a crime to inform noncitizens about social services that might be available to them.

Similarly, Moritz wrote, an immigration attorney could face prosecution under the statute for providing legal advice to noncitizens.

Finally, she noted that the statute mostly prohibited conduct already made criminal by other statutes.

“We are therefore not convinced that invalidating [the statute] would deprive the government of a critical enforcement tool or leave wide swaths of criminal conduct unpunished,” Moritz wrote.

The Kansas News Service is a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy.
Kansas News Service stories and photos may be republished by news media at no cost with proper attribution and a link to ksnewsservice.org.
See more at https://www.kcur.org/news/2022-07-13/federal-court-rules-immigration-law-violates-first-amendment-in-a-win-for-kansas-workers