Task force calls for reducing sentences for drug crimes
Faced with a rapidly growing prison population in a state with the second-highest incarceration rate in the nation, a task force created by Oklahoma Gov. Mary Fallin issued a report Thursday calling for dramatic decreases in sentences for nonviolent drug dealers and manufacturers.
Without reform, Oklahoma is on pace to add 7,218 inmates over the next 10 years, requiring three new prisons and costing the state an additional $1.9 billion in capital expenditures and operating costs, the report said.
But task members said those costs can be averted and the prison population can be reduced 7 percent over the next decade through a combination of sentence reductions and other reforms, including increased funding for alternative mental health and substance abuse treatment programs.
Oklahoma currently has 61,385 individuals in its overcrowded prison system.
That includes 26,581 incarcerated in state facilities and private prisons, 1,643 awaiting transfer from county jails and 33,161 on some form of probation, parole, community sentencing or GPS monitoring, said
Terri Watkins, spokeswoman for the Department of Corrections.
Oklahoma’s prison population, which is at 109 percent of capacity, has grown 9 percent in the past five years and is now 78 percent higher than the national average. Only Louisiana has a higher rate, the report said.
Oklahoma’s female incarceration rate remains the highest in the nation, a distinction the state has held for 25 years, task members said. The state’s female population grew 30 percent between 2011 and 2016 and Oklahoma now incarcerates women at a rate more than 2 ½ times the national average.
In a 38-page report that contains 27 recommendations, the governor’s task force on justice reform recommends a number of dramatic changes to stave off a looming state financial crisis, including sharply reducing sentences for nonviolent drug dealers and manufacturers.
The report also calls for sweeping changes in the parole system, including allowing many inmates to become eligible for parole after serving a fourth of their sentences. Currently, inmates typically serve about a third of their sentences before becoming eligible for parole for most nonviolent crimes.
Many of the task force’s recommendations would require legislative action.
The task force is recommending that the penalty for possession of methamphetamine, heroin or crack cocaine with intent to distribute be lowered to zero to five years for nonviolent first-time felony drug offenders, said Jennifer Chance, the governor’s general counsel and a member of the task force. It is recommending that the penalty for manufacturing be lowered to zero to eight years.
Possession of methamphetamine with intent to distribute currently carries a sentence of two years to life in prison for a firsttime felony drug conviction, while possession of crack cocaine with intent to distribute carries a term of five years to life and heroin seven years to life.
Prison overcrowding
Oklahoma’s criminal justice system has exacerbated the state’s prison crowding crisis by repeatedly sentencing more nonviolent offenders — particularly drug offenders — to longer terms than neighboring states like Texas and Missouri, the report says.
Many states have been far ahead of Oklahoma in reforming their justice systems, the task force found.
“Since 2010, 31 states across the country have decreased imprisonment rates while reducing crime rates,” the report states.
Reducing Oklahoma prison sentences for nonviolent drug crimes is critical to reversing those trends because nearly a third of all Oklahoma prison admissions are for drug crimes and those prison sentences are often lengthy, the task force said.
Chance said most of the 21 task force members were in agreement with the group’s findings, but acknowledged that the two district attorneys on the panel, David Prater and Mike Fields, have strong disagreements with some of the report’s recommendations.
Prater is the chief prosecutor for Oklahoma County, while Fields is the chief prosecutor for Canadian, Garfield, Blaine, Grant and Kingfisher counties and president of the Oklahoma District Attorneys Association.
Prater said there are many things he likes about the report, which includes recommendations such as expanding programs and outpatient treatment options for individuals leaving prison and reentering the community and providing funding for additional licensed clinicians to provide substance abuse and mental health treatment.
However, Prater said he doesn’t anticipate that the Legislature will provide meaningful new funding for those types of initiatives during the current budget crisis.
If the state cuts prison sentences for drug manufacturing, distributing and trafficking without dramatically increasing funding for drug addiction treatment programs, Prater predicted it will lead to more home and auto break-ins and other crimes.
“This is such a dishonest report,” Prater said. “It’s going to make Oklahoma a much more dangerous place.”
Prater said the report’s backers like to point to Texas as a state that has simultaneously reduced its incarceration and crime rates through similar justice reforms, but he noted that Texas appropriated $241 million up front in 2007 to pay for a package of prison alternatives that included more intermediate sanctions and substance abuse treatment beds, drug courts and mental illness treatment slots.
Unless Oklahoma dramatically increases upfront funding for substance abuse treatment and parole supervision programs, the state’s experience is more likely to parallel that of Utah, Prater said.
That state drastically cut sentences without providing sufficient funding for community programs and police officers and judges there have complained about offenders repeatedly being released out on the street with little or no supervision, he said.
Critics of Utah’s reform efforts have cited the January 2016 slaying of Unified police officer Doug Barney as a reason for re-evaluating changes that were made. Barney’s shooter, Corey Henderson, went through the revolving door of prison and many have argued he shouldn’t have been out of jail when Barney was killed.
“They (criminals) are stuck with relatively minor penalties, and they continue to reoffend,” Jeff Buhman, Utah County Attorney, told the Daily Herald in Provo, Utah, last April. “The only way to see if this can be a successful model is if you fund it ... The legislature knew that and it has not been funded adequately.”
The Oklahoma attorney general’s office was noncommittal about the report.
“The attorney general’s office was invited to take part in the Oklahoma Justice Reform Task Force, and members of our team were in attendance,” Lincoln Ferguson, spokesman for Atty. Gen. Scott Pruitt, said in a prepared statement. “The AG’s office takes no position on the merits or demerits of the proposal.”
Mental health funding
Task force member Terri White, commissioner of the Oklahoma Department of Mental Health and Substance Abuse Services, said the report’s recommendation for additional funding for mental health and substance abuse treatment programs is critical to the success of the proposed reforms.
About $50 million a year in additional money is needed to fund an array of mental health and substance abuse programs, she said.
A program that screens offenders for the likelihood that they will commit additional crimes and determines whether they are good candidates for mental health and substance abuse treatment diversion programs needs to be expanded from 37 counties to statewide, she said.
Drug courts and mental health courts also need to be expanded and made available to all offenders who would benefit from them, and substance abuse and mental health treatment services need to be available to people on probation and supervision, she said.
Even is the Legislature chooses not to enact the prison sentence reduction reforms, “the Legislature could and should fund mental health and substance abuse treatment because it is the key to keeping people out of the criminal justice system who are nonviolent, low risk offenders,” White said. “But by doing these reforms, they would have more funds available to them to make this investment.”
“It is significantly less expensive and more effective to provide treatment than to incarcerate someone who is a low risk offender, but is struggling with mental health or substance abuse issues,” she said.
“It costs $2,000 a year, on average, per person for outpatient mental health and substance abuse services,” White said. “If someone needs a more intensive program, like a drug court program, it’s about $5,000 a year per person. Prison is $19,000 a year per person ... It’s pretty simple math.”
White said the outcomes with treatment also are significantly better, with only about 7 percent of drug court graduates going back to prison, compared to about 23 percent of inmates who serve their full time in prison for the same crimes. The high cost of building and operating prisons to support Oklahoma’s expanding prison population has prompted a strong push to reform Oklahoma’s justice system.
Justice system reforms
In November, Oklahomans passed two ballot initiatives designed to help ease the problem.
State Question 780 made certain low-level crimes misdemeanors rather than felonies, including simple drug possession and theft of items valued at less than $1,000. State Question 781 calls for using the money saved by incarcerating less people to help fund drug treatment and mental health programs to address root causes of crime.
The governor’s task force report goes further in recommending prison sentence reductions for some drug and property crimes that are considered more serious.
In addition to reducing sentences for drug manufacturing and distribution, the task force is advocating reducing sentences for drug trafficking crimes and establishing a tiered penalty structure with the length of potential sentences determined by the amount of drugs involved.
Drug trafficking currently carries a penalty of up to life in prison.
The task force is recommending a sentence of zero to 10 years for trafficking in 10 to 28 grams of heroin; 20 to 200 grams of methamphetamine; 28 to 300 grams of cocaine or crack; or 25 to 100 pounds of marijuana. Under the proposal, the stiffest penalty of 5 to 25 years would be reserved for drug traffickers caught with at least 250 grams of heroin; 450 grams of methamphetamine, cocaine or crack; or 500 pounds of marijuana.
The task force also is recommending an increase in the number of classifications for burglary and a reduction in sentencing ranges.
The penalty for theft from a vending machine would be reduced to zero to 30 days under the proposal and the crime would become a misdemeanor if less than $1,000 is stolen. Burglary of an automobile or outbuilding would carry a penalty of zero to three years, a residential burglary with no person present would have a penalty of zero to seven years and a home invasion where a person was present would have a sentence of four to 20 years.
Many of the proposed changes could be a tough sell with the Legislature, where bills already have been introduced to reverse some of the leniency measures
approved by voters.
Other recommendations
Other task force recommendations include:
• Allow judges to modify sentences of inmates sentenced to life without parole for nonviolent crimes after the offenders have served at least 10 years. Judges would be authorized to modify such sentences to life or less, making the offenders eligible for parole at some point.
• Permit nonviolent drug offenders who currently are required to serve 85 percent of their sentences before becoming eligible for release to be placed under electronic monitoring supervision after 70 percent of their sentences have been served. This would impact certain inmates convicted under aggravated trafficking and aggravated manufacturing laws.
• Revise Oklahoma’s habitual offender statute so that individuals convicted of nonviolent crimes who have nonviolent histories can only have their sentences increased by a maximum of 25 percent.
• Lower penalties for 24 low-level property crimes and create a tiered penalty structure based on value.
• Create a special parole option for long-term, geriatric inmates.
• Establish a graduated system of swift, certain and proportional sanctions to be imposed for technical parole violations that must be exhausted before resorting to the parole revocation process.
• Establish a system that allows offenders on parole or probation to earn credits for complying with the terms of their supervision. The credits could be used to get off probation early or reduce the terms of their suspended sentences.
• Reduce financial barriers that inhibit former inmates from successfully re-entering society. The task force makes several recommendations to accomplish this, including requiring courts to defer payments of fines and fees for the first six months after release from prison. The panel also recommends establishing a realistic payment plan for anyone who requests it that would limit payments to 10 percent of discretionary income, with discretionary income defined as income in excess of 150 percent of the federal poverty line.
• Expand access to alternatives to incarceration such as drug court, community sentencing and deferred and suspended sentences.
• Establish a certificate of rehabilitation and an expungement process for offenders who successfully complete their terms of supervision.
• Expand the list of offenses for which judges can depart from minimum sentencing guidelines to include any nonviolent offense.
• Create an administrative parole process for nonviolent offenders that allows them to be released without hearings unless they have failed to follow their case plans or have committed violent offenses.
• Alter minimum qualifications of pardon and parole board members to require them to have at least five years of training or experience in parole, probation, corrections, law, law enforcement, psychology, psychiatry, sociology or social work. At least two members would be required to have five years of training and/or experience in clinical psychology, substance abuse services or social work. Training would be required to include evidence-based practices for recidivism reduction.
• Make the parole process more transparent and establish general parole eligibility at 25 percent of sentence completion.
• Expand eligibility and affordability of the GPS electronic monitoring system for offenders being reintegrated into communities.
• Create an oversight council to monitor the progress of criminal justice reforms and recommend future reforms.
• Enhance the state’s ability to collect and report data necessary to track the effectiveness of policy changes.
• Use savings from justice reforms approved by voters in November to establish a re-entry fund, with money distributed proportionally to counties across the state to support programs that reduce recidivism.
• Provide enhanced training for judges, district attorneys, law enforcement officers, Pardon and Parole Board members, and probation and parole officers regarding best evidence-based practices.
• Enhance programming and treatment options for inmates and those on supervision.
• Improve access to and enforcement of victim protective orders for victims of domestic violence.