What lawmakers didn’t do to end the crisis in our prisons

For years, observers have warned of an emerging crisis in Oklahoma’s criminal justice system. With state prisons and county jails packed full and staffing levels falling to the worst in the whole nation, Oklahoma has put the safety of both prisoners and correctional officers at risk.

Our options to prevent a tragedy were to reduce incarceration and ease pressure on the system or to spend what is necessary to ensure safety. For years, lawmakers did neither, and the tragedies we’ve been warned about are now piling up.

In a Tulsa World editorial, Oklahoma Corrections Professionals director Sean Wallace listed a few of those tragedies: “a female case manager was brutally assaulted in her office, another was taken hostage with a knife to her throat, an inmate was murdered for the first time in the history of the James Crabtree Correctional Center, a national report was released showing the State’s all-female prison in McLoud has the highest rate of reported sexual assaults in the nation, two officers were critically injured in a traffic accident after their state vehicle broke down.” Meanwhile, the Oklahoman reports there have been multiple incidents of corrections officers being injured or killed because they fell asleep behind the wheel while working brutally long hours.

It’s clear that crisis we have been warned about is here. So what are lawmakers doing about it? A rundown of major bills affecting criminal justice this year shows that the answer, unfortunately, is almost nothing:

More mandatory minimums

A significant driver of Oklahoma’s high incarceration rates is harsh mandatory minimum sentencing for many non-violent crimes. As we discussed in this blog post, Oklahoma has at least 122 mandatory minimum sentences for even less serious crimes like possessing small amounts of marijuana (two years for 2nd offense) and shoplifting inexpensive items (two years for 3rd offense).

Early in the session, one bill (HB 2608) proposed to reduce a life without parole mandatory minimum sentence for drug trafficking. While presenting in committee, the bill’s sponsor Rep. Cory Williams said the current sentence is so extreme that it has led to “jury nullification”, where a jury refuses to convict a defendant they believe to be guilty because the sentence would be unjust. Rep. William’s bill would not have taken out the mandatory minimum altogether, nor would it have ended the option to sentence someone to life with parole if the crime calls for that. The bill simply added the option to sentence defendants in a range from 20 years up to life without parole. HB 2608 was approved unanimously in the House, but it ultimately failed because it was never given a hearing in the Senate Appropriations Committee.

Lawmakers did approve HB 2589, which adds the prescription drugs morphine, oxycodone, hydrocodone, and benzodiazepine to the list of drugs that can bring charges of trafficking.

The Legislature also made into law HB 2353, which allows a person convicted of human trafficking to be sentenced to life in prison (the mandatory minimum is 5 years for trafficking an adult and 15 years for trafficking a minor). The bill also adds human trafficking to Oklahoma’s “85 percent crimes,” which means persons convicted of this crime must serve at least 85 percent of their term before being considered for parole or earning any good time credits for early release.

Although crimes charged as human trafficking certainly can involve terrible actions which deserve very long prison sentences, Oklahoma statutes define human trafficking in a way that could be applied to almost anyone who plays a part in managing or benefiting financially from prostitution, as well as anyone who transports undocumented immigrants to a workplace. Another bill approved by the Legislature, HB 2349, creates a new mandatory minimum sentence of 3 years for anyone convicted of a crime related to possessing or distributing child pornography. For a second offense, it creates a mandatory minimum sentence of 10 years.

Prior to these laws, nothing prevented judges and juries from giving convicted criminals long sentences for serious crimes. Mandatory minimums may sound tough on the campaign trail, but the real effect is to make our justice system overly rigid and ill-suited to reaching a fair outcome. To get around an unjust system, prosecutors may decline to file charges or juries may refuse to rule against a defendant they believe to be guilty, because they know the punishment would go far beyond what the details of the crime would merit. Some crimes go unpunished while others receive sentences far beyond what is most effective for public safety or justice.

Reforms to post-release supervision blocked

A report released this month by the Pew Charitable Trusts showed that Oklahoma ranks 4th worst in the nation for releasing offenders directly to the streets after their prison terms without any supervision or services. In 2012, the state released a majority of inmates (55.9 percent) to the streets without supervision, which is more than twice the national average (21.5 percent). Pew warned that longer prison terms without post-release supervision was both more costly for states and more dangerous to public safety, because it increases the likelihood that ex-felons will commit another crime and end up back in prison.

Pew found that policy changes that mandate longer sentences without possibility of parole are behind the low levels of post-release supervision. In Oklahoma, the biggest driver of this are the “85 percent” requirements for a growing list of offenses. One bill this session tried to address the problem — HB 2732, the “Correctional Officer Safety Act,” would have allowed 85 percent offenders to earn credits toward early parole during the 85 percent portion of their sentence. The requirement that they serve 85 percent would not go away; this reform would simply give corrections officers a tool to reward prisoners who behave appropriately and make efforts to reform themselves while in prison, as well as providing more time for supervised release of offenders who show signs of reforming while in prison.

This reform was one of the recommendations made by the justice reinvestment study for Oklahoma. It was stripped from the bill, in one of the early signs that this reform effort was doomed. This year, HB 2732 met the same fate. After Rep. Scott Biggs, R-Chickasha, called the bill “soft on crime” on the House floor, the House voted it down 26-62.

Small progress on alternatives to incarceration

One positive bill that made it through the Legislature and was approved by Governor Fallin was Senate Bill 1278. The bill  establishes the “Criminal Justice Pay for Success Revolving Fund.” It allows Oklahoma to enter into a contract with a private program that diverts offenders from going to prison or helps them reenter society after leaving prison. The private group must provide at least $2 million in capital to fund the program initially, and they will be reimbursed based on predefined outcomes of offenders successfully reentering society without falling back into drug use or crime.

The bill bears some resemblance to social impact bonds, discussed here on the OK Policy Blog, with private investors putting money up front to be paid back based on proven cost-savings from decreasing incarceration.

SB 1278 was designed with a specific program in mind — the “Women in Recovery” program funded through the George Kaiser Family Foundation. Women in Recovery is an intensive outpatient treatment program that serves as an alternative to prison for non-violent female offenders. The program offers drug treatment, counseling for recovery from domestic abuse, help with a job search or pursuing a GED, life skills workshops, and more. Women stay under supervision with GPS ankle monitors while in the program, which lasts 18 to 24 months.

Women in Recovery has shown good results in helping women escape addiction and trauma, but the program serves a limited number of women and is only available in Tulsa County. The new funding stream and willingness of the state to grow this program is a welcome development. However, it is a drop in the bucket compared to Oklahoma’s huge shortage in drug and mental health treatment services. An extra $2 million going to this program won’t make up for the nearly $20 million in cuts to programs planned for next year by the Oklahoma Department of Mental Health and Substance Abuse Services, because Oklahoma did not fund the agency to make up for a reduced federal matching rate.

Is there any hope for change?

At the end of session, Rep. Bobby Cleveland, R-Slaughterville, announced he would hold an interim study on sentencing reform and “smart on crime” alternatives to incarceration. He wrote, “The Legislature must stop pretending to be tough on crime and start using common sense to fix the system.” Rep. Cleveland’s effort is welcome, and the need for action is urgent. We can only hope that this latest push for criminal justice reform turns out better than the last one.