Photo by Kim Daram used under a Creative Commons License.

In an earlier post, I discussed how implementation of the criminal justice reforms passed in 2011 was not going as hoped. That post concluded:

The justice reinvestment bill was always only a first step of many desperately needed reforms. Its significance was not just in the changes made by the law itself, but as the sign that Oklahoma leaders would bring a smarter perspective to criminal justice policy going forward. But with the departure of the most committed champions of reform, lawmakers are back to being more interested in posturing against criminals than considering even the most moderate solutions.

This post examines why the justice reinvestment initiative (JRI) was only a start and what reforms still need to happen to achieve a significant drop in the cost and level of incarceration in Oklahoma.

First, we should remind ourselves of what the JRI bill actually did and how it’s been implemented:

JRI Reform

How It’s Been Implemented

Establish “intermediate revocation facilities” (IRF) for alternative sentencing of drug court and probation violators. Provide judges and district attorneys an option to sentence those who violate the terms of a drug court program or probation to 6 months at an IRF rather than sending them back to prison. The Department of Corrections has not been funded to build new facilities for this purpose. Some funds were budgeted to provide drug and mental health treatment for IRF offenders at existing facilities, but these funds have not been used because judges and district attorneys are making little use of the new option.
Require a probation period of at least 9-months to be included with any sentence and develop a sentencing matrix for probation violations. This provision was intended to reduce recidivism by expanding supervision of ex-felons just out of prison. However, the Department of Corrections has not been funded to pay for that increased supervision. In fact, the number of probation and parole officers employed by the Department has dropped 20 percent since 2008 and is at its lowest level in at least a decade. The end result may be the opposite of what the law intends – with growing caseloads and too few probation officers, meaningful supervision of offenders will actually decrease.
Reduce the sentence for a second drug conviction occurring more than ten years after a previous conviction to one to five years, instead of two to ten years. Data on recidivism typically only covers those who return to prison within three years of release, so it does not tell us how many are affected by this change. But because recidivism decreases dramatically with age and with longer times out of prison, it is safe to say that the number is tiny.
Require assessment of anyone convicted of a felony for mental health and substance abuse problems. The Department of Mental Health and Substance Abuse Services received additional funding this year to upgrade computer systems related to this assessment. If courts utilize this information to shift offenders into treatment instead of incarceration, and if Oklahoma continues to boost investments to make that treatment available, then it could have a long-term impact.
Extend the eligibility for sentence modification from 12 to 24 months after conviction. This reform was in response to long waiting lists that often make it impossible for offenders to get into treatment programs within 12 months of sentencing. However, with the Department of Corrections severely understaffed and set to receiving flat funding, it is highly unlikely that the waiting lists will get any shorter.
Create the Justice Reinvestment Grant Program for law enforcement agencies to develop new strategies to combat violent crime. Attorney General Scott Pruitt has so far declined to award any grant funds.

The above chart shows that JRI reforms have been implemented in some ways and hit roadblocks in others. But even if all of the provisions were funded and enthusiastically enforced, the effect on incarceration rates would be limited. That’s because the law made no changes to the single biggest driver of Oklahoma’s sky high incarceration rates: we send an unusually high number of first-time offenders to prison, and we sentence them to unusually long terms.

The justice reinvestment law focused on reducing recidivism, but it might surprise many to know that Oklahoma already has one of the lowest recidivism rates in the nation. A 2011 study by the Pew Center on the States found that Oklahoma has the third lowest rate in the nation of recidivism within three years of release (26 percent for offenders released in 2004). We were one of only five states with a recidivism rate below 30 percent.

But before we celebrate that statistic, we should examine the reason behind it. As Michael Connelly, the former administrator of evaluation and analysis for the Oklahoma Department of Corrections, told the Tulsa World: “A lot of people who might be put on probation or diverted into an alternative program in another state wind up going to prison in Oklahoma. These lower-level folks aren’t as likely to recidivate, so it benefits our overall numbers and makes us look like we’re doing an even better job than we’re doing.”

In other words, we have fewer people returning to prison because we’re incarcerating thousands of low risk, non-violent offenders who never should have gone in the first place. Yet besides a small effort to encourage courts to take mental health and substance abuse screenings into consideration, the JRI law does nothing to address this problem.

JRI-Other-Prison-PopAnother recent report, by a coalition of groups advocating criminal justice reforms, pointed out that this flaw is shared across states that have taken part in justice reinvestment efforts. The report shows that prison populations have not significantly dropped in states that adopted JRI reforms before 2009. A big part of that is the failure of JRI to address initial sentencing. The report states, “If policy makers want to reduce the costs of corrections, they have to reduce the number of people who enter the system, their length of stay, or both. This point is important, because, many reform efforts shy away from policy mechanisms that can reduce lengths of stay or overall admissions in favor of programmatic strategies that seek to reduce recidivism rates.”

The report also criticized lack of follow-up and oversight in states that approved JRI bills, arguing that “short-lived technical assistance eventually gives way to increasingly watered-down, risk-averse policy mechanisms and inadequate quality assurance of implementation.” That statement tragically resembles what is happening in Oklahoma.

We are wasting millions of taxpayer dollars on unnecessary incarceration, tearing non-violent offenders away from their families, and putting both corrections officers and inmates at serious risk. The problem is in plain view, and we know what needs to be done. What’s still missing is the courage of elected officials to take on the status quo and do what is right.