OKPOLICY.ORG
Last week, the House Public Safety Committee, chaired by Rep. David Hardin, R-Stilwell, held an interim study on criminal pretrial procedures, with Rep. Erick Harris, R-Edmond, presenting. Harris said that, with the overcrowded conditions in Oklahoma’s jails and corrections system, he wants to make certain there is enough room to hold those who need to be held in jail awaiting trial. There are people taking up space in jails that is needed for those violent offenders who must be held.
The first presenter, David Weber, jail administrator for the Comanche County Detention Facility, discussed overcrowding and the liability it has created for Comanche County. For the past two years, the facility has averaged 330 to 340 inmates despite a maximum capacity of 240, and at one point reached 457. Overcrowding has forced Weber to send 80 to 100 Comanche County inmates per day to jails in Greer, Grady, and Washita Counties, costing the county an average of $160,000 to $175,000 per month.
Two full-time transport officers take inmates to and from Lawton for court appearances. Weber cannot refuse prisoners even when the jail is over capacity. He said overcrowding exposes the county to substantial liability and strains both staff and inmates. Six lawsuits are still in progress alleging civil rights violations.
The next presenter, Ottawa County District Attorney-Elect Ben Loring, discussed the 2014 death of a detainee in the Ottawa County jail who faced a felony charge of driving under the influence after a prior felony conviction. After missing two court hearings, the detainee learned of an outstanding failure-to-appear warrant and turned himself in. He remained in custody, unable to post a $10,000 bond.
After a few days in jail, the detainee developed health problems. Loring said jail staff unquestionably mishandled those problems, describing their treatment of the detainee as torture that created inhumane conditions leading to his death.
A civil rights lawsuit went to trial in federal court a little over a year ago. The jury awarded $33 million, and the judgment was upheld on appeal. The county had two payment options: pay over three years through property taxes, which would have roughly tripled property taxes, or issue bonds funded by a one-cent sales tax over 16 years. County commissioners put the sales tax to a public vote, and it passed with more than 90 percent approval. The tax will put Ottawa County, which borders Missouri, Kansas, and Arkansas, at a considerable competitive disadvantage.
Christopher King of Tulsa County Court Services outlined the county’s pretrial practices, which began in 2018, the same year several detainees filed a federal civil rights class action lawsuit against Tulsa County and the District Court. The Tulsa County District Court now holds meaningful individualized bail hearings for each detainee who cannot post a predetermined bond within 24 to 48 hours of arrest. Hearings are conducted daily, including weekends and holidays. The Tulsa County Public Defender automatically appoints representation for detainees without an attorney at their bond hearing.
Before each day’s bond docket, Tulsa County Court Services conducts a thorough background check on each detainee, reviewing their criminal record, court attendance, community ties, financial circumstances, and other factors. It shares the findings with the attorneys and the court. The court reviews the report, along with information from the district attorney and defense attorney, to assess whether releasing the person would endanger the community or pose a high risk of failing to appear at future hearings. The court then decides whether to detain or release the person and, if released, under what conditions.
Oklahoma County District Attorney Vicki Behenna reviewed longstanding legal requirements for pretrial detention in Oklahoma, including cases from the Oklahoma Court of Criminal Appeals requiring individualized hearings with detainees represented by counsel.
Those decisions, along with a recent Tulsa County ruling by U.S. District Judge Stephen Friot, require courts to consider several factors when deciding whether to detain someone before trial. Behenna said detention decisions that violate Oklahoma or federal law leave the county and state vulnerable to lawsuits. In Oklahoma County, where 80% of detainees await trial, she noted that liability from litigation and settlements has reached $10 million this year alone.
Marilyn Davidson, representing Right on Crime, a conservative group under the Texas Public Policy Foundation, said the pretrial process should protect the public from further harm and ensure defendants appear in court. She emphasized that this stage shapes the rest of a case and that everyone is presumed innocent until proven guilty, a principle sometimes overlooked.
She said we need change because of jail overcrowding, the large pretrial population, and long processing times. Davidson cited statistics showing that in 2022, Oklahoma detained people pretrial 30 percent more than the national average. Oklahoma ranks 11th nationally in pretrial detention, and our time in pretrial continues to get longer. She said a large percentage of detainees across the state are not a danger to the community.
Davidson said pretrial detention is a public safety issue because it increases the likelihood of new arrests, failure to appear in court, and harsher sentences. Additional consequences of pretrial detention are a decline in psychological and physical health, loss of job or employment prospects, loss of housing, harm to social bonds, loss of custody of children, and greater likelihood of pleading guilty. She said studies in Tulsa and Oklahoma County show that lowering jail populations does not compromise public safety.
Malia Brink, Policy Director of the Deason Criminal Justice Reform Center at the Southern Methodist University Dedman School of Law, presented information on the value of having counsel at the arrested person’s first appearance in court. Focusing on the earliest phase of cases helps address erroneously filed cases and cases where issues, such as mental health issues, can be more appropriately addressed outside the criminal legal system.
She said better pretrial processes, including individualized hearings with counsel, provide more information for better release decisions, increase the likelihood of release, reduce jail overcrowding, and improve public safety. Better-informed, individualized decisions protect the public and preserve families.
Brink cited a Kentucky study comparing low-risk people released within 24 hours with those held for 8 to 14 days. Those released within 24 hours were 36% less likely to be rearrested before trial and 34 percent less likely to reoffend. She also reviewed a Mississippi pilot pretrial release program in which representation by counsel at the initial appearance led to faster case resolution, a failure-to-appear rate of only 3 percent, and more favorable outcomes.
Finally, Travis Finck, executive director of the North Dakota Commission on Legal Counsel for Indigents, described the state’s statewide pretrial counsel program. State law presumes that anyone who reaches an initial court appearance unable to post the preset bond for their charge is indigent, and counsel is appointed for the bail determination. Finck explained that public defenders in rural states have received cooperation from district attorneys and judges and saved money by providing early representation to jail detainees.
The study’s bottom line was that those who need to be detained before trial to protect the public or because they are a flight risk should be held. Those who don’t should not be. Anyone in jail custody is a potential liability and expense for the county and state. Unnecessary pretrial detention, without adequate pretrial procedures, risks harm to individuals, families, and public safety.
