February 14, 2011

Failed Reform Swells Incarceration Rates

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Rows of double-stacked bunk beds line the main floors in the housing units at Eddie Warrior Correctional Facility, a minimum-security female prison, in Taft, Oklahoma.

Tom Luker/Tulsa World

Rows of double-stacked bunk beds line the main floors in the housing units at Eddie Warrior Correctional Facility, a minimum-security female prison, in Taft, Oklahoma.

For a brief period in Oklahoma’s costly prison history, there was a determined bi-partisan effort to temper the state’s passion for locking up lawbreakers at budget-killing rates.

In 1997, at the political risk of being tagged “soft on crime,” a select legislative panel completed work on a 599-page overhaul of sentencing and criminal justice laws in an atmosphere remembered today as a model for cooperation.

“It was probably the hardest-working bipartisan committee I ever sat on, in both the Senate and the House, in my 16 years in the Legislature,” said Republican former Sen. Ged Wright of Tulsa, now a member of the Oklahoma Board of Corrections.

Former Democratic Rep. Dwayne Steidley of Claremore agreed, saying Republicans and Democrats worked together to overcome emotion and take a logical approach to controlling dangerous criminals within budget restraints.

“We wanted to make sure we had room at the inn for them and not fill up the inn with people who might not need to be there,” said Steidley, now a Rogers County district judge.

Republican Gov. Frank Keating called the Omnibus Crime Bill “bad news for criminals.” House Speaker Lloyd Benson predicted it would “bring major societal changes” and Senate President Stratton Taylor, who created the committee with former Sen. Cal Hobson in charge, dubbed 1997 “a once in a generation session.”

Its key provisions called for:

  • A detailed matrix or grid establishing punishment based on the severity of the offense and the record of the offender
  • Reducing a number of crimes to misdemeanors carrying county jail time
  • Requiring certain criminals to serve 85 percent of the sentence assessed

But a couple of years later, it was mostly a memory.

The truth-in-sentencing package, several years in the making, fell apart under attack from district attorneys, sheriffs, the once-supportive Keating and legislators who found the bill and its matrix too complex, inflexible and, for some, “soft.”

Richard Kirby, Keating’s legal advisor and delegate to the panel, said the governor initially “had a lot of hope for it.”

“Then he was beginning to hear concerns from the law enforcement community about certain aspects of it,” said Kirby, now an Oklahoma County associate district judge. “One thing I heard was that the matrix required nine felony convictions before any time in prison. I think the matrix was a problem for a lot of people. The DAs were not brought in for the first part.”

Twice delayed a year and then repealed at Keating’s urging in 1999, little was left of the bill except for a community corrections provision and the “85 percent rule,” which Hobson blames for creating prison conditions reminiscent to those that existed prior to the fiery 1973 McAlester penitentiary riot and federal seizure of the prisons in 1974.

Rather than overhaul sentencing policy, Keating put his money on private prisons with no up-front state expenditure and lower prison bed costs.

“The No. 1 clear issue I found was to go to private prisons,” he said recently.

Steidley, who began working on truth-in-sentencing soon after arriving at the Capitol in 1986, pins its undoing primarily on the DAs.

“My biggest regret was, although we consulted with the DAs, we did not bring them into the room as much as we should have,” said Steidley. “They were not boxed out, but we should have brought them into the room even if we didn’t like what they said.”

Wright is among those who agree uncompromising hardliners also put the skids on the prison sentencing reform movement.

“I really don’t think the Legislature thinks about anything but being tough on crime,” Wright said. “I never cared about that, and it probably hurt me in ’98. But sometimes you have to stand up for what is right.”

He was challenged and beaten in the 1998 Republican primary by Scott Pruitt, now Oklahoma’s attorney general.

Today’s prison population is nearly 26,000—up from about 18,000 in the mid 1990s—with another 1,500 backed up in county jails. The state’s hold on the national No. 1 rank for incarcerating women appears solid, as does its top-five ranking for men.

A 2007 independent audit by MGT of America, Inc., blamed the 85 percent rule for much of the growth.

If a judge sentences an offender to 100 years for any of a list of “deadly sins,” a convict must serve 85 years before being considered for parole. While the list has swelled from 11 offenses to more than 20, there has been no effort to shorten sentence lengths.

To do so, says Keating, “would be to trivialize the crime and be an insult to the victims.”

Yet, Keating sees the time ripe for a fresh look criminal justice with “compassion, intelligence and toughness.”

He suggested a blue-ribbon panel, perhaps headed by Lt. Gov. Todd Lamb because of his Secret Service background, could examine whether some offenses should carry civil penalties, be misdemeanors or be labeled as felonies at all.

While the push for prison reform is now gaining momentum, politicians in the 1990s were being buffeted by competing interests—on one hand the shadow of the prison riots of the 1970s and the threat of federal intervention from U.S. District Judge Luther L. Bohanon still hung over them. On the other hand, it wasn’t a good time for elected officials to vote for shorter prison sentences.

Lamonte Fields, a triple-killer on work release in 1996, put a face on danger to the public and accelerated a drive to scrap the Oklahoma Prison Capacity Emergency Act (CAP law), which had been used as a safety valve to reduce prison overcrowding since 1985.

The 1995 Murrah Building bombing that killed 168 also remained vivid in the minds of Oklahomans.

“My view hasn’t changed,” Keating said. “If a person has been convicted and sentenced, that is what will be done. That’s rather clear and unambiguous.”

The law was authored by Hobson and revised with more restrictions under Democratic Gov. David Walters. Under the CAP law, non-violent inmates received 60 days credit toward release for each 30 days served while the system was more than 95 percent full.

“We all lived in fear of Bohanon’s criticism,” Hobson said. “People were reminded of federal intervention. Crowding was back to a clearly unconstitutional situation. Keating was very critical of the CAP law and wanted it repealed. Lamonte Fields was the stiletto, but tension had been building.”

Corrections Director Larry Fields also resigned under pressure from Keating.

While the Fields’ killings “may have been a factor” in House Bill 1213’s demise, Steidley said: “I would say even if that were the case, I still think the biggest thing was that the DAs mounted a PR campaign against it in the summer and fall and we didn’t respond. We were out of session.”

There also was some resistance to getting preliminary advice from DAs, Steidley recalled, because committee members “thought they had not been very receptive to doing anything at all.”

The committee also had to keep in mind the previous federal court ruling, Steidley said. In it, Bohanon found crowding and other conditions alleged by inmate Bobby Battle violated Constitutional protection against cruel and unusual punishment. He took control of the prisons in May 1974, and the court’s intervention lasted for the most part until December 1983, although litigation continued for several years.

Rioting at the Oklahoma State Penitentiary in McAlester on July 27, 1973 left four dead and 24 buildings burned at a cost of more than $20 million. ”Big Mac” had a capacity of 1,100 but held 2,200 when the violence erupted.Oklahoma’s 27 DAs, who hold broad power over criminal justice in their districts, wanted to be in on the 1997 talks to control prison crowding but not as an afterthought, a spokesman says.

Trent Baggett had just gone to work for the District Attorneys Council in 1997 and one of his first jobs was to summarize the two-inch thick bill for DAs and their assistants.

“We wanted to be part or the discussion,” said Baggett, now acting executive coordinator of the council. “We didn’t want to go over there and be handed a 500-page bill and have them say ‘tell us what you think of it’ in an hour.

“That’s like doing a book report on ‘War and Peace’ in an hour,” he said. “It was a completely different scheme and it was very difficult to analyze.”

At that time, Oklahoma already had one form of a tough, inflexible sentence in effect: the Life-Without Parole bill, which was sponsored by Wright and passed in 1987.

Wright said he intended it to apply only to first-degree murder because at the time, some of those guilty of that crime served as little as 15 years. Over the years, the law has been modified to include first-degree rape, lewd acts with a child and trafficking in illegal drugs.

Criminals simply don’t think the way lawmakers do, Wright suggested.

“In my experience, a lot of legislators think that if you make something a felony and increase the penalty, it will be a deterrent,” Wright said. “I don’t believe, for example, if a criminal is getting ready to rob a store he’s going to think, ‘Let’s see, if I use a gun, it will mean so many more years.’”

Wright also served on the Oklahoma Sentencing Commission, a panel created in the 1997 act to review prison costs and the impact legislation had on the prison system.

“They (legislators) got tired of hearing what we had to say so they repealed it,” he said.

Howard Kurtz, an Oklahoma City University professor of sociology and justice studies, was a founder of the Oklahoma Criminal Justice Research Association made up of academics from the two big universities, along with smaller ones and private institutions.

“The Justice Department saw it as a possible model program,” Kurtz said. “Harvard University made it a finalist for an award for innovation in government.”

Researchers worked with Corrections Department Research Director Bill Chown, and “produced numbers that were very consistent with what actually did happen,” Kurtz said. “But they suffered backlash from “a really conservative movement here in Oklahoma that wanted to lock everybody up. At one time they wanted everybody to serve 85 percent for every crime.”

Now retired, Chown said DOC employees “probably, sure” did feel intimidation from legislators.

“But the DAs were another group that didn’t want it,” he said. “They were pretty much against any reform. Understandably, they were against anything that kind of limited their prerogatives. They didn’t like the grid.”

Baggett lamented that it is “a real misconception that every prosecutor is ‘hang-‘em-high and puts everyone in prison.’ It isn’t so. DAs are not like that.”

“One of the biggest causes of and responsibility for prison overcrowding is drug crime,” Baggett said. “A lot of the drug laws were created in the ’80s when drugs were really taking over, so the penalties were harsh. The problem is that it’s hard to back off those penalties and risk being branded soft on crime. “We have gone over there (the Legislature) with recommendation of reductions in drug crimes and they wouldn’t even be heard in committee.”

More than a decade later, Oklahoma’s second largest agency, the DOC, has requested a budget of $551.9 million, while the state faces a shortfall of $600 million.

  • Janet Clement

    Repeal the 85% law. Give the DA’s and judges back their control. Kick the For Profit prison business out of Oklahoma. We are paying high prices for failure. There are too many people still in prison who should have had their day in front of the parole board with a chance to get out.