Oklahoma State Penitentiary in McAlester. Photo by Charles Duggar used under a Creative Commons license.

A criminal justice reform bill, HB 3052, has been making its way through the legislature to great fanfare. More recently rebranded as a “public safety bill,” it is the result of Oklahoma’s participation in the Justice Reinvestment initiative, which seeks data-driven ways to reduce crime and recidivism and ease the burden on overcrowded prisons.

Reforms are direly needed. The state’s incarceration rates are among the highest in the nation. An overcrowded, understaffed prison system is putting both inmates and correctional officers in danger. And all that imprisonment is not paying off in public safety, with Oklahoma’s violent crime rate remaining above the national average.

So are these latest reforms the answer?

As a whole, the bill contains several good ideas, but two serious potential obstacles remain. First, many of the reforms depend on cooperation by district attorneys and judges in each of Oklahoma’s 26 judicial districts. The Oklahoma District Attorneys Association has endorsed HB 3052, but they will need to actively participate in the implementation for reforms to be successful. Oklahoma DAs have already pushed back against last year’s reforms. Their complaints about offenders scheduled for release with GPS trackers led the DOC to significantly scale back the program.

The second obstacle is inadequate funding for mental health and substance abuse treatment. HB 3052 creates new tracks for directing offenders to treatment instead of prison, but the tracks won’t be much use if there’s no destination at the end. That takes money. Like so many other goals for our state, it is highly unlikely that we will see real improvements in public safety if tax cuts remain lawmakers’ number one priority.

Here’s what the bill would do:

Probation and Drug Court Reforms:

  1. Establishes “intermediate revocation facilities” for alternative sentencing of drug court and probation violators. The Department of Corrections (DOC) does not have funds to build new institutions that would serve as intermediate revocation facilities, but DOC Director Justin Jones said they plan to designate beds at community correction facilities to fill this role. Jones said the difficulty will be providing “intensive programmatic services” that the bill calls for at these facilities, since the department does not have resources to expand already overburdened mental health, substance abuse, and domestic violence counseling and treatment programs.
  2. Provides an option for a sentence of 6 months at an “intermediate revocation facility” for those who violate the terms of a drug court program or probation. Jones said drug court violators in Oklahoma currently serve an average of three years, so an alternative sentence of 6 months would help reduce incarceration if it was widely adopted. However, the impact depends on the cooperation of Oklahoma judges and district attorneys, because the law makes the sentence a new option for the courts, not a mandate. Jones gave the example of a law passed in the 1980s that provided an option for weekend and nighttime incarceration. The option is still on the books but has been used rarely if at all.
  3. Requires a probation period of at least 9-months to be included with any sentence and instructs DOC to develop a sentencing matrix for probation violations. The mandatory probation time is aimed at reducing recidivism, and the sentencing matrix is intended to ensure that sanctions for probation violations are applied consistently and fairly. To be most effective, the added probation time would need to be paired with more treatment and reintegration resources. It remains to be seen whether the legislature will provide funds needed to offer these services.

Sentencing Reforms:

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  1. Allow credits for time off a sentence to be earned during “85 percent time.” [UPDATE: This provision has been taken out by a Senate committee.] For the most serious crimes in Oklahoma, offenders are required to serve at least 85 percent of their sentence. This section clarifies that they can earn time off for good behavior during that 85 percent time, but the credits will still not go into effect until at least 85 percent of the sentence is served. A 2007 audit by MGT of America cited the rise in 85 percent sentencing as the reason for “virtually all” of the projected growth in Oklahoma’s prison population. Last year’s corrections reform bill, HB 2131, did finally implement one of MGT’s recommendations to make 85 percent offenders eligible for community sentencing.
  2. Reduces sentence for a second drug conviction in some circumstances. A second conviction involving any Schedule III, IV, or V substance or marijuana that is not during probation or within ten years of a previous conviction would be punishable by a sentence of one to five years, instead of the current two to ten years. Because it is a relatively minor change to a small subset of convictions, this is unlikely to have a major effect on prison populations.

Substance Abuse and Mental Health Treatment Reforms:

  1. Requires assessment of anyone convicted of a felony for mental health and substance abuse problems. The assessments will provide information for courts to consider in sentencing, and anyone who is found to need treatment will be referred to the Department of Mental Health and Substance Abuse Services. Yet treatment programs inside prisons have been slashed due to budget cuts, and DMHSAS is currently able to serve only about one-third of the Oklahomans who need treatment. We can identify who needs treatment, but little will be accomplished without more resources to provide it.
  2. Increases the eligibility for sentence modification from 12 to 24 months after conviction.  This section is in response to long waiting lists that often make it impossible for offenders to get into treatment programs within 12 months of sentencing. It does not provide any funding to offer more treatment in order to shorten the waiting lists. District attorneys would have to approve any sentence modification after 12 months, which may create a conflict of interest since their role in the justice system is to advocate against defendants. Overseeing a modification could also create more work for the DA’s office compared to reinstating the original sentence.

Law Enforcement Reforms:

  1. Creates the Justice Reinvestment Grant Program. If fully funded, this program would provide about $5 million per year to local law enforcement agencies for new strategies to combat violent crime. It would give preference to initiatives that emphasize use of crime mapping technology, community engagement, and multi-jurisdictional cooperation.

Oklahoma’s over-incarceration problem is three decades in the making, and there is no easy fix. HB 3052 has some potential to reduce incarceration while improving public safety in our state, but only as part of a larger effort, which includes the entire justice system, mental health and substance abuse treatment programs, and lawmakers who keep up the push for smart reforms.