In the wake of the failure of the criminal justice reform proposals put forth by the Justice Reform Task Force this year, Rep. Scott Biggs, the chairman of the House Judiciary – Criminal Justice and Corrections committee, blamed Governor Mary Fallin and others of refusing to discuss the definition of “violent” and “nonviolent” crimes used by some of the bills. After the session, in the lead-up to an interim study on that definition, Rep. Biggs distributed a survey asking respondents to classify every felony under Oklahoma law as violent, nonviolent, or a new, vaguely-defined category created by Rep. Biggs, “danger to the public.”

Governor Fallin, for her part, declined to return the survey, instead sending a strongly-worded letter criticizing Rep. Biggs’ actions during and since the regular legislative session. (OK Policy was also invited to complete the survey, but declined to do so.) But the content and length of the survey are striking in themselves, revealing an increasingly sprawling criminal code that could make a felon out of just about any Oklahoman.

How do you know if you’re committing a felony?

Source: Manhattan Institute

Rep. Biggs’ survey identified 682 felony crimes and their citations in Oklahoma’s state laws. Many are notable for applying to relatively innocent or obscure offenses. For instance, a person who takes up a stray dog but does not report it to the county sheriff within 7 days may be guilty of a felony punishable by 6 months to 3 years in prison. Making a false statement in the application to hold a closing out sale is a felony. The second offense of selling or even giving an alcoholic beverage to, in the words of the law, “an insane, mentally deficient or intoxicated person” is a felony punishable by a fine of at least $2,500 and up to five years in prison. Even adultery is a felony under Oklahoma law, punishable since 1910 by up to five years in prison. Many more laws criminalize violations of regulatory and licensing codes, touching everything from private security guard applications to horse racing.

The unabated growth of the criminal code means that it is much easier to run afoul of the law inadvertently, even when the language of that law is unclear. Last year, for instance, a bar owner in Norman was arrested for selling drinks with bacon-infused vodka. Although the Alcoholic Beverage Laws Enforcement (ABLE) Commission later ruled that such drinks are allowed, the episode had real costs: the bar manager spent several days in jail and had to hire an attorney to resolve the case.

While most Oklahomans will hopefully never go through a similar ordeal, the criminalization of so many activities creates risk of arbitrary enforcement against any of us and diverts scarce resources from serious crimes. 

Lawmakers created new felonies even as they pursued justice reform

Even as lawmakers have acknowledged the overreach of Oklahoma’s justice system and sought to reduce the prison population in recent years, they continued to create new criminal penalties for licensing and regulatory violations. A study by the Manhattan Institute found that the Legislature created an average of 26 new crimes per year between 2010 and 2015, and even more when including regulations carrying criminal penalties that are written by agencies. In 2012, for instance, the Legislature passed a law giving the Agriculture Department authority to regulate the sale of pets, specifying that any violation of the rules could be criminally prosecuted. The rules written by the Agriculture Department run more than 20 pages, creating a minefield for anyone planning to sell animals.

“A study by the Manhattan Institute found that the Legislature created an average of 26 new crimes per year between 2010 and 2015.”

There’s a clear tension between this trend toward more crimes and the push for justice reform, but most lawmakers don’t seem to have recognized it yet. Other states have begun to tackle the overcriminalization problem, and Oklahoma would be wise to follow their examples.

Pushing back against overcriminalization

In order to rid the Oklahoma statutes of outdated and unnecessary crimes, the Manhattan Institute suggests creating a bipartisan legislative task force to examine changes and an independent commission to take stock of the current criminal code. Similar groups created in Tennessee, Virginia, and Kansas have led to those states repealing dozens of criminal and regulatory offences. 

Other states have also implemented the report’s third recommendation of instituting a mens rea provision for criminal law. In short, mens rea requires that a person have criminal intent to be prosecuted for most crimes (in other words, knowingly breaking the law). This is meant to prevent situations like the bacon-infused vodka episode; if the bartender did not realize that putting bacon in a bottle of vodka was illegal, he could not be prosecuted.

While mens rea reform is popular in many cases, it became the subject of much controversy during last year’s push for federal justice reform, ultimately torpedoing the effort. Department of Justice officials, along with some lawmakers, warned that the rule could make prosecuting corporations for regulatory violations nearly impossible, since it would rely on proving the criminal intent of a corporate entity.

Another to-do for Oklahoma’s justice reform list

There’s no doubt that Oklahoma’s overgrown criminal code could use some serious pruning, and lawmakers would be wise to start the process sooner rather than later. Justice reform is at the center of the political moment, but it won’t always be so. The Legislature should strike while the iron is hot.

At the same time, legislators should exercise caution when approaching mens rea reform. While ensuring that individuals aren’t prosecuted for innocuous mistakes and unknowing violations of obscure regulations, we also shouldn’t allow corporate polluters to claim ignorance when held to account. As a first step to roll back Oklahoma’s overcriminalization, a commission to reduce unnecessary regulations and laws should be popular with conservatives, progressives, and anyone who wants our criminal code to reflect common sense.