Adam R. Banner is founder of the Oklahoma Legal Group and a criminal defense attorney in Oklahoma City.
Governor Mary Fallin recently requested an audit of the Oklahoma Department of Corrections (DOC). I fully support a careful examination of issues that continue to haunt DOC, but as Governor Fallin and other state lawmakers assess the department, they need take an objective look at their own actions as well.
Fallin and the Legislature continue to create new requirements for our criminal process without any apparent consideration of how the legislation will work or be funded. For example, in 2012 lawmakers passed the Justice Reinvestment Initiative (JRI) in an effort to “ease the fiscal and social strains caused by Oklahoma’s prison overcrowding.” As a practicing criminal defense attorney, I can attest that at least one provision of the JRI, the “post-incarceration supervision” requirement, has thus far been a complete failure.
Post-incarceration supervision is meant to reduce recidivism and prison overcrowding by providing increased monitoring of offenders after they are released. Yet even before we created this new mandate, the probation and parole system was severely underfunded. There is inadequate oversight and infrastructure to carry out the supervision, and up until July, the requirement was not even being enforced.
The Oklahoma Court of Criminal Appeals recently amended the standard plea-paperwork we use to assure defendants are informed they will be subjected to the mandatory post-incaceration supervision for a minimum of nine months to one year. This may improve enforcement of JIR, but it’s still unlikely to reduce incarceration. Added supervision may even result in in more offenders being put back in prison for parole and probation violations.
In theory, they won’t be returned to the same jail they were just released from. According to the language of the law, the violator may serve a term of confinement of up to six months in an “intermediate revocation facility” that offers mental health services, drug treatment, and other programs to reintegrate offenders into society. However, we don’t have any intermediate revocation facilities yet, and we don’t have the funds to build them.
I’ve talked with many attorneys about this, both fellow defense lawyers and prosecutors, and no one has any idea how the process is supposed to play out. The prosecutors don’t know if they are supposed to file the sanctions, and if they are, neither side has any idea where the offenders are supposed to be placed. This makes it very difficult to explain to a defendant the repercussions of his or her guilty plea. The plea has to be knowingly and voluntarily entered, yet no one knows how the supervision is going to be implemented.
That’s just one example of why the big picture issues won’t be addressed by any Department of Corrections audit. The problem continues to be that the Legislature and Governor Fallin are writing hypothetical checks that their bank books won’t cover. DOC is forced to try to implement programs that it has no funds for, and the citizens of Oklahoma are caught in the middle.
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