OKPOLICY.ORG
Steve Lewis served as Speaker of the Oklahoma House of Representatives from 1989-1991. He currently practices law in Tulsa and represents clients at the Capitol.
Legislators missed an opportunity with three bills that are now dormant for this session to make significant reforms in the criminal justice system. The bills were SB 364 and SB 369 by Sen. David Holt, R-Oklahoma City, and HB 1730 by Rep. Meloyde Blancett, D-Tulsa. The bills were casualties of the legislative deadline requiring bills to be passed out of the committee to which they were assigned in their house of origin by last Thursday. None of the three bills received a hearing in committee.
SB 364 and HB 1730 mirrored each other and would have reformed the bail bond system for pretrial detention. Many Oklahoma courts operate on a schedule-based bail system. A monetary bond is set based on the accused’s alleged offense with little or no consideration given to the accused’s personal circumstances. Thus, bond has the opposite effect than that for which it was intended. People who have no money stay in jail even though they are at little risk of failing to appear for court or being a danger to someone or the community. People who should remain in jail are released because they have the money to get out, free to abscond or hurt someone.
A report to the Oklahoma County Criminal Justice Task Force studied the problem of jail population growth. It concluded that “Reforming the pretrial process — whether through changes to how bond amounts are calculated, who is eligible for non-monetary pretrial release, and how non-monetary pretrial release is managed — is the area ripest for change.” According to the report, on November 17, 2015, more than 450 people were in jail in Oklahoma County awaiting trial with a bond of $5,000 or less. The report says “money plays an outsized role in who occupies pretrial beds in the Oklahoma County Detention Center.” Oklahoma County is certainly not unique in Oklahoma in this respect. SB 364 and HB 1730, had they been given consideration and passed would have changed this and saved considerable taxpayer dollars, to say nothing of making the system fairer.
Sen. Holt’s SB 369 would have given Oklahoma juries in criminal cases the right to receive the same information and have the same sentencing options as judges. In most other states juries find guilt or innocence, and judges set the sentence. Oklahoma is one of only six states where juries both find guilt and set the sentence. In three states, Oklahoma, Virginia and Kentucky, juries are given only one option for punishment: prison. In three states, Texas, Arkansas and Missouri, the jury receives evidence of aggravating or mitigating circumstances and can grant probation if appropriate. Although Oklahoma judges can override the jury and grant probation, they seldom do because the jury represents the community. If juries are meant to set the community standard for sentencing, they should have the full range of options to truly reflect the community. It’s no wonder our prisons are overflowing.
What many fail to recognize in their haste to eliminate monetary bail, is that licensed bail bond agents already provide much of the same services outlined with zero cost to the taxpayers. Passage of HB1730 would require additional staff and funding to implement, and the money for this has to come from somewhere- either taxpayer funding or additional court costs levied on the convicted. In truth, current outsourced pretrial release programs often cost the accused more money over the course of their case than bail secured through a bail bondsman. In addition, the risk assessment methodology mentioned in the proposed laws is essentially the same risk assessment conducted by a licensed bail bondsman prior to writing any bond. While the case of those incarcerated awaiting trial because they possess insufficient monetary resources is unfortunate, their first line of action to not being in that situation is undeniably adherence to the law. That fact is remarkably absent in the many arguments made against private bail, and in favor of non-monetary pretrial release. If saving taxpayer money, while also relieving jail overcrowding is the ultimate goal, the simplest and most likely cost efficient solution would be for the courts to provide the accused with sufficient money to pay for a surety bond through a licensed bail bond agent, in much the same way they currently provide attorney services to the indigent. Privately provided bail has been codified in law in some form or the other since the earliest years of statehood, and has proven to be the method with the lowest number of failures to appear in court. With a less jaundiced eye, private bail should be viewed as the outsourced solution to guarantee court appearance it has always been. With this in mind, the motives behind bills such as HB 1730 deserve to be questioned when a simpler solution already exists. Thank you.