As Oklahomans prepare to vote on State Question 805 during the Nov. 3 general election, opponents have started attacking the justice reform measure in predictable ways, attempting to stir up fear through false and misleading claims. Opponents of SQ 805 are preying on emotions that have resulted in Oklahoma maintaining one of the nation’s highest incarceration rates, driven by long and frequent prison sentences for all types of offenses. Four years ago, SQ 780, a ballot initiative to reclassify many drug and property crimes as misdemeanors, received similar attacks. Since that reform measure passed, Oklahoma has achieved great success in diverting people away from prison, while crime rates remain near all-time lows, contrary to the doomsday predictions by some District Attorneys and law enforcement officials.
As SQ 780 did before, SQ 805 provides a major step forward towards a more balanced approach to criminal justice, but it is far from radical. SQ 805 would end the practice of extending a prison sentence based on prior nonviolent convictions, but it would not prevent courts from taking into account past convictions, or prohibit further changes to sentencing laws. This measure places a cap on sentencing to make sure that the punishment fits the offense, preventing ever-lengthening prison terms for people with prior nonviolent convictions.
Sentencing can still take prior history into account if SQ 805 passes
Some District Attorneys have falsely claimed that SQ 805 eliminates the ability of courts to account for a person’s prior history of convictions. This simply isn’t true; if SQ 805 passes, courts can and will continue to take a person’s past behavior into account.
Our state laws provide sentencing ranges to allow a judge to determine the most appropriate sentence for the crime. For example, though second degree burglary carries a sentence of up to seven years in prison, very few people receive a seven-year prison term for their first conviction. Maximum sentences should reflect the most severe punishment for an offense, but sentence enhancements can extend punishments to absurd lengths. They can lead to blatantly egregious situations like a woman facing 20 years in prison for petit larceny and drug possession.
Opponents have also argued that escalating domestic violence offenses cannot be met with increasing sentences if SQ 805 passes. However, Oklahoma statute already provides a separate felony offense of “domestic abuse with a prior pattern of physical abuse” that would apply to many of these cases and would not be changed by SQ 805. It’s also worth noting that Oklahoma’s current punitive response to domestic violence hasn’t produced meaningful accountability or made us any safer. With sentence enhancements in place, domestic abuse is on the rise in Oklahoma and our state has the third highest rate of women killed by men. Domestic violence is a serious problem here, but harsh sentencing guidelines for perpetrators can often be counterproductive. Survivors may be less likely to testify against an abuser they care for because their abusers may face long prison terms; this reticence to testify, in turn, makes cases harder to prosecute. As District Attorney Allan Grubb noted in July, our incarceration crisis harms survivors more than it helps them.
SQ 805 does not prohibit legislative changes to sentencing laws
Opponents have argued that because SQ 805 is a Constitutional amendment and freezes the list of violent offenses as it stood on January 1, 2020, the Legislature will not be able to add offenses that should be classified as violent.
While SQ 805’s ballot language prevents the Legislature from changing the list of offenses that can be used for sentence enhancements, lawmakers retain complete control over sentencing ranges for all criminal offenses. The Legislature will still be able to change sentencing ranges to create higher maximums and to create new offenses. Sentence enhancements are currently used to extend sentences in four out of every five eligible cases; SQ 805 will ensure that people are not punished twice for the same offense.
SQ 805 is an important next step to reduce Oklahoma’s prison population
During the last two years, Oklahoma’s prison population has declined significantly since voters approved SQ 780 and lawmakers passed a justice reform package in 2018. Since peaking at more than 28,000 people in Oklahoma’s prison system, the number has dropped by nearly 5,000, or 17.5 percent, during the past two years. While that’s impressive progress, Oklahoma still maintains one of the nation’s top three highest incarceration rates.
For Oklahoma to approach the national average for incarceration rates, we need to reduce our prison population by an additional 6,500 people. To make that happen, we need to continue to take bold steps in the face of fear-based claims like those currently being pushed by SQ 805’s opponents. As Oklahomans cast their ballots, we should be wary of these latest attempts to spread fear in the service of maintaining a status quo that has done more harm than good.