Oklahoma’s justice reform movement has made significant headway toward reducing the state’s incarceration rate over the last several years. Voters kick-started this progress with the passage of State Question 780, a ballot referendum resoundingly approved in 2016. This measure had an immediate impact on reducing the flow of people into prisons for minor drug and property offenses.
SQ 780 and its companion measure, SQ 781, were designed in the justice reinvestment mold: reduce spending on prisons, and invest those savings into treatment services for things like substance abuse and mental illness. SQ 780 helped to accomplish the first goal, but the 2021 legislative session marked the third budget without a corresponding investment that voters demanded. Though the Legislature has again failed to fund the treatments that SQ 781 statutorily required, we know that justice reform has measurably reduced the prison population and that mental health remains severely underfunded. There’s no getting around the fact that sustainable progress in public safety will require a much greater investment in substance abuse and mental health services than lawmakers have shown an appetite for so far.
SQ 780 and 781 are designed to both reduce entry into the criminal justice system and address root causes of crime
SQ 780 and 781 were landmarks in Oklahoma’s justice reform movement. After the failure of officials to implement previous reform laws passed in 2012, a broad coalition of legislators, nonprofits, and businesses came together to propose two ballot measures to jump-start the process and demonstrate popular support for justice reform.
SQ 780 reduced all simple drug possession crimes to misdemeanors rather than felonies and raised the felony threshold of property crimes from $500 to $1,000. The offenses targeted were nonviolent and some of the most common for people entering prison. SQ 781 directed the Office of Management and Enterprise Services (OMES) to calculate the savings to the state from the reduced incarceration attributable to the changes made by SQ 780 and distribute that money to counties according to their population to be reinvested in local mental health solutions.
The idea draws on the justice reinvestment framework, which emphasizes routing savings from reduced incarceration into treatment for substance abuse and mental illness in order to address conditions that contribute to criminal behavior.
In the five years since the SQs passed, the Legislature has never actually funded SQ 781
OMES released its first calculation of savings in July 2018. Using a methodology with unfortunately flawed assumptions, OMES calculated savings at more than $63 million in the first year. Lawmakers understandably balked at the high number, which amounts to about 12 percent of the entire Oklahoma Department of Corrections budget, and left SQ 781-related funding out of the budget.
OMES changed its calculation method for FY 2019, estimating savings at $27 million. Again the Legislature declined to deposit funds into the fund created by SQ 781, but they did send $10 million to the Oklahoma Department of Mental Health and Substance Abuse Services (ODMHSAS) for its Smart on Crime initiative.
This year, working with the Department of Corrections and OK Policy, OMES completely reworked its calculation and arrived at about $11 million in corrections savings for FY 2020. With a more reasonable calculation and a surprisingly rosy budget picture, advocates were hopeful that SQ 781 would finally be funded. However, when the budget was released, there was again no appropriation for that purpose, but instead designated $15.5 million to ODMHSAS for various initiatives.
While SQ 780 reduced the prison population, Oklahoma’s mental health needs are still high
The fundamentals of our justice system have shifted since Oklahomans voted on SQ 780 and 781. Our once world-leading prison population has fallen, thanks to SQ 780 and the reform efforts that rode its wake. But our spending on mental health remains dismal, and the Legislature this year declined a golden opportunity to change that.
Since the last federal count ranked Oklahoma’s incarceration rate as the highest in the country at the end of 2018, our prison population has fallen by 18.6 percent. That’s more than 5,000 fewer people in Department of Corrections facilities or awaiting transfer to a facility. Even before the COVID-19 pandemic froze transfers and slowed criminal case processing, the prison population had fallen by more than 2,000 people, or 7 percent, since December 2018. While the prison population may not sustain all of that decline as courts process backed-up cases, it is likely to remain substantially lower than prior to the pandemic.
SQ 781 was designed to tie this progress on reduced incarceration to greater investments in mental health, but the Legislature has unfortunately shown little interest in completing the deal. The ODMHSAS appropriation was reduced by $13 million in the upcoming fiscal year that starts July 1, 2021, saying that Medicaid expansion funding and the $15.5 million for justice system-related programs would still allow growth in services.
With Oklahoma ranked 46th nationally for mental health spending, the windfall from Medicaid expansion and savings from SQ 780 presented an opportunity to take a leap up the rankings. Instead, legislators took it as an opportunity to provide nearly $350 million in tax cuts that benefit out-of-state corporations and wealthy Oklahomans.
Achieving our public safety goals still requires investment in local responses to mental illness and substance abuse
In approving SQ 780 and 781, Oklahomans endorsed a new approach to criminal justice that emphasizes treatment over incarceration. Our collective public safety depends on much more purposeful investment in improving mental health and substance abuse issues.
First, the rules for the distribution of SQ 781 funds can be improved by OMES, with or without action by the Legislature. The current rules require “eligible recipients” to submit proposals to OMES and the local District Attorney office for use of the funds and be released by approval of OMES. It’s important to keep locals in charge of their programs, but prosecutors are not experts in rehabilitation or service provision. It may make more sense to allow ODMHSAS to play a more central role in vetting and approving local programs funded by SQ 781.
Of course, without an appropriation to the fund from the Legislature, the rules for distribution don’t matter. Hopefully, if the Legislative Office of Fiscal Transparency (LOFT) shows a similar level of savings as the official OMES estimate, as suggested by Senate Appropriations Chair Roger Thompson this year, legislators may have the confidence they need to pull the trigger on an appropriation to the SQ 781 fund.
Going forward, however, the Legislature must dispense with excuses and follow the directions given to them by voters in 2016: make real investments in the locally controlled public services that will make our communities safer.