Three weeks before he was named the Democratic nominee for president, Joe Biden released a comprehensive criminal justice reform plan.
The President-elect proposes abolishing the federal death penalty, shutting down private prisons and incentivizing states to bring down their imprisonment rate. He also promises to expand funding for drug courts and more aggressively investigative local police departments that show a pattern of civil rights violations.
Though state and local governments are the primary funders and operators of law enforcement agencies, corrections and court systems, Biden’s administration could use federal grant money to push states towards enacting or modifying certain laws.
Here are five criminal justice issues where the Biden administration could influence policy decisions in Oklahoma:
Police Accountability and Reform
Biden’s plan for police reform centers on increased federal oversight of local law enforcement agencies.
The President-elect says he will equip the U.S. Justice Department to conduct more pattern-or-practice investigations of police departments that show a pattern of civil rights violations. The investigations, which are neither civil or criminal, look for systematic issues rather than individual officers or incidents.
“During the investigation, the division assesses whether any systemic deficiencies contribute to misconduct or enable it to persist,” a Justice Department document detailing the process reads. “A critical part of the investigation is hearing directly from community members and police officers.”
Biden also promises to establish an Independent Task Force on Prosecutorial Discretion, which would “make recommendations for tackling discrimination and other problems in our justice system.”
Biden could push Congress to again consider the George Floyd Justice in Policing Act of 2020, which passed in the House on July 25 but later stalled in the Senate. The legislation establishes a national use-of-force standard, increases use of body cameras and incentives local police departments to ban neck holds and chokeholds.
Biden is not an advocate for defunding the police. He wants to allocate federal dollars towards community policing programs and supports letting social workers and mental health experts respond to calls.
Experts are planning for a return — and in some cases, an expansion — of the Obama-era energy and climate strategy.
At the state and local level, Biden’s administration is limited to providing financial incentive for police departments to comply with U.S. Justice Department standards.
Though Oklahoma lawmakers, mostly Democrats, have introduced legislation seeking to improve police accountability over the past several years, the bills have never gained traction.
On June 10, State Rep. Monroe Nichols, D-Tulsa, announced a set of proposals aimed at increasing police accountability and setting statewide standards for local law enforcement agencies.
Nichols suggested creating an Office of Independent Monitor, which would track cases where a citizen dies while under police custody. He also proposed creating a task force that would examine training and use of force policies within local police departments.
In a June interview with Oklahoma Watch, Senate Pro Tempore Greg Treat said he and other Republicans are prepared to discuss racial injustice and police reform in the 2021 legislative session.
“I am ready to work with colleagues from across the rotunda and across the aisle on ways we can better ensure all Oklahomans are treated fairly and justly,” he said.
The Death Penalty
As the Trump administration schedules federal executions at a record rate, Biden says he will work to end capital punishment.
“Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example,” Biden’s criminal justice plan reads. “These individuals should instead serve life sentences without probation or parole.”
There are 54 inmates on federal death row, three of whom are scheduled to be executed before Biden takes office Jan. 20.
Congressional action would be necessary to abolish the federal death penalty, though Biden could issue a temporary stay of executions. At the state level, Biden would be limited to using federal grants to move states away from capital punishment.
Oklahoma could resume lethal injections by early to mid 2021, Attorney General Mike Hunter said Wednesday.
Oklahoma is one of 28 states that authorizes the death penalty, though the corrections department hasn’t carried out an execution since January 2015 due to concerns over the state’s lethal injection protocol. That is likely to change next year, as state officials have secured a supply of execution drugs.
During an Oct. 14 interim study on death penalty practices, Attorney General Mike Hunter said he expects Oklahoma to resume executions by mid-2021.
There are 46 men and one woman on Oklahoma’s death row, including 31 who have exhausted the appeals process.
Biden says his administration will immediately work to shut down 12 federal private prisons that house more than 14,000 inmates.
Critics argue that private prisons, most of which are operated by two corrections companies, CoreCivic and The GEO Group, are poorly run and financially motivated to cut corners. A 2016 Department of Justice report showed private prisons don’t maintain the same level of safety and security as state-run facilities.
The Sentencing Project, a Washington, D.C.-based criminal justice research and advocacy center, estimates 121,718 inmates nationwide are housed in private facilities. One in six Oklahoma inmates is housed in a private prison.
Oklahoma is home to one of the 12 federal private prisons, the Great Plains Correctional Facility in Hinton. The prison, which houses 1,543 medium security inmates, would close or be repurposed if Biden follows through on his plan to cut ties with private corrections companies.
One of the state’s three private facilities closes Sept. 15. The other two incarcerate 16.7% of Oklahoma’s inmates.
Biden says his administration will also push states to close their private prisons, though action could prove difficult in Oklahoma, which has relied on private prisons since the mid-1990s.
Oklahoma’s two private prisons, The Davis Correctional Facility in Holdenville and Lawton Correctional Facility, house a combined 4,300 medium and maximum security male inmates. A third private prison, the Cimarron Correctional Facility in Cushing, was vacated in late August as a cost-saving measure.
Mass decarceration appears unlikely under current state law. The state corrections department estimates its population will increase by 3.6% over the next two years before slowly declining.
As a quick fix, Oklahoma could opt to lease prisons from corrections companies and staff the facilities with state employees. Since 2016, Oklahoma has leased the North Fork Correctional Facility in Sayre from CoreCivic. The prison formerly housed inmates from California.
A “Reverse Crime Bill” will incentivize states to reduce their prison populations, Biden says.
The legislation, spearheaded by the left-leaning Brennan Center for Justice, would allocate $20 billion towards a federal grant program that rewards states who reduce their prison population by at least 7% over three years without increasing crime rates. States would be directed to use grant money on programs “shown to reduce crime or incarceration”.
“Research and results show that federal dollars play an outsize role in determining state policy,” the proposed legislation reads. “Seen as precious ‘bonus’ dollars, they often lead states to change practices to win them.”
As recently as 2018, Oklahoma had the nation’s highest imprisonment rate. A February 2020 analysis by StateImpact Oklahoma shows Oklahoma now has the nation’s third highest imprisonment rate behind Louisiana and Mississippi.
Criminal justice reform advocates have worked for several years to pass legislation that encourages decarceration, with mixed results.
Urban voters failed to show support. Use our interactive map to analyze county and precinct-level voting.
Voters in 2016 enacted State Question 780, which reclassified several drug and property offenses from felonies to misdemeanors. Oklahomans for Criminal Justice Reform led the effort to place State Question 780 on the general election ballot.
Four years later, justice reform advocates bet on State Question 805, which would have barred courts from imposing sentence enhancements on some repeat offenders. An analysis by the Oklahoma Council of Public Affairs, a right-leaning think tank, showed State Question 805 could reduce the state’s prison population by 8.5% over 10 years.
A wide swath of urban and rural voters rejected State Question 805 earlier this month. In the weeks leading up to Election Day, law enforcement and victim’s advocacy groups argued that State Question 805 was poorly written and would lead to light sentences for repeat domestic abusers and drunk drivers.
Both supporters and critics of 805 now agree the legislature needs to take action to reduce the state’s prison population in the upcoming legislative session.
Marijuana Decriminalization and Drug Possession
Biden wants to decriminalize marijuana possession nationwide and direct more funding to drug courts at the federal, state and local level.
“Biden believes that no one should be imprisoned for the use of illegal drugs alone,” Biden’s criminal justice policy plan reads. “Instead, Biden will require federal courts to divert these individuals to drug courts so they receive treatment to address their substance use disorder.”
Under Biden’s plan, the federal government would not prosecute individuals for possessing small amounts of marijuana, but could pursue charges against individuals who are suspected of selling large amounts of the drug.
Biden’s administration would not have the authority to alter state laws on marijuana use, but could issue federal guidance which advises states to decriminalize simple possession.
Oklahoma’s drug court program started in 1995 and has since expanded to 73 of 77 counties. The Oklahoma Department of Mental Health and Substance Abuse reports those who complete the program have a 7.9% re-arrest rate, much lower than drug offenders who are sent to prison.
Some reform advocates argue that drug courts are poorly constructed because they tie offenders into the criminal justice system, and they can end up incarcerated if they fail to meet demands of a treatment program. A study completed by the Drug Policy Alliance, a New York City-based nonprofit organization that supports decriminalization of all drug use, found that drug courts don’t significantly reduce incarceration.
Oklahoma policy on drug possession has evolved significantly over the past five years. State Question 780, enacted in 2016, reclassified several drug crimes from felonies to misdemeanors. Two years later, State Question 788 legalized medical marijuana use. Recreational marijuana use remains illegal, and possession of more than 1.5 ounces of marijuana is punishable by up to $1,000 fine and one year in jail.
On March 4, proponents of marijuana legalization filed State Question 811 with the Oklahoma Secretary of State’s office. The ballot initiative would have legalized marijuana use for individuals over the age of 18 and set up a framework for the state to regulate the recreational market. Organizers withdrew the initiative on March 13.
Keaton Ross is a 2020 Report for America corps member who covers prison conditions and criminal justice issues for Oklahoma Watch. Contact him at (405) 831-9753 or Kross@Oklahomawatch.org. Follow him on Twitter at @_KeatonRoss
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