The concept of legal certainty embodies one of the most basic requirements for the rule of law. Legal philosophers and international bodies alike recognize society’s need for a predictable system of laws so that those who live under the law can regulate their conduct with certainty.
Sociologists provide scientific support for the idea that individuals and groups seek congruity and coherence in the way we perceive our world. They call it cognitive consistency. Legal certainty supports cognitive consistency. For many people, consistency reduces frustration that otherwise can contribute to behaviors the law seeks to prevent.
It’s against this fundamental background – our basic need for consistency and certainty – that we raise an interesting question about what is a felony under Oklahoma law. At first glance, Oklahoma statutes appear to be very straightforward about what is a felony. Beneath the surface, conflicting definitions are anything but certain.
Oklahoma Felony Definition
Oklahoma’s Crimes and Punishments title states:
Crimes are divided into:
1. Felonies;
2. Misdemeanors.
Simple enough. All we need is a definition for each type of crime. That appears next, in Section 5 of Oklahoma Statutes – Definition of a Felony:
A felony is a crime which is, or may be, punishable with death, or by imprisonment in the penitentiary.
Section 6 is Definition of a Misdemeanor:
Every other crime is a misdemeanor.
So far, so good. Lawmakers who codified those definitions in 1910 made certain they explained their laws in simple, consistent terms. From there, the Oklahoma felony definition got a bit weird.
Section 11 of the same chapter is labeled Specific Statutes in Other Chapters as Governing – Acts Punishable in Different Ways.
A more descriptive title could be “Wiggle Room.” Section 11, first codified in 1987, starts with one of those phrases that make laymen cringe and lawyers rich:
If there be in any other provision of the laws of this state a provision making any specific act or omission criminal and providing the punishment therefor, and there be in this title any provision or section making the same act or omission a criminal offense or prescribing the punishment therefor, that offense and the punishment thereof, shall be governed by the special provisions made in relation thereto, and not by the provisions of this title.
Dealing with exceptions is an important part of law. But that’s no reason for lawmakers to avoid structuring simple laws according to simple principles – especially when it comes to two basic types of crime. The section that first dilutes the definition of felonies doesn’t once reference the term “felony.” Here’s where we get down to brass tacks.
So What is an Oklahoma Felony?
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In at least eight specific Oklahoma crimes, a felony these days is punishable by up to a year in county jail. That’s contrary to the Title 21 definition of felonies as crimes that can send a person to prison.
Shoplifting merchandise worth more than $500 but less than $1,000 is a felony, but punishable by a up to a year in county jail. Grand larceny in some cases is a felony, punishable by up to a year in county jail. The same goes for theft of gasoline worth between $500 and $1,000, writing bad checks, theft of domestic animals and a few types of fraud in that same range. One exception is car rentals – a person who writes a bad check for more than $20 and less than $500 to rent a vehicle can land in county jail for a year on a felony conviction – including a $21 felony.
It would seem to be a simple enough matter for lawmakers of our time to accept the 1910 definition of misdemeanors and felonies, then create categories of crime that fall neatly into either definition. Repeated misdemeanors could become felonies — as they already are in many cases. Many states — as does the United States Code — define classes of misdemeanors and classes of felonies. That’s not the approach Oklahoma lawmakers have chosen.
In a crowded justice system where those who can afford effective representation enjoy considerably more equality under the law, legislators have left it to astute lawyers and the courts to figure out what is a felony and what is a misdemeanor. For a layperson who endeavors to read Oklahoma’s definition of a felony, there’s no certainty. And the confusion isn’t limited to those few exceptions. It gets worse.
Thus far, we have felonies defined as any crime for which a person can be sent to prison instead of county jail, except those felonies where a person can be sent to county jail. That ambiguity surrounding county-jail felonies is problematic enough. Next comes the part about enhanced penalties for repeat offenders. It’s a “three strikes” law.
An argument could be contrived that under Oklahoma’s three strikes law a person who on two occasions bounces a $21 check to rent a moving truck, on a third similar offense – after serving two short stints in county jail on the earlier offenses – could be sentenced to life in prison.
We would like to hope Oklahoma prosecutors would have better sense than to lock someone in jail for life on such petty offenses. Prosecutors haven’t always been that forgiving. One Tulsa man who was convicted of accessory to murder for knocking on a victim’s door when he was 13 years old is serving a life sentence in prison.
It’s difficult to understand why nationwide car rental companies need such unusual protection from people who write bad checks for a day’s rental, nor why any series of crimes for which our state doesn’t find prison justified would graduate an offender from county jail to life in prison without intermediary stages. Those who commit petty crimes are often the ones least able to understand an inconsistent scale of justice that graduates petty offenders from county jail to long prison sentences. Legal uncertainty adds to the confusion of their uncertain lives.
Community Sentencing Tempers Felony Convictions
Oklahoma lawmakers have on some occasions mustered the wisdom to allow courts to mitigate the impact of criminal convictions in nonviolent crimes. Another exception to the felony-means-prison definition is found in a law that allows judges to sentence those convicted of nonviolent felonies to serve nights and weekends in county jail. The Community Sentencing Act of 1999 allows judges to sentence anyone convicted of a felony and not otherwise sentenced to death to suspended sentencing, with up to six month to be served in county jail.
Community sentencing implies that we as a community are determined to salvage those among us who stray from the path, if they will make an effort to rehabilitate their behavior. But how is that consistent with a system that lets judges sentence violent offenders to county jail, yet can send minor offenders who run afoul of the law once too often to do hard time in state prisons, potentially for life?
Can our lawmakers not codify a truly graduated sentencing system – a system that increases penalties in proportion to the damage crimes do, instead of laws based on simple disdain for people who require more community effort than others to guide them toward the straight and narrow?
Or maybe Oklahoma’s definition of what is a felony and what is a misdemeanor got tangled up as legislators fell over themselves convincing voters they were the get-toughest-on-crime candidate. Who knows. But how hard would it be for legislators to just let misdemeanors be misdemeanors and felonies be felonies? Why not just strike from the books language that doesn’t come any where close to describing the difference between a felony and a misdemeanor, if that’s not really what we mean?
It’s plain to see the simple language of 21 O.S. Chapter 1, Section 5 is obsolete. The rambling except-as-otherwise-stated clause at 21 O.S. Chapter 1, Section 11 adds little or no certainty to the definition of a felony. In the context of this summary analysis, we can’t offer an easy way for lawmakers to untangle the web they’ve woven around the definition of felonies. There’s at least an opportunity for a legislative committee to spend several months debating the matter. In the mean time, Oklahoma’s convoluted definition of a felony can keep the bad guys guessing – which is exactly contrary to the principle of legal certainty.
Strategy Session: Tulsa Criminal Defense Attorney
If you’ve been charged with a misdemeanor or a felony in Tulsa, you should avoid playing guessing games with prosecutors. You’ll need the assistance of a skilled Tulsa criminal defense attorney. To schedule your initial strategy session with a Wirth Law Office criminal defense attorney in Tulsa, call (918) 879-1681, or submit a written question through the form at the top right side of this page.
