OKPOLICY.ORG
[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.
[pullquote]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.[/pullquote]
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.
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%
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.
To Clarify what was a felony simple possession? I was understanding the possession with intent to distribute, was the felony form of possession.
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.
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
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!
How will this affect someone with possession/CDS 1000’ School/park/child?
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.
How will this bill help someone with a DUI/D that they got in 2013 and convicted in August of 2016
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.
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?
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.
If someone is out on parole for poss of a cont substance will their parole end November 1st when the bill takes effect
How will this effect someone who has a possesion of cds charge ? Will rights be restored like voting and gun ownership for example.
So if I have a prior possession cds and I’m now serving an enhanced sentence 1269 and 780 won’t help me be released early
My wife was sentenced to 5 years in an Oklahoma State prison for felon (non violent)possession of a firearm,but wasn’t committing a crime or threatening anyone with it.Is it a non violent crime?If so how much time must she serve on 5 years?She also has five years parole on a felony drug possession less than $100 all in the same container,under new law its a year correct.
I had a simple possession of cds/meth in 2015 and have already discharged a 5 year sentence in OK DOC, being released in 2017, all fines paid and all probation completed. Do I simply need to contact an attorney for expungement, to drop my felony to a misdemeanor?
I was sentenced to 2 10yrs sentences for simple possession, in 2015 I was released In 2017 will HB1269 have any affect on my case I have since turned my life around been sober ever since my release and gained custody of my kids, but some people won’t even rent to you if u have a meth conviction? I am interested in information on how get my record cleaned up and the fines I have are a hard ship on my family what can I do?
I was convicted in March 2016 of a simple possession of a controlled substance and sentenced to 5 year suspended sentence with 2 years supervised and 3 unsupervised. With the inability to find a job even with an associate’s degree I have fallen behind on my court cost which resulted in a warrant for failure to pay/failure to appear. I have a granddaughter I’m raising and I couldn’t risk what would happen to her if I went to jail for non payment of dimes. I called my probation officer and explained I couldn’t report until I could catch up my fines but I’ve stayed in contact with him but now I have a warrant for a motion to revoke my suspended sentence with only 5 months left on supervised. How will this effect my sentencing if it gets dropped to a misdemeanor?
I have multiple conviction for simple possession dating back to 1992, but none since 2008. Does this mean that I can get my record expunged? And if so, where do I find the steps for the process.
Hello I know someone have a felony charge to distribute. It’s been over 22years. Worked for 36 years now retired. No time served but was on probation years all done. What is the next step to clear his name and record.
msi679@cox.net
How many felonies can you have to be eligible under HB 1269? I have 2 possession charges but also have another unrelated felony. Would I be eligible on the 2 possession charges?
What steps can someone that was denied release during the special docket take since their charge was only possession?
I have felon charge that would be dropped to a misdemeanor now. It’s been over 10 yrs ago and my question is do I still have to pay to get a pardon so I can be able to hunt with my kids? Since I can’t be around firearms as a felon. As I understand to get pardon will cost me about $3500 and takes a year to get.
Everyone keeps saying HB1269 makes State Question 780 “retroactive,” including several attorneys I have spoken with. But in the text of HB1269 I cannot find the retroactive language necessary to make it retroactive EXCEPT that ONCE, in relation to deferred sentences, it says that specific subsection (D) is retroactive. NO OTHER PART OF THIS BILL sets forth a retroactive provision. Where is everyone getting that it is retroactive?
Ok I have a question , heres my situation . in 2010 I caught a simple possession charge early in the year then toward the end of the year I actually caught an endeavoring charge, but here’s the deal, my lawyer got me into women in recovery program and after signing a blind plea the judge agreed that upon graduation of the program he would then drop my endeavoring down to a simple possession charge. So after I graduated the program he did just that and dropped the endeavoring to a possession. For some reason it still shows up as endeavoring on doc but on a background check it shows up an a possession. My question is that since it was dropped to a simple ppossession would I still be eligible if the law passes
I was given a 5 year deffered felony sentce for simple posession. Will this bill help me in any way . I have trouble finding good paying work and finincial struugle let alone to pay on my fines.
How does this reclassification affect pending felonies for simple possessions when the laws changed during the pretrial phase? In other words, defendant was arrested in the summer of 2016, simple possession drug felony charges, and case was not resolved before the passage of SQ 780&781, NOR was it resolved before the bill making it retroactive. What’s supposed to happen to those type of cases?
I was convicted on a endeavoring to possess cds herion. My conviction date was on 8/23/2017. But they filed on me on May of 2016. The law went into effect on this charge july 1st 2017 as a misdaminor. So I did teem. A reentry program. Got of that 6 months early cause I did so well. My probation officer never heard of the charge even.he stated. Paid a lawyer 5000$$. Being on social sucurety. Didnt do know prison time or have a infractions . Paid of everything . So why did not that charge be a misdaminor for me sense I got sentenced a month after that law went into affect . I’m having a hard time finding equal opportunity housing because of this . Is there anything I can do