OKPOLICY.ORG
I’m a big fan of Attorney General Gentner Drummond, but I wish he hadn’t called for the resignation of the judge who recently sentenced Brent Swadley to probation. Drummond is unhappy because the judge suspended the jury’s recommended sentence. Swadley was found guilty of cheating Oklahoma taxpayers out of $1.2 million.
I don’t blame the Attorney General for being upset. He spent more than three years fighting a team of undoubtedly well-compensated defense lawyers in a contentious, complicated white-collar fraud case to secure a conviction. White-collar offenders often get away with a lot more money and a lot less punishment than those found guilty of so-called “street crimes.”
But I think Drummond could have considered a broader perspective: The jury didn’t hear all the evidence the judge did. Oklahoma is one of only five states that have jury sentencing; the others are Arkansas, Missouri, Texas, and Kentucky. In the remaining 45 states and federal courts, juries determine guilt or innocence, but judges impose the sentence after considering aggravating and mitigating evidence.
Oklahoma law, however, has an anomaly: it is the only state where juries return the verdict and sentence at the same time. Because jurors decide guilt and punishment simultaneously, they may not hear mitigating evidence that could support a more lenient sentence unless it is relevant to the offense itself or a defense.
Oklahoma is also one of only three states where juries cannot recommend probation. In a few cases where juries have tried to recommend probation, the Oklahoma Court of Criminal Appeals has interpreted our statutes to say that a jury’s recommendation to suspend the sentence is surplusage and does not form part of the verdict. As a result, juries don’t get the full picture at sentencing, and they don’t have the full range of punishment options.
Although the Court of Criminal Appeals has held that judges — not juries — decide whether to suspend a sentence, Oklahoma has developed a culture in which judges are expected to follow the jury’s recommendation or risk accusations of wrongdoing. They rarely depart from it.
Each of the six counts in the Swadley case carried a maximum sentence of five years, exposing him to as many as 30 years’ imprisonment. Instead, the jury recommended five years on one count and one year on each of the other five, for a total of 10 years. They could have recommended less, but they didn’t exactly throw the book at him either, which doesn’t offer any certainty as to what they would have done had they been allowed to consider probation.
The judge ordered Swadley to serve the five-year term and one one-year term consecutively, with the remaining four one-year terms running concurrently, resulting in a fully suspended six-year sentence. She also considered the 144 days Swadley had spent in the Oklahoma County jail awaiting trial.
The record reflects that mitigating evidence was presented to the judge at sentencing. Whether you agree with the judge’s decision in the Swadley case or not, it was her decision, and it took a fair amount of courage to make it. She must have felt strongly it was the right thing to do. No one can say whether the jury would have recommended suspending the sentence had it been allowed to hear the same evidence and make that recommendation.
The expectation that judges automatically follow jury sentencing recommendations reinforces the notion that defendants who exercise their right to a jury trial have “rolled the dice” and must accept whatever punishment the jury imposes. In many cases, this effectively denies defendants a meaningful opportunity for a jury trial.
Jury sentences are wildly unpredictable. Treating the judge’s role in sentencing as a mere functionary who receives and formalizes the jury’s sentencing recommendation often pressures an innocent defendant to plead guilty in exchange for the chance to get probation.
The Legislature should empower juries by allowing them to hear sentencing-relevant evidence and consider a probationary sentence in their deliberations on punishment. Then the Attorney General’s assertion that “the jury thoroughly reviewed all the evidence” would be accurate.
