Much work remains for criminal justice reform (Capitol Update)

With the recent widely publicized sentence commutations, one might have the impression that the work of criminal justice reform is done. To the contrary, these commutations only serve to emphasize how much progress can be made with passage of just one reform proposal. Only HB 1269, which made retroactive the reduced penalties passed by a vote of the people, became law.

But even after the commutations, Oklahoma is still near the top of the world in incarceration. As of Nov. 25, Oklahoma had 25,271 incarcerated inmates, 539 inmates in county jails awaiting transfer to prison and 32,019 in community supervision for a total of 57,829 people entangled in the Department of Corrections.

There were a number of reform proposals left on the table at the end of last year’s legislative session that could move Oklahoma toward less harsh, lengthy, and expensive sentences. Here are a few:

1. Bail reform. Defendants who must await their trial from a jail cell because they are unable to pay cash bail are much more likely to plead guilty for a harsher sentence, even sometimes for an offense they did not commit;
2. Oversight by citizen juries. Oklahoma is one of six states where citizen juries determine the sentence. Of those, we are the only state without a two-stage proceeding where defendants can offer mitigating circumstances to the jury prior to determination of the sentence. In addition, juries cannot grant probation in Oklahoma. As a result, jury verdicts fail to measure fully informed community sentiment about the offense. Instead, the threat of facing a jury with only one option — prison — becomes a hammer forcing the defendant to accept a plea deal with the prosecutor;
3. More narrowly written criminal statutes. As one example, the felony statute prohibiting possession of a controlled substance with intent to distribute contains no minimum quantity of the substance to prove intent to distribute, and the statute applies equally to a drug dealer selling drugs for money or a person who is planning to “share” a marijuana cigarette with friends;
4. Broad ranges of punishment that leave wide discretion to prosecutors;
5. Harsh penalties for defendants with prior offenses; and 
6. Ability of prosecutors to revoke probation on technical violations or failure to pay costs.

With dozens of new legislators last year and a new governor, these bills were considered by many to be moving too quickly. Understandably, lawmakers did not want to make a mistake. But sometimes it can be a mistake to do nothing. HB 1269 was passed on the last day of session last year, largely to avoid a goose egg on reform. There are well over 500 people who would still be serving lengthy felony sentences for what is today a misdemeanor if the bill had not passed. A lot of damage could be caused by postponing the other reform measures for another year.