(Edited for length and clarity)
Oklahoma Watch journalists discuss their recent and upcoming stories: Keaton Ross on a proposal to automate record expungement for minor, non-violent offenders; Whitney Bryen on Oklahoma County’s drug court; and Mike Sherman on Sunshine Week and government transparency. Ted Streuli hosts.
Can Oklahoma Simplify Expungement?
Ted Streuli: Welcome to Long Story Short, sponsored by the Kirkpatrick Foundation. I’m Ted Streuli, the executive director at Oklahoma Watch. We’re a statewide nonprofit news organization that specializes in investigative reporting. You are listening to our weekly podcast, which lets you hear directly from our journalists as they provide deeper insight into their recently published stories. This week, I’m with Keaton Ross who covers criminal justice for Oklahoma Watch. He’s been looking into the possibility of Oklahoma using technology to make expungement more accessible. Keaton, what makes the expungement process in Oklahoma so complex?
Keaton Ross: Right now it requires a lot of filing paperwork and coordinating several different agencies. It could be the police, the court system, the prosecutor’s office. They all have to be coordinated and contacted and that requires a lot of time and legal expertise. So it’s a very difficult process to complete without the assistance of a lawyer.
Ted Streuli: So does that mean most people aren’t even trying to seal their criminal records?
Keaton Ross: That’s correct. The Oklahoma Policy Institute looked into it and estimated that about 93.5% of expungement eligible records have not been sealed. So those people are missing out on the benefits of expungement, where it can make it easier to find a job, a place to live, those sorts of things.
Ted Streuli: And there’s a piece of legislation that’s been proposed that might address that. What is House Bill 3316? What would that do?
Keaton Ross: It would create an automatic expungement system, basically a computer algorithm that identifies cases that meet the expungement criteria. And it would automatically start that process. Each agency would be contacted, given the opportunity to object and if they don’t object, it would go to a judge who signs off on it. And it would require no money or effort on the part of the person who had that record.
Ted Streuli: How long would it take to get that kind of sort of automated system in place?
Keaton Ross: We’d be looking at about one to two years, just getting all of the technology set up and the system built out. It obviously requires a lot of coordination with several different people, but in other states that have done this, it’s taken about one to two years.
Ted Streuli: Do we have any idea what that would cost.?
Keaton Ross: So the estimated cost to get it set up is around $3 million to $5 million. And then afterward you’re looking at some additional funds for maintenance and keeping it set up. Some people I talked to for my most recent story on expungement mentioned that the state could use American Rescue Plan dollars to fund this system. Soit would go at the cost of the federal taxpayer and not the state.
A proposal before the Oklahoma Legislature would create a system identifying criminal case eligible for expungement and automating a record-clearing process.
Ted Streuli: There are some other states that you found that have passed similar expungement reforms. Have they run into any problems or issues?
Keaton Ross: Not any major issues. I know looking into the subject, Utah had some issues with outstanding fines and fees muddying up the process and that was something they had to get around and pass new legislation on. But the experts I spoke to say they don’t anticipate that would be a major impediment if Oklahoma gets this system set up. So once you take the time to get it going, it should be smooth sailing
Ted Streuli: Who’s opposed to the bill?
Keaton Ross: There haven’t been any major opponents that have come out thus far. It’s been interesting from a policy standpoint. We’ve seen a coalition of conservative and more left-leaning groups come out and voice support for this bill. So it will be interesting to see how it plays out when it goes for a vote in the House.
Ted Streuli: If this were to pass and, and the governor were to sign it, who, who would really benefit?
Keaton Ross: People with aging, misdemeanor convictions or nonviolent felony convictions. Per state law, there’s a waiting period that has to elapse after your sentence ended. For some lower-level misdemeanors, that’s one year. For your more serious misdemeanors or lower-level felonies, that’s five years where you haven’t been convicted of a new crime and there are no charges pending. So these are going to be folks that had an interaction with the justice system previously but have since stayed out of trouble.
Ted Streuli: So some incentive there to kind of curtail any recidivism issues. That’s part of the package?
Keaton Ross: Correct. That’s the hope, that it would help out with recidivism as well as getting more people back into the economy and into better-paying jobs.
A Day In Drug Court
Ted Streuli: In this segment, I’m talking to Whitney Bryen who covers vulnerability for Oklahoma Watch. Last week, she spent some time observing Oklahoma County’s drug court. Whitney, what piqued your curiosity about drug court?
Whitney Bryen: Well, I’ve covered similar specialized dockets, things like mental health court, for instance. So I was familiar with the process, but I actually met the judge for the Oklahoma County drug court at an event last month. He was talking about diversion programs and an attempt to reduce the prison population through those programs and invited me to come and watch his court.
Ted Streuli: And that would be the ironically named Ken Stoner, who runs drug court. Did what did you see in his courtroom?
Whitney Bryen: That’s right. Judge Stoner, that is his actual name. A lot of folks get a kick out of that. He had about 19 participants in his morning session that day and about 24 that afternoon. So overall, more than 40 people (were) coming through the courtroom. He begins both sessions with sort of some words of encouragement about the recovery process and how it’s not just about being sober. It’s about the whole of efforts that you’re putting in to making your life better and following these rules. He calls each participant up, one by one, and as they approach the bench, they announce how many days they’ve been sober. The entire courtroom applauds, whether they had one day or 848 days. The judge then asks how they’re doing, what went wrong. Maybe hands down a sanction if they messed up. And really no one gets a pass in this courtroom. Everyone gets a sanction if they miss something, though there were also some happy moments. We saw some graduations that day and some people phasing up to the next point in the system.
Ted Streuli: Tell us a little about the participants. Is it limited only to people who were charged with possession or, or other drug-related crimes?
Whitney Bryen: It’s not actually, a lot of these folks do have some sort of drug or possession charge, but a lot of times the charge that leads them to drug court is not a drug charge. Now it can be something like a DUI or a drug charge. But a lot of times it’s a misdemeanor or a felony that’s not necessarily related to drugs, but maybe drugs led them to that situation. Judge Stoner describes these folks as sort of on their last leg. This is their last chance before prison. If they fail out of drug court, that’s typically where they end up. These folks have been struggling with sobriety for years and have typically been in and out of the prison system.
Ted Streuli: What are some of the requirements for the participants of drug court? What do they have to do to graduate?
Whitney Bryen: There are quite a few requirements actually, and it takes a really long time — at least 18 months to get through the program. So during that time, folks have to have a drug or alcohol test at least 10 times a month. And every time they do that, it costs them $10 per test. So that’s been the biggest hurdle for a lot of folks getting physically to the test and then being able to pay for those tests in earlier phases of the program. Newer folks, they have to show up to court once a week and that can take a couple of hours. So that’s another big time commitment. They have to get a job. They have to go to treatment or some sort of recovery program like AA. It’s really a very intensive program.
Ted Streuli: What happens if they miss some of those steps or don’t meet all those requirements?
Whitney Bryen: In Judge Stoner’s courtroom, they always get a sanction. No one is immune to that. And sanctions can range from something fairly easy — newbies, for instance, who are just learning the process, they often get court observations. So basically they have to come back to another day of court when they are not one of the defendants and observe and watch and learn from what other people are doing. He also handed down a couple of essays, asked people to write what they learned from their mistakes. He gave some hours of community service to folks who missed a drug test. In one case, I spoke to a man who actually ended up getting two days in jail because he had relapsed again and missed several drug tests and lied about it. And so that gets harsher and harsher penalties from Judge Stoner. The worst-case scenario for a lot of folks is six months in DOC (Department of Corrections), and I did meet a few people who were just coming back from that. And, of course, you can get kicked out if this happens too many times.
Ted Streuli Tell us a little more about the guy who runs this — Judge Stoner. Who is he?
Whitney Bryen: Well, he’s been a prosecutor, a defense attorney, a corporate lawyer. He’s kind of been all over the place when it comes to his work as an attorney. And he told me he never actually aspired to be a judge, but he saw this problem with people struggling with substance abuse in his positions as both a prosecutor and a defense attorney. And he felt like he could make a difference. He felt like he could fix this problem, or at least make it a lot better. And he compares it to a traffic jam on I-40. When you’re sitting bumper to bumper, the way he saw the courts working was they were trying to remove the one car in front of you so that you could continue down the road. But as we all know, from being in a traffic jam, there’s more than one car that needs to be moved in order to really get going. So that’s his goal is to remove all of those cars out of your way so that you can then get where you’re going
Ted Streuli: And drug court works differently than most district courts, right? The prosecutor and the defense attorneys and some of the treatment providers aren’t really on a side in an adversarial role, like we see in a typical trial courtroom, are they?
Whitney Bryen: That’s right. They are all working together. In fact, they’re all sitting at one big table in this courtroom talking to each other, talking to the judge throughout the process. It’s a very open and transparent process for defendants who are standing often in between those people who are having the conversations about how that treatment is going. Well, if they’re really making a lot of efforts that certainly plays into the DA’s decision about whether to allow them to continue through the process of drug court or whether they’re not putting in the efforts and it’s time to kick them out of drug court and go through the sentencing process.
Ted Streuli: And it seems to me that, at least with Judge Stoner, his interest in the topic and his past for this is not limited to sitting on the bench in his courtroom. He participates in a lot of sobriety events and a lot of community activities around sobriety and drug treatment. Did you get a sense of that while you were there?
Whitney Bryen: That’s right. One of the defendants I spoke to in the hallway before the morning session told me that Judge Stoner dressed up as Santa Claus for a Christmas party for drug court participants this year. And he said that was just one example of the events and places and involvement that he sees Judge Stoner participating.
Ted Streuli: Oklahoma County isn’t the only place in Oklahoma that has drug court. How many of our 77 counties have similar programs?
Whitney Bryen: About 73 counties in the state have drug court, but everyone, regardless of what county they live in has access to a drug court. In some cases, especially up in the panhandle, that’s just in a neighboring county. So it may require a little bit of a further drive to get there, but it is an option for everyone in the state.
Why Sunshine Week is Worth Celebrating
Ted Streuli: In this segment of Long Story short, I’m talking to Mike Sherman, the executive editor at Oklahoma Watch, and we’re talking about Sunshine Week, which comes up in the middle of March every year. Mike, can you just start us off? Tell us a little about what Sunshine Week is.
Mike Sherman: It’s a celebration and a highlight of open records, transparency in government throughout the nation. Newspapers, media groups, TV stations engage in it. It really is a celebration of the people’s right to know, and that these records — public records, public meeting — they’re not a special privilege of the media. They belong to us all.
Ted Streuli: And now not all access to public records entails official requests using the Oklahoma Open Records Act, but there’s a great disparity between how state and local agencies approach the spirit of the open records act. One of our reporters Lionel Ramos encountered that disparity while he was reporting a recent story on how immigration laws are policed in Oklahoma. What, what did he find?
Mike Sherman: Lionel is our Report for America corps member. He’s one of three on the staff at Oklahoma Watch and he covers race and equity issues for us. So he was really interested in how immigration is being enforced and was looking at the data. There’s a really good source of that data at Syracuse University, which has a huge reservoir. But that data is reported up from the state and local agencies to the federal government. And what he found was that Immigration and Customs Enforcement detentions are way down, but there’s a disparity in how they’re reported in Oklahoma. Tulsa county, for instance. Tthe sheriff there he’s the son of Mexican immigrants. He was very sensitive to criticism that his sheriff’s department was rounding up people for routine traffic stops and holding them in ICE detention. So he released the data. You can get this today. It’s on their website, a roster of people who are in detention in Tulsa. Elsewhere, Canadian County, over in El Reno, you can’t get that information. Canadian County has, is not reported to ice and has some pretty strict rules for public records — 20 an hour for a search of records, 25 cents a page. It’s not easy to get and it’s not even available. So that’s just in our own state. It shows you how different the approach is to living up to the letter and spirit of the open records law.
Ted Streuli: Now, Oklahoma Watch has a staff of people who are really championing the cause for the public’s right to these records and to this information, which the public owns. We even have a spreadsheet in the office that everybody contributes tracking all the active open records requests, the ones that have been fulfilled and so forth. One of those staff members is Whitney Bryen who covers issues facing vulnerable Oklahomans. How have those public records affected her reporting?
Mike Sherman: Well, there’s been a real evolution of information coming out. Nursing homes, inspections of COVID information, right at the start of the pandemic, I’d say three or four months into it, Whitney was focused on the inspection data and really looked hard at the places where there were the most COVID cases and really how their inspection violations piled up. A very shocking finding really at the 10 nursing homes and long-term care facilities that had the most cases, and there were zero violations and 95 deaths. And it was only through her dogged pursuit of that data and those records that Oklahomans could know that , and really have an idea of the harm levels and all nursing homes, but where the harm was most acute. She stayed with that and really championed the public’s right to know what’s going on inside of nursing home. Tthe state health department has even altered its approach to releasing nursing home data, changed it at Whitney’s urging. And there’s another recent change coming up that she’ll be writing about during Sunshine Week.
Ted Streuli: Our education reporter, Jennifer Palmer has certainly championed the cause of transparency, given the mounds of data and records that state and local schools and their school boards generate. What’s her next place to dig?
Mike Sherman Well, you refer to that spreadsheet that we keep track of ongoing and unfulfilled old open records requests of Oklahoma Watch — Jennifer’s like the clubhouse leader for our staff in requesting those. And so her next one, though, is a little different. She is writing about a champion of transparency within the government. That’s Cindy Byrd, the state Auditor and Inspector. She’s been in that post since 2019. Last month, her office released an audit of the State Health Department after the attorney general insisted that the report should be kept secret. And that audit of COVID spending found that more than $5 million had been spent on items the state has never received. And prepayments were made in violation of the state constitution. Byrd is somebody who thinks this is both her legal and ethical responsibility to get this stuff in the public’s hands. You might also remember her for the way she and her office uncovered tens of millions of dollars in misspending at the state’s largest charter school, Epic Charter Schools. So Jennifer’s doing a story on how Cindy Byrd sees her role in all this.
Ted Streuli Now out of the Capitol, the government body that wrote the open records act is now considering bills that could limit the act itself and, and how the laws applied in Oklahoma. What are some of those proposals to restrict public access to public records?
Mike Sherman: Trevor brown, our democracy reporter is on that case. And one of those bills it’s House Bill 3475 would allow agencies to deny requests if that request produces “an excessive disruption in producing public records or on the public body.” In other words, if it’s too hard for them to do, or if the custodia of those records has a reason to believe that these requests were made repeatedly and were intended to disrupt their other business. There’s several proposals that would expand the state’s open meeting records laws, but that didn’t survive last year’s (legislative cutoff) so they’re taking another pass. This one is by House Minority Leader Emily Virgin, and has one aspect that that would’ve made the state’s legislature subject to the state’s open records act
Ted Streuli: There’s a bit of recent irony involving the core of Oklahoma’s Open Records Act. What’s that all about?
Mike Sherman: Well, the state attorney general last week said he was joining several other Republican attorney generals in suing the Biden administration under the federal Freedom of Information Act. These attorney generals, they want internal records of discussions over the proper use of law enforcement authorities to monitor allegations of intimidation or violence at local school board meetings. So Oklahoma’s Attorney General John O’Connor and these other 13 attorneys generals said the didn’t receive replies to their FOIA request within 30 days. And that timeline sort of raises an interesting issue. Seeing how many Oklahoma public records requests, many of them take much longer to be fulfilled than 30 days. And the state’s open meeting laws say they have to be fulfilled in prompt and reasonable amount of time. That’s standard’s a little loose, but it’s just interesting that on one hand, the state attorney general is having a hard time making sure state agencies fulfill these requests and is suing the federal government on the other hand.
Ted Streuli: Mike, you mentioned this earlier in this segment of Long Story Short that the government transparency laws in Oklahoma, the Oklahoma Open Records act and the open meetings act and federally the freedom of information act and, and its companion open meetings act — these are not devices that are conveniences for journalists, right? These laws are meant to give the public access to records that they’ve paid for to be created that they’ve paid to have stored that are there that are owned by the public meetings where public business is being conducted. Taxpayer money is being spent and and Sunshine Week really is an effort to remind people that these laws exist to make sure that the public’s business remains available to them.
Mike Sherman: Yeah, it is. And Ted, this is something you’ve championed. Of course, you’re former president of FOI Oklahoma. You’ve really instilled this in our organization. And I think one of the things I love the most about it is the open records act in Oklahoma says anyone, anyone can request this information. Anyone may, and to state the purpose. The law says you don’t have to tell them why you want the records. You just want the records. So it’s really up to us to champion this and show the public how they can do it too. Last year, I loved it when Whitney Bryen did a video showing people how they could access the state Health Department’s inspection records for nursing homes. So we just need to make it more and more possible for Oklahomans to be able to see through and into their government.