7 Things to Look for this Legislative Session
The Oklahoma Legislative Session, in accordance with Article 5, Section 26, of the Oklahoma Constitution, begins at noon on the first Monday in February and ends during the last Friday in May. This means the 2022 legislative session begins on February 7, 2022, a mere few weeks ahead. These early days of session are crucial for a bill gaining momentum because the majority of bills never make it out of committee. Accordingly, it is important for the public to engage with legislators during these early moments in order for legislators to feel pressure from their constituents, and for our democracy to function at its peak efficiency. In light of this upcoming period of legislative action, here are seven reforms to keep on eye on, track, and apply pressure on your legislators for, in the criminal justice sphere.
Criminal Justice Data Collection
A bill that introduces a system of robust data collection from a variety of sources within the criminal justice sphere, including Department of Corrections, County Jails, District Courts, OIDS/Public Defenders, and District Attorneys, among others, would allow policy makers to identify problem areas within the system and work to correct them. Better data informs better policy. Currently the data needed to accomplish informed policy is siloed among various departments in agencies. It is not stored in a uniform manner across agencies and is exceedingly difficult to access.
Collecting this disparate data into a centralized source would open the door for policy actions in a variety of areas and could spark ideas for necessary reforms. It could also highlight certain counties or areas within the system that are already working, and expand those as needed, as well as uncover potential subconscious biases, and the effect that new reforms would have on racial, ethnic, and religious groups. It is impossible to make informed policy decisions without the necessary data to inform those decisions. Instead of focusing on left or right, or liberal or conservative, Oklahoma should be focused on data driven solutions that maximize the criminal justice system for all parties. Such a robust data collection has already been pursued in Florida, Colorado, Virginia, and Utah, to name a few. Oklahoma can now follow suit and once again be on the cutting edge of data-based and data-driven policy, while catching up to the technological advances in data collection employed in other states.
Oklahoma ranks 3rd in the nation in the incarceration rate but ranks 16th in the nation in prison admissions, with that gap representing excessive sentencing. For example, Oklahomans serve nearly twice as long for common property crimes including fraud, burglary, motor vehicle theft, and larceny as compared to the national average. Oklahomans also serve longer sentences for drug crimess as well.
Sentencing reform would lower the maximum sentences imposed for all but the most serious offenses, while simultaneously lowering the maximum fines that can be assessed for all crimes. These measures would not affect those violent crimes that fall under the 85% rule. This reform would lower Oklahoma’s incarceration rate to a level commensurate with its prison admission ranking, and save taxpayer money on housing those incarcerated. For instance, the average cost of incarcerating someone in the state’s prisons ranges from $20,947 to $39,482 depending on the security level of the facility. Any reduction in incarceration would save that money in the State Government’s coffers. Utah enacted sentencing reform that is projected to save the state over 500 million dollars once fully operational.
Studies have shown that longer sentences do not increase public safety or decrease recidivism. Criminal behavior is most effectively reduced through the certainty of punishment rather than the severity of punishment, coupled with services to address the root causes of crime (education, medical treatment, job training).
Finally, the current sentencing structure and related incarceration rate removes money from local economies -many of which are rural communities. Oklahoma families lose, on average, $27,637 a year due to a loved one being incarcerated. Shorter sentences would allow those individuals to re-enter society and redistribute that money across local, rural, economies. Further, long sentences destabilize families, causing Adverse Childhood Experiences (ACEs) for children. These ACEs are directly associated with adult criminality, creating a familial cycle of criminality and incarceration. Additionally, with 33% of families going into debt due to an incarcerated loved one,, buying power within local economies, most especially rural, is negatively impacted.
The current Oklahoma Discovery laws provide insufficient deadlines to allow for appropriate time to review evidence before a trial. These deadlines place further burdens on our already over-taxed public defenders and prosecutors. Discovery Reform would make discovery automatic, clarify the rules surrounding materials that need to be disclosed, require a certificate of compliance and lengthen the time that materials must be disclosed by both the defendant and the prosecution before trial. The current system provides defendants and prosecutors only ten days before trial for evidentiary production. Juries tend to assume that they have heard and been shown all the evidence available. They assume the case has been fully investigated by both sides. If, for example, there is no meaningful impeachment of prosecution witnesses, they assume it is because no impeachment evidence exists. If both sides do not have equal access to the evidence then the Jury, as the final arbitrator of fact, cannot effectively determine the facts. This leads to longer trials and wrongful convictions as well as exonerations. Full and timely open file discovery and a subsequently robust and comprehensive defense investigation of the prosecution’s case, are the practical, every-day pillars of our adversarial criminal legal system.
According to the National Registry of Exonerations, Oklahoma has had 39 exonerations since 1989 with 18 involving a failure to disclose exculpatory evidence. These 18 wrongful convictions cost taxpayers over 3 million in prison costs, and these 18 individuals lost 200 combined years of their lives. Discovery Reform would simultaneously alleviate administrative burdens on the court, the District Attorney’s Office, and the Public Defender Office/OIDS. Supplying both parties with timely evidence allows for more effective and efficient arguments, hearings, and discovery dispute determinations, as well as promoting efficient case resolution and a reduction in wrongful convictions and exonerations.
The proposed Discovery Reform legislation specifically allows the Court to take into account, “substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment, resulting from such disclosure, which outweighs any usefulness to the defense,” when considering any potential disclosure. Therefore, any change in the discovery practices of the state will not increase the risk of witness intimidation.
Earned Time Credits
SB336, would allow a felony offender to earn thirty (30) days of discharge credits for every calendar month in which that person is in compliance with supervision requirements. These credits are to be applied toward a reduction of the probation supervision period ordered by the Court. So in other words, for every month of compliance with probation or parole, the probationer or parolee would receive thirty days off of his or her sentence, effectively incentivizing those individuals to successfully receive treatment and pay their debt to society in accordance with their plan. This proposed law would not apply to those convicted of violent 85% crimes or domestic violence crimes.
In Oklahoma, 1 in 72 adults is currently under some form of community supervision, which requires extensive tax-payor resources to fund. Missouri adopted a similar law in 2012, and the results were astounding. From 2012 to 2015 Missouri’s supervised population fell 18%, and by 2019, only 1 in 110 adults were on some form of community supervision. Further, Probation and Parole Officers in Missouri averaged 70 supervisees in 2012 and 59 supervisees in 2015, with no significant increase in recidivism between those receiving earned supervision credits and those who did not.
This law would act on a dual front, simultaneously decreasing the burden on overworked probation and parole officers and saving valuable governmental resources, while also ensuring that those individuals who are currently on community supervision have a positive incentive to pay their debt to society and seek treatment for mental health or addiction as necessary. This two- pronged solution would significantly decrease the workload on certain government employees while nudging those on supervision to successfully complete their programs. All of which would decrease the incarceration rate and increase public safety.
Possession with Intent to Distribute Reform
Possession with Intent to Distribute (PWID) Reform would clarify the factors that are considered in determining whether a person has intent to distribute controlled dangerous substances – a felony with substantial penalties. Currently, the Oklahoma statute is vague and does not include weights, or any other factors to consider when determining the alleged offender’s intent with the controlled substance. The proposed reform would delineate a weight requirement and other certain criteria that must be present for the charge – including a method to weigh the controlled substances, the presence of a firearm, the presence of other controlled substances, or having the controlled substances packaged in a manner that would facilitate distribution.
After the passage of State Question 780, simple possession of a controlled substance became a misdemeanor in Oklahoma, and prison admissions for simple possession began to decline. However, prison admissions for Possession with Intent to Distribute began to rise at a near identical rate, indicating that these charges are interchangeable without a clear statutory basis to direct the factual findings by the Court or Jury. These individuals charged with PWID instead of simple possession are facing felonies and prison time for substance abuse and addiction issues, in direct contravention of State Question 780. PWID Reform would ensure that there is a clear factual basis for determining whether a person actually has intent to distribute, or is just a possessor of the controlled substance – calling for a misdemeanor and push for treatment.
Fines and Fees Reform
A proposed law would widen the Court’s discretion to modify or waive the fines and fees imposed upon an individual after conviction, based upon that individual’s ability to pay. Oklahoma’s current funding model relies on the collection of fines and fees in order to help fund District Courts and District Attorney offices. These governmental units are fundamental to our successful State function and deserve a reliable budget source. Five percent of funding came from State general revenue in 2016, which is down from 44% in 2003. Oklahoma Courts and District Attorney offices rely on fines and fees from criminal defendants in order to keep the lights on and employees paid, which poses an inherent conflict of interest as well as a variable funding mechanism for these governmental entities to function. Additionally, here is currently no clear mechanism for determining if a defendant can even pay the assessed fines and fees, leading to terrible collection rates. In fact, from 2012 until 2018, there remains 680 million dollars in outstanding court debt, which is 680 million dollars that the State did not collect and a 680 million dollar-burden strapped to the backs of people trying to re-enter society successfully.
This funding system creates perverse incentives to assess higher than necessary fines and fees in order to secure funding to keep the Court system running and in some counties costs more money to collect outstanding fines and fees than the fines and fees themselves. Further, there has been a firmly established link between poverty and violent crime, and imposing burdensome fines and fees effectively sentences defendants to poverty. This decreases public safety and increases the crime rate. Meanwhile, the unemployment rate for justice involved Oklahoman’s is 5 times higher than the state average, so these fines and fees are imposed on one of the least financially stable groups in the state, which further increases the likelihood of recidivism.
Fines and fees reform would ensure that the fines and fees assessed by the Court are a reflection of the individual’s ability to pay. This would help stabilize the variable funding model by ensuring that the Courts receive the money assessed, while removing burdensome fines and fees from those individuals struggling financially. All of this would increase public safety by reducing poverty, which has a correlative effect on both violent and property crimes.
An expungement is the process by which a record of criminal conviction is destroyed or sealed from state or federal record. An expungement order directs the court to treat the criminal conviction as if it had never occurred, essentially removing it from a defendant’s criminal record. In Oklahoma, currently 94% of people who already qualify are not receiving expungements. This means that expungement reform could benefit over 100,000 Oklahomans immediately.
Expungement Reform would make expungement automatic without altering the existing eligibility criteria. This would allow those qualifying Oklahoman’s to receive an expungement without the unnecessary cost, time and delay afforded by the current system. It would alleviate the administrative burden on the Courts and related actors in deciding expungement petitions, freeing up man-power and resources to hear substantive criminal legal issues. Expungement Reform would also stimulate local, rural, communities and economies by allowing those with criminal records to obtain employment and contribute to society. For example, 9 out of 10 employers, 4 out of 5 landlords, and 3 out of 5 colleges nationwide, use a background check to screen applicant criminal records, meaning even a minor criminal record can have long lasting financial consequences for not only the individual but for their local community as a whole. Personal income of those who have access to expungement increases by 25%, leading to more discretionary income being recirculated within local communities.
Automatic expungement is a one time cost to the government in sealing or destroying the records, but the benefits, in the form of increased tax revenue and decreased spending on public assistance, accumulate over time. A Stanford University study estimated that the benefits of expungement outweigh costs by about $5,800 per person in one year. In fact, shutting people out of the labor market due to a criminal conviction costs the United States economy an estimated 87 billion dollars in lost GDP per year and if not for mass incarceration and the financial difficulties of having a criminal record, the nation’s poverty rate would have dropped by 20% from 1980 to 2004, saving millions in public assistance costs. Expungement Reform would ease the administrative burden on the court system while allowing those with criminal records to more readily obtain housing, employment, and education, which in turn, creates more revenue for the state in tax collections and decreased public assistance.