Steps forward and back in criminal justice legislation this year

The Oklahoma Legislature took some important steps on criminal justice reform in the 2016 session. This progress is the result of a collaborative effort by dozens of stakeholders to reduce penalties on low-level crimes and make alternative sentencing more accessible. Unfortunately, lawmakers’ longer track record of ratcheting up sentencing and expanding the criminal code was also on display this session.

Steps forward

These are some of the positive reforms that have been signed into law:

• Mandatory minimums for drug possession were addressed in HB 2479. The bill reduces penalties for drug possession from two to ten years to a maximum of five on the first offense, a maximum of ten years on the second offense, and a minimum of four years on the third or subsequent offense.
• Lawmakers raised the felony theft threshold from $500 to $1,000 with HB 2751, a sensible and overdue reform.
• HB 2472 allows prosecutors to charge many felonies as misdemeanors if they choose to do so.
• Two measures to expand access to alternatives to incarceration passed. HB 2753 removes the requirement that drug court participants are bound for prison if not for their participation in drug court. It also expands drug court eligibility to those who are assessed as having mental health or substance abuse problems. HB 2902 allows district attorneys to make agreements with defendants to defer prosecution of drug possession charges while they complete a diversion program under the district attorney’s supervision.
• HB 2443 will extend the time that a judge can modify a sentence from 24 to 60 months.
• SB 1113 allows judges to order that law enforcement pay the legal fees for plaintiffs if a civil asset forfeiture seizure is overturned, a small step in the right direction.
• HB 2474 allows those who owe court costs to obtain provisional driver’s licenses.
• HB 3160 allows judges greater discretion to reduce or waive criminal fines and fees, while HB 3119 allows judges to reduce or waive fees for successful drug court participants.

Though these bills will likely do little to curb long-term prison population growth, they signal that the Legislature is becoming more bold in its efforts to shift to a more rational approach to criminal justice. This year’s reforms are undoubtedly more significant than the steps taken last session, but much more must be done before Oklahoma sees real progress in reducing our high incarceration levels.

Steps back

Some legislation moved the needle in reverse. Several bills expanded the criminal code or hiked already staggeringly high fines and fees:

• In the closing weeks of the session, legislators quickly introduced and approved two bills to significantly increase fees on all criminal and many civil cases, SB 1610 and HB 3220. These fee hikes will further exacerbate the already dire problem with debtor’s prisons in Oklahoma.
• HB 2320 expanded the definition of terrorism significantly, opening it up to much wider interpretation as to what can be charged as terrorism and included threats along with real acts of violence. It also requires that punishments for terrorism are added to any other sentence.
• HB 2450 increased the fine for “stolen valor,” or wearing military awards that one hasn’t earned, from $100 to $1,000.
• HB 2504 increased fines for cattle theft to three times the value of the property and allows each animal stolen to be charged as a separate crime.
• SB 1491 expands the definition of domestic abuse from three incidents of physical abuse within the last year to two incidents without any time limit. The long list of relatives and non-relatives included as potential victims of domestic violence means that the new definition could include fist fights, decades apart, between cousins.

Steps not taken

On balance, criminal justice policy will move in the right direction as a result of this year’s legislation. In addition to this year’s reforms, there were several important measures that we hope will see more success in next year’s session:

• A set of comprehensive civil asset forfeiture reform measures, including SB 1189 and SB 838, failed to be heard in committee. Recent coverage of the practice may add fuel to future reform efforts. A Washington Post story about the Muskogee County Sheriff’s Department seizing over $50,000 from a Christian band brought new attention to the practice in April and prompted a quick about-face by law enforcement. And last week, Oklahoma Watch reported about a new device that allows law enforcement to seize funds loaded onto prepaid debit cards, drawing criticism and prompting some outside the state to consider avoiding travel through Oklahoma.
• Two measures to end debtors’ prisons, HB 2383 and HB 2960, did not receive hearings either. Unfortunately, this means that Oklahomans will continue to be trapped in cycles of debt and incarceration wrought by excessive fines and fees in the criminal justice system.
• A bill to improve employment prospects for people with felony records passed the House, but it was not allowed a hearing in the Senate. HB 2585 would have created a more uniform policy for the consideration of a criminal record across occupational licensing boards.
• HB 3159, a bill meant to increase parole supervision for those leaving prison, passed the Legislature but was vetoed by Gov. Fallin. The bill would have required those convicted of “85 percent” crimes (serious crimes which require an inmate to serve at least 85 percent of his or her sentence in prison, rather than in the community on parole or probation) to be placed on the first Parole Board docket when they reach 85 percent of their sentence. This was intended to ensure that all prisoners receive a period of post-release supervision, one of several important goals of 2011’s Justice Reinvestment Act that has not been met. However, HB 3159 also would have prevented prisoners from shortening their sentences by restricting credits to 5 percent of the total time. Given the Oklahoma Pardon and Parole Board’s very low rates of granting parole, it’s likely, as Gov. Fallin explained in announcing her veto, that many would end up spending longer in prison as a result of the bill.

Forward progress should not be taken for granted, especially when criminal justice has been moving in the wrong direction for so long. However, what passed this year was relatively low-hanging fruit. Lawmakers will need to climb higher, and risk more politically, to reach the reforms that will bring true and lasting progress.

The most promising reform effort this year is occurring outside the legislature. Oklahomans for Criminal Justice Reform, a coalition of groups from across the political spectrum led by former Speaker of the House Kris Steele, is leading the charge to pass two ballot questions in November. The first, State Question 780, would reclassify simple drug possession crimes from felonies to misdemeanors; the second, State Question 781, would calculate corrections cost savings from that change and invest them in county-level substance abuse and mental health treatment programs. These are significant steps that could make a real dent in the prison population and make much-needed investments to combat the root causes of crime. If voters pass these two questions, 2016 may be remembered as a decisive turning point in criminal justice policy in Oklahoma.