[Note: A previous version of this post was published when it appeared that the Oklahoma Senate was not going to allow a final vote on HB 1269. We have updated this version to reflect that the Senate has approved the bill and sent it to the governor.]
In 2016, Oklahoma voters made simple drug possession a misdemeanor instead of a felony. By voting yes to State Question 780, Oklahomans expressed a clear desire to prioritize treatment over incarceration for those struggling with addiction. These changes raised significant public policy and moral questions. What should be done about the people serving felony sentences in Oklahoma prisons that would be misdemeanors under current law, and what about the thousands more with prior felony convictions for crimes that are now less serious offenses?
HB 1269 was designed to address these issues. The bill’s goal is to make the historic impact of State Question 780 retroactive so that people arrested for simple drug possession before SQ 780 have the opportunity to undo the lifelong consequences of a felony sentence. HB 1269 is a positive step for justice reform in Oklahoma, but a recent amendment will complicate the bill’s resentencing process and create financial hurdles that will lessen the positive impact of retroactivity.
HB 1269 offers justice for hundreds currently in prison
HB 1269 will create an opportunity for nearly 1,000 people serving time in prison for simple possession to have their felony sentences commuted by the Pardon and Parole Board. If the Governor signs the bill in its current form, these commutations would begin in December or January after the bill takes effect in November. This commutation process was simplified for those in prison for simple possession, but this method is slower and requires more steps than the resentencing process proposed in the first version of HB 1269.
To account for this, the Parole Board must create a “commutation docket” in which a large number of the individuals eligible for commutation and early release through HB 1269 could be voted on at the same hearing with a single up or down vote. This would save the Parole Board the added logistical burden of hundreds of new individual hearings, and it would achieve the goal of getting these inmates back to their families and communities as soon as possible.
Expungement is an inefficient and expensive way to make 780 retroactive
In addition to a slow commutation process, another critical weakness in the latest version of HB 1269 is the use of expungements. The bill now uses expungements to erase the criminal records of those sentenced before simple drug possession became a misdemeanor. This is done by sealing their court and arrest records. The goal of this process is to help these individuals undo the harmful impacts of a felony that they would never receive under current law. A breadwinner with a felony record has greatly diminished job prospects. This is why providing a way for the more than 60,000 Oklahomans with simple drug possession felonies to clear their record is so important.
The new language of HB 1269 perpetuates a two-tiered justice system where those with the financial means to hire an attorney and pay these costs have better access to justice.
Unfortunately, the expungement process proposed in HB 1269 will price it out of reach for many individuals. The process requires numerous expensive steps and often the assistance of an attorney. Here is a breakdown of the financial costs associated with expungement:
- $500-$1,500 ( $150 an hour avg.) consultation with an attorney
- $15 to get your OSBI Criminal History Report
- $150 OSBI fee to record the final court order.
- $175 (approximate) court filing fees and mailing fees
At a bare minimum, it will cost more than $300 just to fill out the expungement paperwork created by HB 1269. This cost is in addition to any other fines and fees that individuals must pay before they are allowed to file for expungement. The new language of HB 1269 perpetuates a two-tiered justice system where those with the financial means to hire an attorney and pay these costs have better access to justice. Low-income Oklahomans, largely from rural communities and communities of color, will have great difficulty benefiting from this new system.
These costs directly contradict the goals of the Governor and legislative leaders who stated that they wanted to reduce the impact of Oklahoma’s fines and fees. Lawmakers should fix this problem by waiving these expungement costs for anyone filing under the new provisions of HB 1269, or at the least, they should provide a hardship waiver for those deemed unable to pay. Justice reforms that can only be accessed by those with money are not a real break from the failed policies of the past.
HB 1269 leaves many issues unresolved
The fact that nearly 1,000 Oklahomans will be released from prison early because of HB 1269 is a profound victory for justice reform in this state. However, the bureaucratic process in the bill leaves more than 60,000 Oklahomans outside prison with a costly and prohibitive expungement process. In addition, HB 1269 does nothing to address problems like sentence enhancements. Because of these “enhancements,” numerous Oklahomans are serving longer prison sentences than they would have served without a prior drug possession felony. Disparities like these contribute to Oklahoma’s world-leading incarceration rate.
Oklahoma voters decided that prison is not a rational or cost-effective means of dealing with addiction, and policymakers should respect this decision. The future of thousands of Oklahomans depends on it. HB 1269 is a positive first step, but lawmakers should address the issues left unresolved by this legislation if they hope to truly alter the direction of Oklahoma’s incarceration crisis.