Guiding Principles of Sentencing Reform

There are efforts underway to reform Oklahoma's sentencing code. Oklahoma currently has some of the longest sentences in the world, compared to other states as well as other countries. This is due to an outdated criminal code that oftentimes provides extremely long ranges of punishment.

Long sentence ranges, Oklahoma's use of sentencing enhancements on all felonies, and the 85% rule are the three factors that contribute most to Oklahoma's place as the number one incarcerator in the world.

Sentencing reform should be done carefully and thoughtfully. Tweaking sentencing in the wrong way could cause the state's incarceration rate to jump again. Having imprisonment rates go up again after decades of being number on in incarceration should not be the goal of any criminal justice reform.

OCJR has worked with partner organizations Oklahoma Policy Institute, Open Justice Oklahoma, Americans for Prosperity, Right on Crime, Oklahoma Council of Public Affairs, and the ACLU of Oklahoma to develop the following principles to consider during any meaningful sentencing reform discussions. These organizations represent interests across party lines and we all believe there is a data-driven approach that can work for everyone and save taxpayer dollars.

I. Sentence Lengths and Length of Stay in Prison Should Be Reduced - Oklahoma’s felony ranges are longer than other states and research shows that long sentences do not deter or prevent crime and do not serve the interests of justice.¹ On their own, long sentences also do not reduce recidivism or keep communities safer.² Felony sentence ranges should be reduced to closely mirror best practices and the criminal codes in states that have undergone comprehensive sentencing reform.³II. Sentence Ranges Should Not Be Enhanced Beyond the Range Maximum - Many other states have successfully right-sized sentencing by creating clear and appropriate felony ranges. If sentence ranges in Oklahoma are tailored appropriately, there is no need to enhance punishment for subsequent offenses beyond the range maximum. Instead, sentences should be internally modulated, taking into account mitigating and aggravating factors, including criminal history, to set a sentence within the established ranges.⁴III. Mandatory Minimum Sentences Should Be Eliminated - Mandatory minimum sentences significantly limit judicial discretion and are a major contributor to prison growth in the United States. A 2018 report found that Oklahoma would need to reduce its prison population by more than 12,000 people just to reach the national average rate of incarceration.⁵ While recent reforms have helped to reduce the prison population, more work must be done. Other states that have undergone sentencing reform, including Texas, have either completely eliminated mandatory minimum sentences or have very few. Thus, mandatory minimum sentences, if utilized at all, should only be applied to the most violent and severe crimes defined by the legislature, and should allow the application of judicial discretion when appropriate.⁶IV. People Should Be Able to Earn Time Toward Release - Mandatory time served percentages (such as 85% crimes) have dramatically increased the prison population. Creating and maintaining opportunities for people to earn time off their sentences by engaging in programming, educational classes, occupational training, and practicing prosocial behavior has positive outcomes. Requiring that someone serve a certain percentage of their sentence, across all felony classes and regardless of behavior, eliminates hope and diminishes the prison system’s ability to manage the incarcerated population.V. Prison Admissions Should Be Reduced by Prioritizing Diversion, Supervision, and Rehabilitation - Incarceration should only be used when there is no other way to keep the public safe. As of January 2019, Oklahoma’s imprisonment rate was 78% higher than the national average, while crime rates across the nation fell.⁸ Studies have shown that prison itself is criminogenic and does not correct behavior.⁹ People who pose a low risk to public safety and those convicted of non-violent offenses should be prioritized for diversion, treatment, supervision, and programming designed to provide safe and cost-effective rehabilitation as an alternative to incarceration.VI. The Criminal Code Should Be Cleaned Up - Any effort to reform Oklahoma’s felony classification system must involve an ongoing review of felony and misdemeanor offenses to determine which offenses could be safely declassified to misdemeanors or decriminalized in their entirety. A review must also include the removal of outdated felony offenses (e.g. “Adultery”) and the removal of offenses that could be charged under other existing felony statutes (e.g. “Compelling a woman to marriage” is “Kidnapping”). Additionally, Oklahoma’s criminal code houses multiple versions of the same crime that could be consolidated into one offense to eliminate duplication and provide clarity (e.g. Assault and Battery on a police officer, on a DHS worker, on a corrections officer, on a prison employee, etc.). Moreover, crimes in Oklahoma are defined broadly to encompass wide-ranging behaviors. Crime definitions should be narrowed or each statute should indicate degrees of harm paired with proportionate levels of punishment. Because sentencing is complex and detailed, reforms should be based on current sentencing data and best practices, and requires consistent and continuous oversight. VII. Sentencing Practices Should Be Monitored by a Diverse Oversight Body - Sentencing decisions have far reaching consequences for those involved in Oklahoma’s justice system. An oversight body should be composed of diverse stakeholders from all relevant parts of the system, including stakeholders who represent the interests of currently and formerly incarcerated people.¹⁰

1. Perry A.E. (2016) Sentencing and Deterrence. In: Weisburd D., Farrington D., Gill C. (eds) What Works in Crime Prevention and Rehabilitation. Springer Series on Evidence-Based Crime Policy. Springer, New York, NY. https://doi.org/10.1007/978-1-4939-3477-5_6 ; Andrew Leipold, Recidivism, Incapacitation, and Criminal Sentencing Policy, 3 U. St. Thomas L. J. 536 (2006).
2. Daniel Nagin, Francis Cullen & Cheryl Lero Jonson, Imprisonment and Reoffending, 38 Crime and Justice 115-200 (2009).
3. Both Utah and Minnesota have undergone sentencing reform that tackled their criminal code as a whole. A Brief from the Pew Charitable Trusts, “Utah’s 2015 Criminal Justice Reforms,” June 2015, https://www.pewtrusts.org/-/media/assets/2015/10/utahs2015criminaljusticereforms-(1).pdf ; Minnesota Sentencing Guidelines Commission, “2020 Report to the Legislature,” Jan 15, 2020, https://mn.gov/msgc-stat/documents/reports/2020/2020MinnSentencingGuidelinesCommReportLegislature.pdf.
4. For example, if a sentence range is 0-15 years, someone without a prior record can receive a sentence between 0 to 5 years but someone with one prior conviction can receive a sentence between 0 to 10 years.
5. Adam Luck, A Path Forward for Oklahoma. Commissioned by Oklahoma Department of Corrections 2018, http://doc.ok.gov/Websites/doc/images/Documents/A%20Path%20Forward%20for%20Oklahoma.pdf.
6. Crimes contained in 57 O.S. 571.
7. Oklahoma Justice Reform Task Force, Final Report, 25 (Feb 2017)  https://s3.amazonaws.com/content.newsok.com/documents/OJRTFFinalReport%20(1).pdf
8.  FBI Uniform Crime Data, 2000—2018 (both violent crimes and property crimes).
9. Jose Cid, “Is Imprisonment Criminogenic?: A Comparative Study of Recidivism Rates between Prison and Suspended Prison Sanctions” 6 European J. of Criminology 459-480 (Oct 7, 2009).
10. Model Penal Code: Sentencing § 8.01-8.09. For Oklahoma, the makeup should be as follows: The Chief Justice of Oklahoma Supreme Court, one judge from Oklahoma Court of Criminal Appeals, one trial court judges, two members of the legislature, director of DOC or representative, two prosecutors, two defense attorneys, one probation officer, one reentry worker, one academic who works in criminal justice research, two social service providers with experience in substance abuse, mental illness or traumatic experiences, three members of the public (one a victim of a felony crime, one formerly incarcerated inmate, and one at large.)