How Can Oklahoma Safely Reduce Incarceration?

Oklahoma’s incarceration rate has moved from first in the nation to third in the nation in the last five years. This reduction is due largely to voter-driven ballot initiatives that reduced drug possession from a felony to a misdemeanor, as well as the change of many low-level felony sentences. These changes occurred in the 2017 and 2018 legislative sessions and capitalized on the state’s movement toward reducing its number of individuals incarcerated. Many of these changes were based on recommendations from the 2016-2017 Justice Reform Task Force.  

Even with this positive momentum, Oklahoma still has a lot of work to do. For many parts of the state, there are no effective or robust alternatives to prison, nor are there adequate mental health or drug rehabilitation services. Money saved from the 2016 ballot initiative SQ781 would capture resources from the reduction in admissions to prison and forward them to the communities in the form of preventive services. Those savings have yet to be declared by the state.

Meanwhile, thousands of Oklahomans spend their lives behind prison walls, often for non-violent and low-level felonies. Most of the citizens agree that the bloated prison system is a problem, but are unsure how to proceed with reducing the population while maintaining public safety. 

This article discusses five proven ways that Oklahoma can safely reduce incarceration rates. These strategies have been successfully implemented in other states that have seen significant decreases in incarceration rates over a ten-year period. 

Most states that have had successful reductions in prison populations have also had drops in crime, Oklahoma being one. This further supports the concept that when justice-involved people have help to reintegrate, find jobs, and care for their families, recidivism drops.

1. Bipartisan State Leadership and Inter-Agency Bridge Building 

Michigan has been able to reduce their prison population by 20.1% (10,332 inmates) from 2006-2016 based largely on recommendations from the Michigan Task Force on Jail and Prison Overcrowding. Those recommendations included more robust reentry planning for inmates reentering society, the elimination of parole revocations for technical violations, and equipping county courts with prison diversion/community sentencing options.

Most prominently, Michigan passed sentence reforms in 2002 that retroactively removed mandatory minimum sentencing. This, coupled with improved parole guidelines, and changes to drug sentencing allowed Michigan to reduce its prison population by 1.8% from 2003 to 2004. As more reforms were implemented, higher reductions were realized. 

These reforms received significant support from the Governor of Michigan, as well as from the Michigan Department of Corrections (MDOC) and the Michigan legislature. MDOC currently has one of the most robust inmate reentry programs in the country, which has seen a 20% reduction in recidivism. All of these entities as well as the courts and prosecutors worked together to implement a better approach to criminal justice.

Governor Kevin Stitt, who took office in January 2017, campaigned on the promise of criminal justice reform. He presided over the largest commutation in US history (427 Oklahoma citizens were released), which was no small feat.  

To advance criminal justice reform efforts, Governor Stitt assembled a task force to study and make recommendations on criminal justice reform.  The Executive Order enabling the RESTORE task force specifically directed an analysis at how to reduce Oklahoma’s incarceration rate, reduce the recidivism rate, and enhance and establish diversion programs. The RESTORE Task Force report did not compile specific legislative changes or agency rule amendments that would impact the incarceration rate. RESTORE asked for more time to study the issue. The issue has been studied many times over since 2016, while other states have been successful implementing parole reform, revocation reform, and sentencing reform, all while Oklahoma has continued studying the issue.

Simultaneously, the legislature crafted legislation creating a task force under the direction of Attorney General Mike Hunter focused on sentencing reform and felony reclassification.   The Attorney General’s Criminal Justice Reclassification Council put out a draft of a sentencing reform matrix in a report earlier this year.  However, a cursory review of the draft matrix appears to add beds to the prison population, according to an analysis conducted by FWD.US. The statute that enables the Council requires that any recommendations keep prison beds neutral or decrease the population. Since COVID-19 began in March 2020, the Council has met once, and deferred any action. Their November meeting was canceled.

The promise of sweeping criminal justice reform in Oklahoma has gone largely unanswered and unaddressed. Oklahoma needs united and dedicated agency, legislative, and gubernatorial leadership if it is ever to truly reduce the prison population.

2. Rely on Data and Experts 

The field of criminal justice data and research has exploded since the early 2000s. Corrections and state mental health departments have used data to track and understand the impact of incarceration since data became widely available. However, prosecutors and law enforcement rarely use data or tracking to understand ways to reduce crime, and in many instances do not have the infrastructure available to collect certain data points.  Instead, they have focused largely on anecdotal, individual stories to justify long sentences and tough-on-crime policies. As incarceration and crime data has become more prevalent, the numbers have shown a troubling reality. 

While we know that America incarcerates more people than anywhere in the world, we have also learned that incarceration is largely ineffective as a way of deterring future crime. In addition, incarceration has devastating effects on communities. In fact, over-incarceration often leads communities to be less safe because prison can have a criminogenic effect when low-risk people are given long prison sentences.

States that have seen the most significant reductions in prison populations have used reliable data and criminal justice experts to capture the true cost of the criminal justice system and make informed recommendations to revamp the system.

In response to a lack of transparency and data in prosecution, Ex-Civil Rights Attorney, now elected District Attorney of Philadelphia Larry Krasner has prosecutors announce the cost to incarcerate a defendant if his office is recommending a prison sentence. He states that “fiscal responsibility is a justice issue,” and he believes discussing it in court is his duty as someone who has promised to battle mass incarceration.

Other states have used sentencing commissions to compile and analyze criminal justice data to make recommendations to improve the criminal justice system.  South Carolina reduced its prison population by 14% from 2008-2016. Their Senate Criminal Justice Task Force recognized that the problem was bigger than a partisan talking point. They recommended the establishment of a bi-partisan, inter-branch Sentencing Reform Commission. The Commission spent a year gathering data, performing analysis, as well as producing forecasts of costs and population models.  As a result of their work, the state has been able to close seven correctional facilities and reduce returns to prison by 57% (through 2016). 

Mississippi also relied on outside data to achieve their population reduction of 18% from 2008 through 2016. The Pew Charitable Trusts and the Crime & Justice Institute at Community Resources for Justice, through sponsorship of the federal Justice Reinvestment Initiative of the U.S. Bureau of Justice Assistance, provided assistance to Mississippi legislators and stakeholders who wanted to battle back against a 5% increase of the population in 2011-12. 

An outside perspective and dedicated number crunching are just two of the benefits of getting outside help to reform a state’s criminal code. These bodies have experience in other states and have fought (and won) policy battles that Oklahoma has yet to even begin to discuss.

3. Strengthen Community Reentry and Community Engagement

Common among all states that have had significant population reductions is a rededication to reentry and social services for those leaving prison. It is common sense that if the corrections budget shrinks, those resources must go to helping divert justice-involved populations from prions and assist those returning to their communities for long-term success. 

As mentioned above, Michigan’s DOC built a department dedicated to reentry services for those who are exiting the system. Rhode Island implemented significant justice reforms in the early ’00s, which led to strengthened, evidence-based reentry programming. These changes reduced returns to prison from 54% to 48% from 2004-2009. In 2011, Rhode Island Governor Lincoln Chaffee assembled the Governor’s Steering Committee on Reentry which helped the state apply for federal grants from the Department of Justice to improve reentry services. These efforts together contributed to a remarkable reduction in returns to prison of 37% through 2016. These numbers continue to improve as state-wide reentry contracts and special reentry grants are implemented. 

South Carolina specifically saw significant reductions in returns to prison in the age group of 17-25-year-olds. The recidivism rate for this age range dropped from 55% to between 21 and 30%. This was accomplished by a prison program that matches job skills to available work for those exiting the system. There is also an Intensive Aftercare Program that is in place only for young offenders. This program helps them by providing evidence-based programming that focuses on cognitive restructuring.

Reentry is one of the areas most often overlooked in movements to reduce the prison population but it is an important piece of the system. Preventing those who have reentered prison multiple times from returning requires challenging and systemic change, but it shows significant savings when the right interventions are used. 

4. Diversion from Prison as a First Priority, Not a Last Resort

While reentry is a big piece of the puzzle, there is new research that shows the importance of diversion from prison in the first place. Prison can have long term damaging effects on the individual and society at large that are difficult to overcome. It should be Oklahoma’s first priority to provide prison alternatives that allow people to keep their families together while under supervision or a structured alternative court program.

These programs are cheaper than prison—to incarcerate someone for a year, it costs taxpayers an average of $19,000. To send someone 

through an alternative drug court program is averaged at $5,000 per year. These programs already exist. Misdemeanor drug courts in Oklahoma County have seen great success with a structured sanctions model. The problem is that they are partially offender-funded. This closes off access to many people who could use the help but cannot afford to pay a program for monitoring, urinalysis tests, and phone calls (check-in calls must be made from a landline).

Each of the states that have undergone significant reforms has embraced diversion programs as an essential mechanism to reduce those incarcerated populations. The Pew Research Trust made several recommendations to South Carolina to strengthen community supervision as a mode of prison diversion. These recommendations allow for more structured sanctions when there is a parole violation so that the first resort is not always a return to prison.

Prison Diversion programs are able to employ evidence-based public health strategies rather than the overly punitive, costly interventions often employed while incarcerated. In Oklahoma, county drug courts and mental health courts are strongest in the urban centers. But there is a lot of variation in how these courts are employed across the state. A standard evidence-based sanctions model, risk and needs assessments to determine what resources are needed, and eliminating the offender-funded model would go a long way to making alternative courts a viable resource for Oklahomans in the court system.

5. Comprehensive Sentencing Reform 

During their reform efforts, South Carolina State Senator Gerald Malloy described South Carolina’s criminal laws as, “…a hodgepodge of laws enacted in recent decades, often as knee-jerk reactions to a particular local crime.” This description could not be more apt for Oklahoma.  Oklahoma’s criminal code is like a mutating monster. There are 683 felonies on the books, but 95% of the population is incarcerated for the same 50 felonies. Each of the felonies on the books has its own specific range, and often the statutes criminalize a wide range of conduct.

Most policy wonks will declare that a wide range of punishment plus a wide range of punished conduct can easily lead to an abuse of discretion in charging and sentencing. These types of statutes also confuse and muddy the deterrent impact of criminal statutes.

Oklahoma has little hope of significantly reducing our incarceration without widespread and data-supported sentencing reform. Twenty-two states have established sentencing commissions or agencies to monitor and review criminal sentencing. These bodies robustly study their states’ incarceration numbers, the number of felony filings per year, and the prison capacity numbers. With this information, the commissions make recommendations to their states’ legislatures every year for packages of laws to pass that keep the criminal code updated.

Considering Oklahoma’s politicization of criminal justice reform, and the struggle the state has with mass incarceration, Oklahoma should have sentencing oversight. While task forces and legislative champions are one thing, this type of reform needs focus and legitimization. To ignore reality and expect this problem to fix itself is naïve and negligent.  

Another example, Utah, established a sentencing commission which recommended that all felonies fit into three degrees: third-degree felonies are punishable up to five years, second-degree felonies are punishable up to fifteen years, and first degree felonies are punishable up to an indeterminate number over five years including life. This structure was passed into law and effectively addresses the complexity of their sentence code. This may not be a proper solution for Oklahoma, but without a dedicated body to prepare the data, and push for change, we will never know.