Voters passed State Questions 780 and 781 last year in response to Oklahoma’s incarceration crisis. These measures reclassified simple drug possession and several low-level property crimes as misdemeanors instead of felonies and directed the savings toward treatment and rehabilitation services. The changes have already significantly cut felony filings across the state, though people charged with those crimes under previous law continue to enter prisons at a similar rate.

While these reforms will promote a much more rehabilitation-focused justice system going forward, thousands of Oklahomans are serving felony sentences for crimes that are now prosecuted as misdemeanors. This presents both moral and practical questions: Is it just to imprison those who would not be eligible for prison sentences now?

Oklahoma should make the effects of SQ 780 and other recent justice reforms retroactive; it’s better for Oklahoma families, better for traditionally underserved communities, and it’s better for basic fairness in our overburdened criminal justice system.

Retroactivity offers a chance to correct our past – and there’s a lot to correct

Between 2005 and 2015, 17,458 people were admitted to prison in Oklahoma for possession of a controlled substance. Many more – though we don’t know exactly how many – were imprisoned for low-level property crimes changed by SQ 780. Making SQ 780 retroactive would mean that thousands of incarcerated people in this state could apply for shorter sentences, and with appropriate community support and substance abuse treatment these individuals could become active parents and hardworking contributors to Oklahoma.

Oklahomans for Criminal Justice Reform, a bipartisan coalition of community leaders working to fix Oklahoma’s justice system, has led a commutation and parole campaign designed to highlight injustices facing incarcerated mothers which could be fixed if SQ 780 is made retroactive by the legislature next year. All 46 women highlighted by this campaign are serving prison sentences of 10 years or longer. If these women were convicted of the same crimes today, many of them would serve a year or less, and some would be eligible for no prison time at all. Making SQ 780 retroactive would extend a similar opportunity to thousands of Oklahomans in prison or under supervision for low-level drug and property crimes.

Vulnerable groups like women and children stand to gain the most from retroactivity

“All 46 women highlighted by this campaign are serving prison sentences of 10 years or longer. If these women were convicted of the same crimes today, many of them would serve a year or less, and some would be eligible for no prison time at all.”

The roots of Oklahoma’s current incarceration crisis can be traced back at least 25 years. Since 1991, Oklahoma has incarcerated more women per capita than any other state, and it’s had a devastating impact on Oklahoma families. Nationally, 80 percent of women in jail are mothers, and incarcerated mothers are about three times as likely as incarcerated fathers to have been the only parent in the home. In 2014, half of the women in Oklahoma prisons were living with their kids at the time of their incarceration, and the number of incarcerated Oklahoma mothers has only increased as the rate of female incarceration has continued to rise. A household that loses a mother to incarceration is likely to have lost its primary breadwinner as well as the sole parent living in that house. Children of incarcerated women are more likely to suffer from depression, poor grades, and negative health outcomes. Retroactivity would offer many people in prison or under supervision a chance for a hearing which could shorten their sentences and return them to their families more quickly.

Communities of color and rural Oklahoma deserve better

One in every 15 adult black men in Oklahoma is in prison. Our state has the highest rate of black incarceration in the country. Native Americans make up about 9 percent of Oklahoma’s population, but Native American women make up about 12 percent of the incarcerated people in the state. Hispanics are also overrepresented in Oklahoma prisons, making up 9 percent of the state population and 15 percent of its prisoners. Communities of color bear a disproportionate share of the consequences of incarceration in Oklahoma, and drug related crime is a major driver of these outcomes. Making SQ 780 retroactive would not resolve years of inequality and trauma experienced by these communities, but it would begin to alter the trend of seeing so many people of color locked up in this state.

Rural, predominantly white communities are also suffering due to more recent realities of the opioid crisis and the lasting effects of meth on small town economies. Small Oklahoma communities often lack substance abuse and mental health treatment centers. Only about 1 in 10 people in need are receiving help for their addiction in Oklahoma. For example, Pittsburgh County, a rural county in Southeastern Oklahoma, had the highest amount of opioids prescribed in Oklahoma in 2015. From 2007 to 2017, 2 out 3 deaths in Pittsburgh County were caused by prescription drug overdose. The entire county has only one treatment facility that uses medication assisted treatment. A lackluster local economy in rural communities can often make it easier to find drugs than treatment. When treatment becomes less available, those struggling with addiction often end up in the criminal justice system.  SQ 780 and SQ 781 were designed to create the type of investments in community mental health services which could fix some of these deficiencies in care. A lack of resources shouldn’t contribute to so many rural Oklahomans going to prison, and the Legislature making these reforms retroactive would help address these disparities.

SQ 780 retroactivity will make Oklahoma’s justice system fairer

Texas lowered its prison population by about 10,000 people from 2011 to 2017, and the state closed eight prisons during the same period. Texas invested in alternatives to incarceration like drug courts and mental health and substance abuse treatment and gave judges and prosecutors options other than incarceration for non-violent offenders. States like Louisiana, Kentucky, and Georgia have followed this example and seen incarceration rates fall. These reforms can also begin to reverse the disproportionate incarceration of communities of color.  In Georgia, the incarceration rate fell by 19 percent in the past 8 years, and African-American incarceration has decreased by 30 percent.

The inequities of the past don’t have to dictate the present. Oklahomans don’t deserve less justice than the citizens of neighboring states. The electoral outcomes of recent years- the passage of SQ 780, 781 and even the recent passage of SQ 788, which legalized medical marijuana – reveal a pattern. Voters have expressed a clear desire to incarcerate fewer people for abusing drugs or committing petty theft. Oklahomans deserve a system that responds to the will of voters. Treatment should be easier to enter than prison, and the overly punitive, often counterproductive policies of the past should be undone.