HB 1269 makes 780 retroactive but leaves issues unresolved

[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

Graphic: Lindsay Myers, Communications Intern

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.

ABOUT THE AUTHOR

Damion joined Oklahoma Policy Institute in July of 2018 as the criminal justice policy analyst. He grew up in Jackson, Mississippi and has lived in Oklahoma since the late 90s. Prior to joining OK Policy, he was an educator at Jenks Public Schools and the Oklahoma School for the Performing Arts. He’s written education and justice features as a contributing writer for the Tulsa Voice since 2016, and he was awarded best Education and General News Reporting features by the Society for Professional Journalists in 2017. Damion earned a Bachelor’s Degree from Oral Roberts University and started several voter registration and political advocacy initiatives during his time on campus. He lives in Tulsa with his wife Rachel.

14 thoughts on “HB 1269 makes 780 retroactive but leaves issues unresolved

  1. Will 1269 impact prisoners who are currently serving time on a trafficking felony conviction that was sentenced Nov 2108?
    Will he be eligible for new sentencing under the new laws and be eligible to earn credit days/etc? Currently he is at 85%

    1. HB 1269 only deals with those convicted of simple possession. Hopefully, laws reforming other drug-related infractions will be considered by the legislature next year.

      1. To Clarify what was a felony simple possession? I was understanding the possession with intent to distribute, was the felony form of possession.

        1. Thanks for the question Jim. Before SQ 780 felony simple possession was a crime punishable up to five years in the Department of Corrections and pay a $5,000 fine. Now that crime is a misdemeanor punishable by up to a year in a county jail and $1,000 fine. Possession with intent is still a different criminal offense.

  2. I am glad to hear this was passed by the Legislature. I hope the Governor signs it. But the problem of getting these expunged from offender criminal records sounds so costly. I like the idea for having the costs waived. I really hope something positive can happen for those who just have convictions for simple possession

  3. This is a great step! I hope there will be changes for nonviolent offenders! I have a criminal history and have changed my life so much! I work full time go to college full time and am a Oklahoma Department of Corrections bandaged volunteer! I was hoping the bill would pass that allows felons who go to college can get their fines n court cost waived! I Owe over 10000 to Grady county! I want to apply for expungements and pardon so I won’t have a problem Obtain employment using my degree! I graduate in the fall!

    1. Thanks for the question Dennise. Possession of a dangerous or controlled substance within 1000 feet of a school or park is technically a different criminal offense than simple possession. A person who committed this offense could still be theoretically eligible for expungement, but that eligibility wasn’t altered by the provisions of this bill.

  4. Thanks for your question, Dell. Felony DUI drug statutes were not reclassified as misdemeanors by SQ 780. So this bill wouldn’t impact that conviction.

    1. I was arrested for Knowingly Concealing Stolen Property but I am not for sure what the value of the fishing poles where. Even if the value is over $1000, SQ 780 changed the penalties for the crime if the value of the property is between $1000 to $2500 from a 5 years to a 2 year sentence. Will I be able to get post conviction relief in that case? Will I have to do a regular commutation or something different?

  5. I was sent to prison for Knowingly Concealing Stolen Property and I was released on GPS yesterday, which means I am still considered in DOC custody until I make parole or completely discharge my sentence. I was sentenced to a 5 year term for that crime on June 28, 2017 for some fishing poles that I found on the side of the road and I didn’t give them to the police like I should have so they could find the rightful owner of the property. I understand that SQ 780 made that particular crime a misdemeanor if the value of the property is under $1000. I also saw that if the amount of property is between $1000 to $2500 than now it is a 2 year sentence instead of a 5 year sentence. I am not sure what the value of the property was but I am now trying to find out. I was wondering if the amount of the property I was charged with concealing is between $1000 and $2500 if I would be eligible to have my sentence commuted to a 2 year sentence since SQ 780 became retroactive under HB 1269. I wrote a letter to you about it when I was still in prison but I left before I could get a reply back. I want to thank you for trying to change the laws so that way people with low level drug and property charges can have a better chance of becoming productive members of society.

  6. If someone is out on parole for poss of a cont substance will their parole end November 1st when the bill takes effect

  7. How will this effect someone who has a possesion of cds charge ? Will rights be restored like voting and gun ownership for example.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.