The debate over a proposal to standardize Oklahoma’s complex criminal code is heating up, with justice reform advocates arguing it would cause the state prison population to creep up over the next decade.
Unlike most states, including neighboring Kansas and Arkansas, Oklahoma doesn’t classify felonies by severity. Lawmakers have instead opted to add and remove crimes and their sentencing ranges individually, resulting in a winding list of offenses in the Oklahoma Statutes.
Last month the Attorney General’s Criminal Justice Reclassification Coordination Council finalized its plan to categorize all felonies into an easier-to-understand matrix. A group of 22 state lawmakers, prosecutors, law enforcement agency officials and a retired judge have served on the task force since 2018.
Task force members say the classification system would make it easier for defendants, jurors and the general public to grasp the state’s criminal code. It would also allow prosecutors and defense attorneys to more simply calculate how long a person sentenced to prison would have to serve before becoming eligible for release, they argue.
Criminal justice reform proponents warn that the plan could result in longer prison stays for some, particularly those convicted of lower-level drug and property crimes, and increase the burden on taxpayers.
Lawmakers will consider the proposal when the legislature reconvenes in February. Here’s how it could impact criminal justice in Oklahoma:
What Does the Coordination Council’s Plan Look Like?
Their plan calls for all felony offenses to be ranked by severity and placed into 14 categories.
Each category has its own sentencing range and minimum time served requirement. Defendants with prior felony convictions would face longer sentences and required prison time.
For example, a first-time offender convicted of third-degree burglary, a D1 felony, would receive a sentence of 0-5 years and be required to serve at least 20% of the term behind bars. A defendant with two or more prior felonies would receive a sentence of 2-10 years and have to serve at least 30% of their sentence behind bars.
The classification system would provide more certainty to prosecutors looking to ensure a person spends a certain amount of time incarcerated, task force members argue. Most state prisoners earn time-served credits for good behavior and program participation, but the accumulation of these credits varies based on their security level placement and behavior while incarcerated.
“I want to stress, the purpose is some certainty,” said Oklahoma County Chief Public Defender Bob Ravitz, a task force member, during an Oct. 5 interim study on sentencing reform. “Our sentencing code in Oklahoma, for the 40 years I’ve been practicing, has been a total mishmash.”
While the proposal sets a minimum time served requirement for all prisoners, their release date will still be impacted by the accumulation of good behavior and program participation credits.
Felicity Rose, a criminal justice policy analyst for FWD.us, told lawmakers that most state prisoners convicted of nonviolent crimes serve an average of 35-50% of their court-mandated sentence before being released. The expected release date for most prisoners would not change significantly under the proposal, but more offenders could be subject to mandatory prison time, Rose said.
“It’s not going to be an easy ‘everybody gets out at this time’ thing,” Rose said. “And that’s actually a good thing. We don’t want too much certainty in a system because people don’t have any incentives.”
How Would it Impact Judges?
While sentencing ranges for some crimes would be adjusted slightly, judges would still be able to consider mitigating and aggravating circumstances when considering a sentence.
Most sentencing ranges would remain relatively broad. For example, the proposed sentencing range for a class C1 felony with no priors is 0-10 years.
“We felt it was really important that judges in individual cases have the ability to have an outlier, either over or under, realizing that most people are going to fall in the average range,” Deputy Assistant Attorney General Lori Carter said.
How Would it Impact the State Prison Population?
The coordination council was instructed to make recommendations that would “reduce or hold neutral the prison population.” Whether or not that will happen depends on who you ask.
The Oklahoma Department of Corrections predicts the average criminal sentence would decrease by six months and the state prison population would decline by about 900 over the next decade. The agency noted that it could take up to 45 years for the full impact of the law to be seen. Its report analyzed six crimes that comprise about 25% of the state prison population.
FWD.us found that the state’s prison population would increase by about 1,000 over the next decade if the changes are implemented, with much of the increase coming from nonviolent offenders subject to minimum time served requirements. Its analysis was more comprehensive, looking at 50 crimes covering 90% of the state prison population.
Is the Plan Retroactive?
No. All sentences handed down prior to the implementation of the classification system would stand, even if the sentencing range has changed.
What Other Recommendations Did the Classification Council Make?
The task force was broadly instructed to “recommended other appropriate changes to improve the criminal justice system in Oklahoma and ensure the public safety of its citizens.”
They said the legislature should allocate funds to expand mental health treatment and create a statewide data exchange program that tracks prisoners from their intake to release.
Other suggestions include:
- Boost funding for re-entry and post-incarceration supervision programs
- Expand juvenile drug courts and mental health courts
- Provide a certificate of rehabilitation to prisoners who successfully complete their sentence
The legislature will consider the proposal next session. Lawmakers could pass it as is, alter parts of it or reject it altogether.
State Sen. Darrell Weaver, R-Moore, stressed during the Oct. 5 hearing that lawmakers will have to compromise if they want the bill to pass.
“If we’re looking for perfection on something this heavy, this robust, I would submit to you that we’ll never get there,” said Weaver, who served on the task force.
Keaton Ross is a Report for America corps member who covers democracy for Oklahoma Watch. Contact him at (405) 831-9753 or Kross@Oklahomawatch.org. Follow him on Twitter at @_KeatonRoss.