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As Criminal Justice Laws Take Effect, Uncertainty Surrounds Bigger Changes

Jun 29, 2017

Criminal justice measures approved by Oklahoma voters in November will take effect later this week, testing predictions that fewer people will go to prison and taxpayers will ultimately save millions of dollars.

But even before those laws kick in July 1, questions swirl as to whether they will be undermined in part by local prosecutors or a lack of funds and won’t fully achieve their stated purpose. Even if they succeed – by keeping thousands of nonviolent offenders from becoming felons – advocates for change acknowledge it won’t be enough to halt the state’s rising tide of incarceration.

Despite passage of State Questions 780 and 781 last year, “this (incarceration) growth is expected to continue, costing the state over $1.9 billion in the next 10 years unless further changes are made,” said a study by the Oklahoma Justice Reform Task Force, assembled by Gov. Mary Fallin.

SQ 780 will make simple possession of any drug and certain property crimes misdemeanors, with the goal of imprisoning fewer people. SQ 781 will use any savings from that reduction to fund mental health and substance abuse treatment programs.

To expand the effort, as the task force recommended, a dozen additional bills aimed at reducing incarceration were introduced in the last legislative session. Only three passed. The most consequential ones were bottled up in a House conference committee. Accusations flew between Rep. Scott Biggs, R-Chickasha, committee chairman, and Fallin and other supporters of the bills.

The result is that after five years of intensive, bipartisan advocacy for change in Oklahoma’s criminal justice system, a sweeping overhaul hangs in the balance.

Will Prosecutors Buy In?

One thing is clear: Simple possession of drugs, including repeat offenses, will no longer be a felony after July 1. The effect the downgrade will have is murkier.

Some observers warn that district attorneys could circumvent the law by charging more people with possession of drugs with intent to distribute – a felony even in cases with a small amount of drugs. It is based on the circumstances surrounding the arrest, such as the presence of scales or other paraphernalia, that indicate the person intended to sell or share the drugs.

“If that number rises markedly, it may be evidence that prosecutors are changing their strategy in order to keep charging felonies to drug offenders,” said Ryan Gentzler, an analyst for the Oklahoma Policy Institute, a left-leaning research group.

If prosecutors defer to the new laws, the number of misdemeanor drug possession filings could spike. Some county sheriffs and district attorneys say growth in these prosecutions could put a strain on counties because misdemeanor offenses only carry fines and time in county jails, not prison sentences.

Gentzler predicted “obstacles” during the first year as the justice system adapts.

“There will be an increase in the demand for treatment, and perhaps more people will be sentenced to short jail terms in lieu of prison sentences if that treatment isn’t available,” he said.

However, he said, “I think the main accomplishment of the state question push was to show the broad support for criminal justice reform across the state and reassure legislators that they won’t be punished for voting for reform bills.”

Opponents argue that the state is moving too fast with changes, a shortage of funds exists and public safety could be jeopardized.

Paying for Justice Changes

SQ 781 is supposed to help pay for increased substance abuse and mental health treatment, but it will be at least a year before it generates any money – and the amount of money is unclear.

The Office of Management and Enterprise Services is required to make an annual estimate of the amount of money saved from reduced incarceration. The Legislature then must place the money in a special account and disperse it to counties based on population. The agency isn’t required to report its first estimate until July 31, 2018, and is developing its methodology for tracking savings, but it’s too early to know how it will look, spokesman Michael Baker said.

Using historical counts of inmates serving crimes that are covered by State Questions 780 and 781 and the daily per-person cost of incarceration ($32 to $52), Oklahoma Policy Institute estimated that SQ 781 would save taxpayers $45 million over six years. However, such estimates could prove inaccurate because they are based on assumptions about prosecutors’ decisions and the number of future offenders. In California, voters passed similar reforms in 2014, yet estimates of annual net savings have been $100 million to $200 million lower than originally projected. Texas, however, implemented programs such as diversion, intermediate sanctions and drug treatment and, according to some estimates, saved $3 billion, in large part because it avoided building new prisons and closed three of them.

Oklahoma Watch is a nonprofit organization that produces in-depth and investigative journalism on important public-policy issues facing the state. More Oklahoma Watch content can be found at www.oklahomawatch.org

Former House Speaker Kris Steele, who led the effort for changes, predicted a roughly 3,200-person decrease in the number of prisoners over the next 10 years as a result of the state questions. Yet even with the softened penalties, the prison population still is expected to grow by more than 7,000 people over the next decade, he said. As of June 26, Oklahoma had 28,247 incarcerated inmates and others awaiting transfer to prisons from jails, the state Corrections Department reported.

“Ultimately, we would see savings by avoiding to have to invest in additional prisons,” Steele said.

Resistance to Bills

In February, after meeting for six months, Fallin’s Oklahoma Justice Reform Task Force issued a report with 27 recommendations aimed at reducing the state’s prison population and saving money.

Parts of the study echoed recommendations made by an Oklahoma City Chamber criminal justice task force in a December 2016 report. Between the two groups, the members and “endorsers” included some of the state’s top business, political, civic, nonprofit and criminal justice leaders and groups: the conservative Oklahoma Council of Public Affairs, Corrections Director Joe Allbaugh, Baptist General Convention of Oklahoma President Hance Dilbeck, former Gov. Brad Henry, and business leaders Clayton Bennett, Larry Nichols, Harold Hamm, Tom Ward and Gene Rainbolt, among others.

But that lineup didn’t clear a path at the Capitol.

Of the dozen bills recommended by Fallin’s task force, three passed and were signed into law. Eight didn’t make it out of Biggs’ conference committee but can be considered next year. One is dead.

The four bills that Biggs opposed the most – Senate bills 649 and 689 and House Bills 2281 and 2286 – would have, among other things, reduced sentences for certain crimes for first-time and repeat offenders; raised the threshold for grand larceny from $500 to $1,000, and reduced the amount of time some offenders must serve before becoming eligible for parole or expungement.

Biggs said he would have been willing to negotiate on bills in his committee, but no one reached out to him directly. Advocates instead used press releases and social media, he said.

“The governor, for all she claimed to be for this package, never once talked to me about these bills,” Biggs said.

In an interview, Fallin said her staff met with Biggs repeatedly over months, including in mid-May. She said she doesn’t necessarily contact individual legislators about bills, but her staff is in regular discussions with them.

“There was a tremendous amount of interaction between our office and Representative Biggs,” she said.

Fallin said she also asked House Speaker Charles McCall “probably close to five times” to reassign criminal justice bills away from Biggs’ conference committee, but McCall was noncommittal.

“Even up until probably the last two nights before session was over, I was still asking them to at least give it to the floor and just have a vote,” Fallin said.

McCall and Biggs’ inaction left the bills’ supporters dumbfounded. They questioned how a single state representative could block changes that the House and Senate had already voted to approve in some form and that most voters likely supported, given their  approval of state questions.

Steele, who runs an Oklahoma City nonprofit that works with ex-offenders, said he tried to meet with McCall and Biggs, but Biggs never responded and McCall’s office said he was too busy.

McCall “is responsible for the demise of the bills this session,” Steele said.

Steele added that Biggs and other skeptical lawmakers were afraid of being seen as soft on crime and were swayed by district attorneys’ arguments.

Rep. Greg Babinec, R-Cushing, who served on Biggs’ committees and sponsored a bill to allow medically frail inmates to be released, said McCall asked him to help keep the reform bills alive but otherwise didn’t intervene or discuss them.

“I think the speaker wants to see them enacted. … I fully expect for these bills to be alive and be presented on the floor next session,” Babinec said.

McCall, R-Atoka, hasn’t said anything publicly about his involvement in the bills’ final days. His spokesman said he was out of state and unable to comment. In a June 2 press release, McCall did announce an interim study on criminal justice reform to be held later this year.

“I certainly support the goals of criminal justice reform, but several members wanted to ensure there were no unintended consequences resulting from a handful of the bills that were introduced this year,” McCall said. “By completing this work next session, we are going to do in two years what it took Texas six years to complete.”

Fallin said she is willing to wait another year if that’s what it takes, but questions whether the interim study will add much to understanding the issue.

Biggs denied that he was motivated by political aspirations. The bills weren’t victim-friendly, he said, and as a former prosecutor, he couldn’t go along with them.

“We need to be diligent and we need to fix the issues with the bills before we pass them,” he said.

The bills’ chances of passage next year will be complicated by the fact that election campaigning will be underway.

Sticking Point in Justice Debate: What Is a Violent Crime?

Is desecration of the American flag a violent crime? What about putting others at risk while fleeing a police officer? Stealing copper? Child abandonment?

Rep. Scott Biggs, R-Chickasha, said his disagreement with criminal justice bills during the session was based on how they distinguished between violent and nonviolent crimes. Offenses like copper theft and flag desecration were among the 34 crimes that Biggs contended were essentially violent and shouldn’t be eligible for lighter penalties. He emphasized that issue and the bills’ treatment of repeat offenders in requesting an interim study.

“You want to say domestic abuse by strangulation is nonviolent? Talk to a domestic abuse victim,” he said in an interview, citing an example from his list.

Supporters of the justice bills have said the measures would lighten punishments for offenders who commit nonviolent crimes. The bills don’t define violent or nonviolent, instead referring to a portion of state law – Section 571 of Title 57 – that lists 51 offenses under the label “violent crime.” Those include first-degree murder, assault and battery, extortion, rape, child abuse, robbery, child pornography and others. Most involve actions that cause, intend to cause or create risk of causing physical harm to victims. Some crimes, such as assault, could include   offenses such as domestic abuse.

Most of the crimes not listed in Section 571, and those that require serving 85 percent of a sentence (spelled out in a different statute), would have been eligible for less prison time and earlier parole consideration under the bills. Biggs said the leniency also applied to the 34 offenses, which were drawn from a different section of state law that lists a wide range of criminal acts, from bribery and nepotism to murder and kidnapping.

In an effort to meet his concerns, supporters amended legislation – Senate Bill 649, which would reduce extra prison time that nonviolent repeat offenders can receive – to include most of the 34 offenses. Those included desecration of the flag or a human corpse, domestic abuse, partial-birth abortion, cruelty to animals, aggravated assault, human trafficking, possession of a sawed-off shotgun, incest, child abandonment, indecent exposure and identity theft.

That wasn’t enough for Biggs.

“They gave us a partial list in one bill without addressing the root of the problem,” Biggs said. “(Gov. Mary Fallin) refused to address the fundamental flaw in this package of bills. … She was unwilling to even look at these bills from a victim’s point of view, and that’s sad but not surprising.”

Fallin disagreed, saying her office worked with Biggs and other critics to address their concerns, as demonstrated by adding the list of crimes.

“We did exactly what he said needed to be done and tried to accommodate him, and yet for some reason the bills still were held up,” she said.

2017 Criminal Justice Bills

Signed by Governor

Senate Bill 603: Requires all offenders receive a validated risk and needs assessment that will educate providers on programs available to offenders; also mandates that the Department of Corrections create an individualized case plan for each inmates.

SB 604: Provides training for law enforcement related to domestic violence victim safety during the pretrial stage.

House Bill 2284: Provides training for public defenders, district attorneys and judges that will cover substance abuse, behavioral health, and impact and dynamics of domestic violence.

Failed to Advance but Still Alive

HB 2281: Would decrease the number of people incarcerated for low-value property crimes by making the theft of items valued at less than $1,000 a misdemeanor rather than a felony; is similar to State Question 780 but would include more crimes.

HB 2286: Would require development of an administrative parole process and establish training and eligibility requirements for Pardon and Parole Board members; also would make nonviolent offenders eligible for parole after serving one-fourth of their sentence but prohibit sentences going below the one-fourth threshold through earned credits.

SB 649: Would reduce the amount of extra prison time that nonviolent criminals can receive for being repeat offenders.

SB 689: Would allow judges and prosecutors more options in diverting people from prison to treatment and supervision programs. Would reduce fines and fees for some offenders.

SB 650:  Would lower the amount of time a nonviolent offender must wait to seek an expungement from 15 years to seven years.

SB 786: Would reduce the minimum sentence for second-degree burglary and create a third degree covering burglary of an automobile.

SB 793: Would create the Corrections and Criminal Justice Oversight Task Force to track implementation and assess outcomes from recommendations made by Oklahoma Justice Reform Task Force. The 17-member task force is to prepare and submit an annual report no later than the first day of the second full week of each regular session of the Legislature.

SB 609: Would require the attorney general to adopt and promulgate rules to create a voluntary certification program for victim assistance professionals based on guidelines from the National Advocate Credentialing Program Consortium.

Died in Conference Committee

HB 2290: Would expand the parameters of drug-court program objectives.

Oklahoma Watch is a nonprofit, nonpartisan media organization that produces in-depth and investigative content on public-policy issues facing the state. For more Oklahoma Watch content, go to oklahomawatch.org.