Culture of Incarceration Threatened to Bankrupt State
Sentencing reform laws approved during the 2018 Oklahoma legislative session roll back decades of sentencing policy that has crowded Oklahoma prisons with people serving long sentences for non-violent property crimes and drug crimes.
The new laws target a trend that could otherwise push to the breaking point pressures a burgeoning prison population puts on state budgets already crimped by revenue shortfalls.
Oklahoma relies largely on notoriously volatile global oil prices for public revenue. Oil prices have gyrated between a low under $20 a barrel to a high of more than $160 a barrel in recent decades. The price plummeted from more than $111 in 2014 to around $30 in 2016.
In that uncertain revenue environment, the Department of Corrections budget competes with, among other services, public safety and education agencies. Something had to be done.
The Race to the Bottom
Oklahoma has long held the dubious distinction of being among the leading prison states nationwide. Oklahoma already incarcerates more women per capita than any other state. We could call it last place in terms of keeping state residents on the right side of the law.
After several years in the number two spot, Oklahoma this year could bump Louisiana out of the top spot for number of residents incarcerated per capita, the Tulsa World reported. The trends are based on 2016 statistics from the US Dept. of Justice, which is the most recent nationwide DOJ data available.
Several bills Gov. Mary Fallin signed into law after the 2018 legislative session seek to reverse the trend toward growing incarceration rates. In addition to broadly reforming sentencing policies, the new laws reduce some of the post-conviction hurdles that can make it difficult to break cycles of poverty and stigma associated with a criminal conviction.
Further, beyond reforms that moderate sentencing, probation and parole laws, the new laws also provide new opportunities for those convicted of crimes to participate in rehabilitation programs. Gov. Mary Fallin said the reforms target offenses typical of individuals with substance abuse problems. All of these laws take effect Nov. 1, 2018.
Non-Violent Habitual Offender Penalties Reduced
Senate Bill 649 removes previous felony drug possession convictions as a reason that prosecutors can seek sentence enhancements. The new law also reduces sentence enhancements for recidivism in non-violent crimes. A petty larceny conviction after a prior felony conviction will be a simple misdemeanor – no longer a felony with penalties as long as five years in prison.
Where two or more convictions for certain crimes can result in possible life sentences under current law, newly revised laws sets aside nine offenses for which a sentence after a first conviction can be no more than double the maximum sentence for a first conviction.
Those offenses newly reduced to no more than twice the maximum first-conviction penalty on subsequent convictions include:
- Counterfeiting (Okla. Stat. tit. 21 § 1592)
- Receiving or knowingly concealing stolen property (Okla. Stat. tit. 21 § 1713)
- False personation (Okla. Stat. tit. 21 § 1531)
- Unauthorized use of a motor vehicle (Okla. Stat. tit. 47 § 4-102)
- Grand larceny (Okla. Stat. tit. 21 § 1705)
- False declaration of ownership to a pawnbroker (Okla. Stat. tit. 59 § 1512)
- Second degree forgery (Okla. Stat. tit. 21 § 1577)
- Receiving, possessing or knowingly concealing a stolen vehicle (Okla. Stat. tit. 47 § 4-103)
- Larceny of merchandise from a retailer (Okla. Stat. tit. 21 § 1731)
Sentence Modifications for Prison Lifers
Senate Bill 689 allows those sentenced to life without parole to petition for a sentence modification after serving 10 years of their sentence. A reduced sentence could not be less than at least 25 percent of the mandatory term for that offense.
Prosecution of Probation Violations Moderated
The new law also prohibits extension of probation for individuals who cannot afford to pay fines, fees or other costs, not including restitution. An extended term of probation may only be imposed upon a court’s finding that the person willfully refused to pay fines, fees or costs.
New conditions are also imposed for revocation of suspended sentences related to technical violations. Suspended sentences may not be entirely revoked on the basis of technical violations. Where a district attorney does persuade a court to revoke based on a technical violation, incarceration would be limited to six months on the first violation and five years for subsequent convictions.
Technical violations are defined as violations of court imposed terms of probation. Non-technical violations for which a suspended sentence could still be entirely revoked include:
- committing a new crime,
- falsifying or failing drug and alcohol tests,
- failing to pay restitution,
- tampering with an electronic monitoring device (aka “ankle bracelet”),
- failing to report for more than 60 days,
- unlawfully contacting a victim or criminal associate,
- more than five technical violations in 90 days or
- violation of sex offender rules.
DNA Testing for Misdemeanor Gun Crimes
While SB689 allows life sentences to be reduced and sets limits on how post-conviction supervision can be revoked, it also adds new misdemeanor offenses to the list of crimes that trigger possible DNA testing. Individuals convicted of unlawful carry of firearm, illegal transport of a firearm and discharging a firearm may be required to submit to DNA testing.
Burglary Penalties Reduced
Other changes enacted during the 2018 legislative session reduce mandatory minimum sentences for second-degree burglary, which is burglary from buildings or unoccupied dwellings. A newly categorized crime of third-degree burglary — which is burglary from autos, trucks trailers and other vehicles — has a maximum sentence of five years. (SB786)
Life Sentences Stricken from Most Drug Crimes
Changes in drug distribution penalties eliminate potential life sentences for several non-trafficking drug crimes. Only on a third offense for possession with intent to distribute, manufacturing or distribution of drugs can life imprisonment be imposed. Trafficking generally involves larger quantities of drugs.
Mandatory minimum sentences for possession with intent, manufacture or distribution are removed. Maximum first offense sentences are seven years for Schedule I or Schedule II drugs except marijuana, or five years for marijuana and drugs classified as Schedule III, IV and V. First-offense penalties for manufacturing non-trafficking quantiles of drugs are capped at 10 years. (SB793)
Newly Tiered Property Crime Penalties
Also after Nov. 1, 2018, when HB2281 takes effect penalties for several Oklahoma property crimes will be tied to the value of property misappropriated. Those crimes include:
- warehouse fraud,
- embezzlement,
- false personation,
- swindles or con games (obtaining property by trick or deception),
- bogus checks,
- forgery or counterfeiting (including checks or bank notes, loan documents, contracts or agreements, financial instruments, coins,
- theft of lost property
- grand larceny
- receiving stolen property
- vehicle theft
- retail theft
- receipt or possession of a stolen vehicle
- false declaration of ownership in pledges for pawn
Parole Requirements Reduced
For those previously convicted or convicted under new laws, parole will likely be easier to pursue, sooner, with greater likelihood of being granted parole. Those convicted of non-violent offenses committed before Nov. 1, 2018 will be eligible to seek parole after serving 1/3 of their sentence. Those convicted for crimes committed after that date will be eligible after serving ¼ of their sentence or consecutive sentences.
For every five years of a sentence on a non-violent offense, a person will be eligible for parole about 5 months sooner under the new law.
Parole for non-violent offenses will no longer be entirely at the discretion of the parole board, but must be granted if the person has complied with rehabilitation plans, a victim does not object and the person has not committed particular prison infractions during specified periods prior to the parole hearing. (HB2286)
Sentence Reform Long Overdue
Nationwide, prison populations increased dramatically between 1980 and a peak in 2009. Nearly five times as many people were behind bars in 2009 as those incarcerated in 1980.
Incarceration has since dropped by about 5 percent nationwide, but Oklahoma was anticipating a 25 percent increase in prison populations in the next eight years. The 2018 sentencing reforms could reverse the trend toward increasing numbers of Oklahoma residents behind bars.
Tulsa Criminal Defense Lawyers Offer Strategy Session
In addition to changes we previously explained in Oklahoma expungement laws, these sweeping changes in Oklahoma’s sentencing and parole laws significantly affect how individuals facing criminal charges may decide to settle their case.
With so much new law in effect, it is important that a person facing charges have a Oklahoma criminal defense attorney review the new law in light of the particular facts of each criminal charge.
For a initial strategy consultation and case evaluation with a criminal defense lawyer in Tulsa, Okla., contact Wirth Law Office at (918) 879-1681 or email your question using the form at the top of this page.
