Oklahoma has the second highest incarceration rate in the country, up from fourth highest in 2012, with approximately 1,310 out of every 100,000 of our citizens incarcerated in 2014. The state appropriated $485 million to the Department of Corrections in FY 2016, but even that amount was not enough to cope with increasingly overcrowded and understaffed prisons. Meanwhile, the state’s prison population continues to grow.
With criminal justice reform again on the agenda in 2016, it is important to understand what is behind the growth in the prison population. A review of the report that provided the foundation for Oklahoma’s 2012 effort at criminal justice reform, the Justice Reinvestment Initiative, provides some important insights into what is needed to cut incarceration rates – and challenges some common misconceptions.
Drug possession is punished inconsistently
Although harsh prison sentences for minor drug crimes are often blamed for the growth in the prison population, punishments for these crimes vary widely in practice. DAs and judges can choose to sentence individuals convicted of drug possession felonies to DA supervision, probation, community sentencing, drug court, or prison, and they often use an individual’s prior criminal history to make their decision.
The way this process plays out is far from standardized. In Tulsa County, for example, 24 percent of individuals convicted of felony drug possession were sentenced to prison, 39 percent to DA supervision, 22 percent to probation, 10 percent to drug court, and 6 percent to community sentencing, according to data from 2010 cited in the JRI report.
Oklahoma does have among the harshest punishments in the nation for drug possession, and some first-offense drug possession defendants are sent to prison. Another analysis cited in the JRI report showed that 10 percent of the people sentenced to prison for drug possession between 2005 and 2010 had no prior felony convictions or misdemeanor drug convictions.
However, overall prison receptions for nonviolent offenses had been trending slightly downward from 2005 until 2014, when the Department of Corrections started moving inmates from county jails to state prisons as a cost-cutting measure.
Recidivism is very low in Oklahoma compared to other states
Gov. Fallin has set the goal of reducing the recidivism rate from 22.0 percent in 2014 to 20.1 percent in 2017, and recidivism is sometimes cited as another contributor to high incarceration rates. However, Oklahoma has among the lowest rates of individuals returning to prison after being released. This rate has already fallen from 26.4 percent in 2004-2007, when Oklahoma had the third-lowest recidivism rate of the 41 states for which data was available.
This is likely due in part to Oklahoma’s punitive sentencing structure, which puts many offenders in prison for offenses that would get them only probation or something less severe in another state. We send many people to prison who aren’t dangerous to begin with, so they are less likely to get in trouble again after they leave prison. While there is room for improvement, even a major reduction in recidivism would likely have little effect on overall incarceration levels. In fact, it’s possible that criminal justice reforms could increase Oklahoma’s recidivism rate, but that won’t be a bad thing if it’s caused by people who aren’t dangerous never going to prison in the first place.
Growth is driven by longer prison terms and low parole rates
Much of the growth in the state prison population is driven by the stacking of so-called “85 percent” offenders. Under state law, those convicted of very serious offenses like murder, armed robbery, or crimes against children must serve 85 percent of their sentences before they are eligible for release. Assuming one percent growth in prison admissions for these crimes, the prison population will grow steadily as these offenders are assured long sentences by law.
Meanwhile, the already-long sentences for serious crimes are getting longer. Between 1990 and 2009, the average time served by Oklahoma prisoners increased by 83 percent, the fourth biggest jump in the country. Drilling down further, average time served for violent crimes increased by 34 percent, property crimes by 93 percent, and drug crimes (including manufacturing, trafficking, and other serious offenses) by 122 percent. These trends don’t provide much detail about life sentences and other small but important contributors to longer terms, but they show broadly that the average person in prison stays there much longer now than he or she did two decades ago.
Once offenders are in Oklahoma prisons, the system is set up to keep them there. The JRI report points out that perversely, many offenders prefer to stay in prison than to be released on parole, where they can’t shorten their sentences with good behavior credits but are limited by onerous behavioral restrictions. This has caused more offenders to be released unsupervised and, in turn, to be more likely to reoffend.
As a result, the state stands apart from the rest of the states in its use of prison to hold offenders. The total correctional population of a state includes people incarcerated and on community supervision (probation or parole). Oklahoma ranks last in the share of its correctional population on community supervision, and is one of only three states where the share of incarcerated people is greater.
Last September, Gov. Fallin made an important policy change to allow “85 percent” offenders to earn early release credits before they serve 85 percent of their sentence. She estimated that this will shorten sentence length and save the state about $2.3 million over 18 months, but such a measure will do little to decrease the overall prison population.
Significant reductions in incarceration will require a smarter approach to both non-violent and more serious crimes
Since the growth in the prison population is driven mostly by long sentences for serious offenders, meaningfully reducing incarceration will require either reducing prison time across the board or steering a large majority of those convicted of minor drug and property crimes away from ever entering prison. The latter is the focus of both the Governor’s recommendations and the recently-announced initiative petition proposed by the Oklahomans for Criminal Justice Reform (OCJR) coalition (which includes OK Policy). The Governor’s proposal would allow prosecutors to charge first drug possession offenses as misdemeanors instead of felonies and greatly reduce mandatory sentences; OCJR’s proposal would reduce all drug possession offenses to misdemeanors. Both would increase the threshold for felony property crimes from $500 to $1,000.
These are smart reforms that could meaningfully decrease the number of offenders entering the state corrections system. But this should be only the start of Oklahoma’s renewed commitment to focusing on what works in criminal justice rather than what is most punitive. Even for violent offenders, there’s good reason to believe that graduated reentry, rather than spending all of a lengthy sentence inside prison, allows a much better chance of rehabilitation while protecting public safety and saving the state money. That means broadening the use of parole to keep ex-prisoners under supervision and make sure they develop the skills and community networks that will prevent them from committing another crime.
This year presents an opportunity for serious progress on sentencing reform, but regardless of what passes, there will be much left to do. We should hope that whatever is accomplished is seen as merely the first step to a more effective and efficient corrections system.