Has Governor Fallin turned a corner on criminal justice reform?

Two years ago, hopes were high that Oklahoma was finally taking a different approach to criminal justice, away from policies that had given us some of the highest levels of incarceration in the world without doing much to reduce crime and recidivism. The Justice Reinvestment Initiative, spearheaded by former Speaker of the House Kris Steele, made recommendations to enhance public safety, strengthen post-release supervisions and treatment for addiction and mental health problems, and contain prison costs.

The effort culminated in HB 3052, a bill that left much undone but could have been an important first step towards a smart on crime state. Unfortunately, implementation of those reforms fell apart after Speaker Steele was term-limited out of the Legislature, and Governor Fallin’s office refused to cooperate with the oversight group he had set up.

Without a champion in the Legislature or Governor’s office, hopes have dimmed that we will see meaningful changes to reduce incarceration. However, a recent development may signal that Governor Fallin is becoming more supportive of reform. A new report made at the request of the Governor’s office lays strong recommendations for a path forward on this issue.

The report was prepared by Adam Luck, a graduate student at the John F. Kennedy School of Government at Harvard. Luck is a native Oklahoman who returned to the state as part of the Michael S. Dukakis Governor’s Summer Fellows Program. In Governor Fallin’s application for a Dukakis Fellow, she specifically requested an analysis of the Justice Reinvestment law, writing:

The Dukakis Fellow would be tasked with the development of creative and innovative approaches for a ‘way forward’ policy paper — in coordination with our Departments of Corrections and Mental Health — on justice reform efforts with special emphasis on the Oklahoma Justice Reinvestment Initiative.

Luck was given extensive briefings on the law by the Governor’s office and connected with numerous representatives from the Departments of Corrections and Mental Health, the state and Oklahoma County attorney generals’ offices, non-profits involved with reintegration and alternatives to incarceration, current and former legislators, and more.

Based on these interviews, site visits to Oklahoma corrections facilities, and a survey of other research, Luck presented several recommendations. He divides them into 4 areas: improving implementation of the law already on the books; finishing the Justice Reinvestment process; building on reform; and fixing the reform process.

Implement the law

Luck recommended specifically reserving beds in prison or, preferably, community corrections facilities to house “intermediate revocation” offenders. These are inmates who have been returned to custody for violating the terms of a drug court program or probation, and intermediate revocation is meant as an alternative to sending them back to prison.

Even though this provision was a central reform of Justice Reinvestment, it’s mostly been ignored. The Tulsa World reported in March that only 19 men and 12 women have been sentenced to intermediate sanctions since the law took effect — less than 2 percent of the more than 1,000 men sent to prison in 2013 for technical probation violations.

Luck also recommended funding the Department of Corrections to provide intensive substance abuse and mental health treatment during intermediate revocation, as well as increasing funding to screen offenders for substance abuse and mental health issues prior to sentencing.

Another part of the law that needs more accountability, and possibly additional legislation, is the requirement that all offenders serve at least nine months under probationary supervision after release. Two years after the law went into effect, many judges remain unaware of the requirement — last year, the DOC reported that only nine offenders have had the requirement placed on them out of 1,621 who were eligible.

Finish the Justice Reinvestment process

A second area of recommendations are concerned with how to complete the Justice Reinvestment process in Oklahoma. In other states that have successfully completed the program, the passage of initial reforms was followed up through an active steering committee and funding from the Bureau of Justice Assistance. Yet in Oklahoma, Governor Fallin refused to apply for funding, which led the chair and co-chair of the Justice Reinvestment working group to resign. With no active group coordinating all the state agencies and other stakeholders that influence criminal justice, the reform process has become a shambles.

Luck recommends an obvious way to remedy this — reconvene the steering committee, this time with full support from Governor Fallin, and accept funding from the Bureau of Justice Assistance (which Luck points out has as its sole requirement maintaining an active implementation steering committee). Luck also recommends implementing the suggestions made by the original Justice Reinvestment analysis for Oklahoma. Several of the Justice Reinvestment recommendations never made it into law. In particular, a recommendation to eliminate Oklahoma’s long mandatory sentences for drug possession (which are among the harshest in the nation) was completely ignored by lawmakers.

Another Justice Reinvestment recommendation that was stripped from the law early in the process would allow offenders required to serve 85 percent of their sentences to be rewarded for good behavior while in prison. This provision is supported by Oklahoma district attorneys and corrections officers, who see it as important for protecting their safety. Nevertheless, it was again voted down by legislators this year after opponents labeled it “soft on crime.”

Build on reforms

The next set of recommendations are based on the recognition that Justice Reinvestment, even if fully implemented, was only ever a first step toward needed reform. Oklahoma needs to invest in programs that do the vital work of helping offenders find and keep employment, transportation, and housing. As key models for this approach, Luck specifically mentions the Community Corrections Division within the Department of Corrections and The Education and Employment Ministry (TEEM), a non-profit headed by former Speaker Kris Steele. For services provided by non-profits like TEEM, the state can take advantage of a new law that allows “Pay for Success” contracts, in which the state only pays if certain outcomes to reduce recidivism or provide a successful alternative to incarceration are achieved.

[pullquote]This would address the perverse dynamic where for many ex-felons in Oklahoma it’s illegal to get a job. [/pullquote]Besides funding for services, Luck recommends policy changes to allow an appeals process for offenders to get professional licenses, a driver’s license, and/or subsidized housing.  This would address the perverse dynamic where for many ex-felons in Oklahoma it’s illegal to get a job.

Other recommendations for forward-looking reforms included converting judgement and sentencing documents to an all-electronic system to save administrative costs, incentivizing counties to lower their incarceration rates (Luck reported that counties differ by wide margins on the rate of offenders they sentence to state prison), and passing wide-ranging sentencing reforms that distinguish dangerous from non-dangerous crimes and create more surety in sentencing.

Improve the reform process

Luck’s final area of recommendations seek to “improve the reform process,” which is a polite way of saying we need to fix the politics that got us into this mess in the first place. He suggests identifying key legislative leaders who can build support for reform; forming a coordinated team to develop the reform effort; building public support through proper messaging; and following up any legislation with clear training and enforcement of judges, prosecutors, and any state agency personnel tasked with implementing reform. He also recommends that Governor Fallin hire a full-time coordinator to see the process through from beginning to end.

Would this work? It all depends on whether those with power in Oklahoma choose to cooperate. That’s the biggest unanswered question left by this report — and also the most important.

Oklahoma has at least a decade long-history of reports much like this one being released to silence from state leaders. This year, we have Mr. Luck’s report. In 2012, we had the original Justice Reinvestment study. In 2008, there were recommendations by the Oklahoma Academy Town Hall, and in 2007, the Department of Corrections Performance Audit by MGT of America. In 2004, there was the Special Task Force on Incarcerated Women (led by then Lieutenant Governor Mary Fallin). From 2003 to 2008, lawmakers received annual recommendations from the Oklahoma Sentencing Commission that were annually ignored.

Reading back through these reports, it’s easy to find the common themes — develop alternatives to incarceration for drug possession; allow good-time credits for 85 percent offenders; remove barriers to employment for ex-felons; create intermediate sanctions to avoid sending parole violators back to prison; reduce sentences for non-violent crimes. After all that work studying the issue, prison overcrowding is as bad as its ever been.

The latest report is a worthy contribution to the genre. Hopefully it signals real political will from Governor Fallin to take its recommendations to heart. Hopefully she can find partners in the Legislature willing to show the same leadership.

What needs to be done is well-documented. It’s time to do it.