What criminal justice reform can do… and what it can’t (Capitol Updates)

Steve Lewis served as Speaker of the Oklahoma House of Representatives from 1989-1991. He currently practices law in Tulsa and represents clients at the Capitol. You can sign up on his website to receive the Capitol Updates newsletter by email.

One of the issues that seems to be on everyone’s action list this coming session is “criminal justice reform.” It’s often said that Oklahoma spends “too much” on prisons and “too little” on services like education and mental health that are thought to keep people out of prison. With $485 million in the current year’s budget for the Department of Corrections, corrections seems to be natural place to look for savings. This is nothing new, but it seems to be gaining momentum, motivated primarily by the budget crisis.

A few years ago with the leadership of Speaker Kris Steele, legislators passed what was thought to be landmark legislation known as the Justice Reinvestment Initiative (JRI). The program, patterned to some extent after Texas’ success at reducing prison populations, was passed at Steele’s insistence but never really received much buy-in from other state leaders. Sufficient funding was never appropriated to initiate the programs which would eventually produce savings. Governor Fallin turned down millions in federal funding available to jump start the process. When Steele, who was term limited, left the legislature the JRI was left to languish on the books but be generally ignored.

The thought that saving money on prisons is a significant answer to the state’s fiscal worries is a faulty premise. It could be part of the answer, but it lacks proportionality. A short-term savings of 10 to 15 percent would have to be considered a roaring success. That would produce around $50 million to $70 million. Frankly, this would likely only scratch the surface of the pent up needs within the Department of Corrections itself after years of underfunding. The money would hardly be noticed in the education budget.

Corrections reform is just part of criminal justice reform. Oklahoma is one of only six states that still has jury sentencing (Arkansas, Kentucky, Missouri, Oklahoma, Texas and Virginia.) A combination of mandatory minimum sentences, enhanced sentences for repeat offenders, 85 percent sentences and jury sentencing has stacked the deck in Oklahoma for long sentences beyond what is necessary in many cases to serve the purposes of justice. Juries don’t get to consider the possibility of probation, restitution, community service or other sentencing alternatives. And they have no idea what the sentence was for the last 15 people who committed the same crime. So defendants often agree to relatively harsh sentences rather than face a jury.

Jury sentencing is probably a sacred cow for the foreseeable future, but changes could be made in the process that makes the system fairer and much less expensive. But that will take preparation and a thoughtful approach that likely can’t happen within a 4-month legislative session. Unless significant study and debate has occurred prior to session that kind of reform may not be on the table this year.