Oklahoma SQ 805: Lighter sentences for career criminals

Oklahoma State Question 805 would insert a new article into the Oklahoma Constitution to ban longer sentences for repeat felony offenders. The question arises from an initiative petition.

(UPDATE: On October 30, 2020, I spoke with Jeremie Poplin, filling in for Pat Campbell on Talk Radio 1170 KFAQ, about both State Questions. Click the link to listen.)

SQ 805 is opposed by the Oklahoma Sheriffs' Association (and by both candidates for Oklahoma County Sheriff), the Oklahoma Farm Bureau, the Oklahoma Association of Chiefs of Police, the Oklahoma District Attorneys Association, and former Governor Frank Keating, who served as a U. S. Attorney and oversaw law enforcement agencies of the Departments of Treasury and Justice.

The principal opposition group, Oklahomans United Against 805 (no805.org), states that "State Question 805 (SQ805) will create a culture where crime is okay in Oklahoma by reducing penalties for career criminals. With SQ805, habitual offenders of serious crimes will spend less time in prison. These crimes range from domestic violence in the presence of a child, home burglary, to child trafficking, soliciting sex from a minor using technology, animal cruelty and more."

Here is the full text that would be inserted into the constitution if 805 were to receive a majority of the vote:

CONSTITUTION OF OKLAHOMA, ARTICLE II-A CRIMINAL HISTORY IN SENTENCING

SECTION 1. Definitions

As used in this Article:

A. "Community supervision" shall be defined as a specified period of supervision with conditions, including but not limited to parole, probation, and post-imprisonment supervision.

B. "Statutorily allowable base range of punishment" shall be defined as the range of punishment prescribed for the offense or offenses for which an individual is convicted, without the application of a statutory sentencing enhancement based on one or more former convictions.

C. "Violent felony" shall be defined as any felony offense specified in Section 571 of Title 57 of the Oklahoma Statutes as of January 1, 2020.

SECTION 2. Exclusions

This Article does not apply to, and nothing in this Article shall be construed as applying to, changing, or affecting sentences for a person who has ever been convicted of a violent felony, no matter when convicted.

SECTION 3. Range of punishment after former felony convictions

Except as provided in section 2 of this Article, a former conviction for one or more felonies shall not be used to enhance the statutorily allowable base range of punishment, including but not limited to minimum and maximum terms, for a person convicted, whether by trial or plea of guilty or nolo contendere, of a felony.

SECTION 4. Sentence modification - eligibility

Except as provided in section 2 of this Article, a person serving a sentence of incarceration or a person incarcerated pending an acceleration or revocation for a felony offense shall be eligible for sentence modification under this Article if the sentence, including any period of community supervision, for which the person is currently incarcerated satisfies the following criteria:

A. Was imposed based on a statutorily allowable base range of punishment that was enhanced based on one or more former felony convictions; and

B. Is greater than the current maximum sentence which may be imposed on a person convicted of the same felony or felonies who has not been formerly convicted of a felony.

SECTION 5. Sentence modification - initiation of proceeding

A. To initiate a proceeding for sentence modification under this Article, a person who believes that they satisfy the criteria in section 4 of this Article, henceforth known as the "petitioner," shall file a verified "application for modification" with the clerk of the court that imposed the sentence of incarceration. The Court of Criminal Appeals may prescribe the format of the application. If the court that imposed the sentence is not available, the presiding judge shall designate another judge or magistrate to rule on the application. Within thirty (30) days of the filing of the application, a period which may be extended if the court has good cause, the court shall dismiss the application pursuant to subsection B of this section or proceed pursuant to subsection C of this section.

B. If the court determines, on the basis of the application, that the petitioner does not satisfy the criteria in section 4 of this Article or has not adhered to the format of the prescribed application, it may deny the application, citing reasons for the denial, or allow the petitioner to file an amended application. Denial of the application due to technical errors shall not abridge the right of the petitioner to file a subsequent application.

C. If the court determines, on the basis of the application, that the petitioner satisfies the criteria in section 4 of this Article, then the court shall conduct a sentence modification hearing and modify the sentence in accordance with section 6 of this Article. In advance of such hearing, the court shall appoint counsel for petitioners who are indigent and notify the state. If the petitioner has a victim registered with the Department of Corrections for the sentence for which the petitioner is applying for modification, the state shall notify the victim of the sentence modification hearing.

D. The Department of Corrections shall provide support as necessary to ensure this section is implemented, including but not limited to posting information in facility common areas regarding the rights set forth under section 4 of this Article and providing timely and adequate assistance for the preparation of applications pursuant to subsection A of this section.

SECTION 6. Sentence modification - hearing

A. The sentencing modification hearing shall be held in open court. The court must accord the state, any registered victim, and the counsel for the petitioner an opportunity to make a statement with respect to any matter relevant to the question of sentence. The petitioner has the right to make a statement on his or her own behalf before the court pronounces a modified sentence.

B. During the sentencing modification hearing, the court shall reconsider the sentence for which the petitioner is currently incarcerated, without any consideration or reference to an enhancement based on one or more former felony convictions, consistent with section 3 of this Article. In reaching this determination, the court shall consider the estimated cost of the petitioner's continued incarceration to the taxpayers of the State of Oklahoma.

C. At the conclusion of the sentencing modification hearing, the court shall be empowered to modify any aspect of the original sentence. At minimum, the court shall modify the sentence to be no greater than the current maximum sentence which may be imposed on a person convicted of the same felony or felonies with no former felony convictions. The court shall not modify the sentence so that the portion of the sentence to be served in prison is greater than the remainder of the original sentence to be served in prison.

SECTION 7. Appeal to the Court of Criminal Appeals

A denial pursuant to subsection B of section 5 or a final order entered under subsection C of section 6 of this Article may be appealed by the petitioner to the Court of Criminal Appeals within sixty (60) days from the entry of the denial or final order. The appeal shall be taken in accordance with procedures implemented by the Oklahoma Court of Criminal Appeals.

SECTION 8. Implementation

This Article shall become effective on the January 1 immediately following its passage.

SECTION 9. Severability

The provisions of this Article are severable, and if any part or provision shall be void, invalid, or unconstitutional, the decision of the court shall not affect or impair any of the remaining parts or provisions of this Article, and the remaining provisions shall continue in full force and effect.

Let's walk through this. The first problem is that this is statutory language that would be enshrined in the constitution. Section 1 has a list of definitions, very common in statutes, but a signal that the text is far too specific for a constitution, which ought to address the basic structure of government, its powers and constraints, and the reserved rights of the people. The only reason this is being added to the state constitution is to prevent the legislature from easily fixing its problems and unintended consequences.

One definition in particular is problematic: "Violent felony" is not spelled out with a specific list of crimes, or left to the legislature to define and adjust as appropriate, but with a reference to a statute at a particular moment in time. The aim is to prevent the legislature from recategorizing heinous "non-violent" felonies as "violent felonies" so as to exempt them from the ban on sentence enhancements.

Here is a link to the version 57 O.S. 571 as of January 1, 2020. This list is Title 57, Prisons and Reformatories, in Chapter 8A, Although this list of crimes has already been superseded with the passage of HB3251 this year, the obsolescent list will be forever enshrined in the constitution if 805 passes.

HB3251 added the following item to the list of violent felonies in 57 O.S. 571:

aaa. domestic abuse by strangulation, domestic assault with a dangerous weapon, domestic assault and battery with a dangerous weapon, or domestic assault and battery with a deadly weapon, as provided for in Section 644 of Title 21 of the Oklahoma Statutes.

The Legislature can add dozens of violent felonies to that section of law over the years, but none of them would ever be considered violent felonies for the purpose of sentence enhancements if SQ 805 passes. Every time a wife-beater commits, for example, domestic abuse by strangulation, his previous convictions for that crime cannot be considered in sentencing him for his latest conviction. The only way to incorporate newly added crimes would be to amend the constitution in a future state question either to update "as of January 1, 2020" to a more recent date or to strike that date phrase from the constitution entirely, which would undermine the intent of SQ 805.

As you'll notice, 57 O. S. 571 is a long list of crimes with cross-references to the title and section where each crime is defined. What happens if the sections of statute mentioned in 57 O.S. 571 as of January 1, 2020 are amended by a future legislature? Are those definitions in these other statutes also frozen in time? What if a future legislature changed the definition of, say, "burglary in the first degree, as provided for in Section 1431 of Title 21 of the Oklahoma Statutes," by removing the phrase "in which there is at the time some human being," so that any act of burglary is considered violent, even if no one is at home? Would that change the definition of violent felony in new Article II-A or not?

That question would end up in the courts, which illustrates the trouble with amending the constitution with statutory language via initiative petition. However imperfect, the legislative process gives an opportunity for structural defects in legislation to be aired and remedied in committee, on the floor, and in conference between the two chambers. An initiative petition is written by the proponents, with no vetting process beyond nods from "yes men," and then it's an up-or-down vote, with no opportunity to fix problems, short of another proposed constitutional amendment.

Another problem with this hard-coded reference to statute: If you scroll down to the bottom of the most recent version of 57 O.S. 571, you'll see a list of citations, which includes court decisions which refer to the section, and it also includes other laws in other titles that refer to this list of violent felonies. I count seven references, dealing with electronic monitoring, appeals of out-of-school suspensions, criminal record expungement, and sentence enhancements. As this section of law is expanded to include additional crimes, a gap will grow between the definition of violent felony used by these other statutes and the definition, frozen in amber, used by SQ 805's new section of the state constitution.

To continue:

Section 2 uses the definition of violent felony in section 1 to exclude someone who has ever been convicted of one of those crimes from all the protections that follow.

Section 3 is the heart of the proposed constitutional change: Previous convictions "shall not be used to enhance the statutorily allowable base range of punishment." That phrase, "statutorily allowable base range of punishment," has a circular definition in Section 1: "the range of punishment prescribed for the offense or offenses for which an individual is convicted, without the application of a statutory sentencing enhancement based on one or more former convictions." This is a mess.

Sections 4 through 7 establish a procedure by which people currently in prison can have any sentence cut to what would be allowed for new convictions of first-time offenders under 805. This is the "get out of jail early" provision which would allow a career criminal to get back to work victimizing the public sooner than he would have under his original sentence.

If the sentence a career criminal is serving is longer than a sentence for a conviction today for a first time offender, the career criminal can apply for a hearing to get that sentence reduced. The judge can modify the sentence, but only downward, so the process bears no risk to the career criminal. The sentence has to be cut at least to the length of sentence for a first-time offender, but could be cut further. The career criminal is entitled to a state-paid attorney. The same court that imposed the original sentence is responsible to hear the sentence-modification request. The prosecutor, the career criminal's attorney, the career criminal himself, and the registered victim, if any, are all entitled to speak.

Once again, this is statutory language being locked into the constitution where it can't be adjusted if the procedure proves impractical. Ordinarily, a constitutional provision would establish a right or an obligation and then would direct the legislature to make laws enforcing the provision. The only nod to practicality is authorizing the Court of Criminal Appeals to design the application form.

In Section 6.B. there is this little bombshell, which hasn't received any attention:

In reaching this determination, the court shall consider the estimated cost of the petitioner's continued incarceration to the taxpayers of the State of Oklahoma.

I assume that courts may consider other factors as well, but the only factor they are mandated to consider is the cost to the taxpayer, and of course a shorter sentence will always cost the taxpayer less than a longer sentence, but there is no mandate to weigh that cost against the cost borne by the future victims of the career criminal as he returns to his life's work.

There are two reasons we lock people up: To punish the criminal and to protect the public. Shoplifting, burglary, car theft -- all these property crimes impose a tax on the public. (There are many more crimes that are affected by 805; see below for a longer list.) This tax manifests itself as higher prices, higher insurance rates, alarm monitoring fees, the cost of stronger locks and higher fences.

A more targeted tax is paid by families and small businesses that are existing on the margins: Families on the edge of poverty can't afford the protections available to wealthier Oklahomans, which makes them targets of opportunity for career criminals to take what little they have. Likewise, small retailers pay a greater price for theft, and are less able than the big chains to afford surveillance or pass on losses to consumers.

There's a social tax, too: The knowledge that career criminals are living among us and that the legal system no longer cares about protecting us from them, will only make Oklahomans more suspicious and less trusting of one another.

The proponents of 805 care nothing about these impacts. They care only that predators are allowed to roam free. In one social media exchange, a vocal proponent of 805 stated that, rather than protect women by imposing long sentences for domestic abusers, women should be taught how to hide money and escape from their abusers. With wild animals, we know we should avoid certain wild areas, should carry repellent sprays if we have to venture into those areas. The mindset behind 805 says that some people are just predatory, and because we live in their habitat, we must expect them to victimize us. It's nature's way, as Steve Irwin used to say about snakes and crocodiles.

Some may object to the term "career criminal," but many of the serious crimes that will be affected by SQ 805 are the sorts of crimes that people pursue as a way to make a dishonest living. 805 would reduce the consequences for their choice of a career.

Section 8 allows a career criminal who didn't to get the sentence reduction he wanted to appeal the decision to the Court of Criminal Appeals, the highest court in Oklahoma that deals with criminal cases. This remedy isn't available to prosecutors acting on behalf of the public or to victims, just to the career criminal.

Section 9 has a severability clause, which anticipates the possibility that the court might strike down part or all of this new constitutional language as unconstitutional, which is through-the-looking-glass weird. Severability is normal in a statute, completely inappropriate in constitutional language. It's particularly inappropriate in this case: If Section 1 or 2 were declared unconstitutional, the remainder of this new constitutional amendment would be meaningless.

I am voting no. There may well be a strong case regarding specific crimes for reducing sentences, or expanding diversion programs, or substituting restitution for incarceration, but the right way to address those questions is through the legislative process, where many voices can weigh in, as proposals are filtered through committees and the floor of each house, with public hearings and amendments, not through a poorly crafted, unvetted bit of legislation embedded permanently in our constitution.

Government's first responsibility is to protect citizens, particularly those who lack the resources to protect themselves, from evildoers who choose to victimize others as a way to make a living.

UPDATE 2020/10/30: I'm told that 805 proponents claim that the legislature could, if they choose, expand the sentence range for crimes not on the list in 57 O. S. 571 and thus impose the same sentences that are currently possible. If that's so, what's the point of 805? This is another example of the sloppy thoughtlessness behind 805, and why criminal justice reform needs to be a legislative process involving consultation with law enforcement, prosecutors, corrections officials, and criminologists. The RESTORE Task Force established by Gov. Stitt needs time to finish its work, but 805 threatens to undo this careful approach.

MORE ON SQ 805:

On Facebook, No805 has been posting the rap sheets of criminals who would get out of jail much sooner if 805 passes.

The Repeal SQ780 Facebook page provides frequent examples of the failures of Oklahoma's previous attempts at "criminal justice reform."

Other advocates provide more detail on the long list of serious crimes that are left off of the "violent felony" list that SQ 805 establishes and the likely effects:

Association of Oklahoma Narcotics Enforcers:

Incredibly, the advocates of State Question 805 would have our citizens believe that those currently sentenced to these crimes actually serve out their sentences despite the fact that every one of these criminals are eligible for parole after serving 25% of their sentence. In fact, habitual criminals know very well that they will only serve a small fraction of their sentence, with even a smaller portion spent behind bars. A significant segment of our "inmates" in Oklahoma are actually living at home attached to a GPS monitor or residing at a halfway house. It is important to note that in the last two years Oklahoma's prison population has actually decreased 17.7 percent and the prison overcrowding narrative is a manufactured crisis not based in reality. Promises of purported savings to fund benevolent programs are of the oldest, and most oft used, propaganda techniques that appear when promoting a questionable legislative effort.

What crime we do experience is committed by a small number of individuals. For instance, when a community experiences 100 burglaries, that does not in any way represent 100 separate burglars, but a very small number of thieves stealing over and over again. It is this repetitive and habitual offender that police and prosecutors should focus their efforts and resources, but State Question 805 does nothing more than provide a legal sanctuary for these habitual defendants who cause so much havoc in our communities.

These theories urging the reduction of law enforcement did not originate around here, but are part of spurious intellectual ideas offered by special interest groups with no experience dealing with criminals who victimize citizens. To illustrate the horrendous impact State Question 805 would have, simply pick a city where the law is not being enforced and evaluate just how that city is doing. If police and prosecutors are stripped of their ability to target habitual offenders, Oklahoma would experience the public safety chaos currently seen in America's coasts. Our citizens, our children, and our victims deserve better.

Oklahoma Sheriffs' Association:

With SQ805, habitual offenders of serious crimes will spend less time in prison, and put them back on the streets where they can continue committing crimes like home burglaries, child trafficking, soliciting sex from minors using technology, animal cruelty and domestic violence; just to name a few.

While proponents of 805 claim it only applies to non-violent offences, many horrible crimes against people and animals are classified as non-violent, creating a pass for the perpetrators of these heinous crimes, because each crime has the same sentence range as a first time offense....

As Oklahoma's constitutionally duly elected Sheriffs, we urge all Oklahomans to Vote "NO" on SQ 805 and protect Oklahoma children from super predators. We ask citizens to vote "NO" on SQ 805 and keep our homes and private property safe from repeat career criminals who would break into our homes, and steal our property; who would steal our identities and cause us financial hardship, and who would commit acts of Indecent Exposure, hate crimes based on Race, Religion, Sexual Orientation; and those who would commit acts of Negligent Homicide.

SQ 805 would also be retroactive, and would mandate the reduction of sentences of convicted criminals currently serving time in prison, disregarding the decisions of the juries and judges who handed out those sentences.

Oklahoma Farm Bureau:

With longstanding policy that calls for strong penalties on agricultural crimes, OKFB opposes the measure due to concerns over its potential impact in rural communities, specifically with the theft of livestock and farm or ranch equipment.

"For decades, Farm Bureau members have stood for protecting property rights and promoting public safety," said OKFB President Rodd Moesel. "Unfortunately, those of us in agriculture are all too familiar with cattle theft and other property crimes that can cost our farm families thousands of dollars. A no vote on State Question 805 will protect the safety of our treasured rural communities by ensuring habitual offenders continue to be punished appropriately."

OKFB is joined in the coalition by other statewide agricultural organizations including Oklahoma Cattlemen's Association.

Oklahoma Association of Chiefs of Police:

The OACP believes that SQ805 actually does not do anything to protect our citizens from being victimized of crimes, but gives credit to people who commit those crimes to say that there are no consequences to recommitting multiple crimes. When the proponents of SQ805 talk about non-violent offenses, take time to understand what is meant. Please hear the warning from our membership that treating career criminals as first-time offenders will do nothing but embolden those who seek to take property and safety away from our hardworking and honest citizens. Our members do not profit by having people in jail, but we do see the effects of allowing people to reoffend without fear of serious penalties.

We are also very leery of yet another change to the State Constitution. By making changes such as this, we take away the ability of our duly elected representatives to make corrections and to minimize unintended consequences. If the proposition of SQ805 is good and the will of the people, so be it; but leave the option of mitigating damage to our criminal justice system if it is found to be a faulty concept after we have all had time to see the short and long-term effects.

Oklahoma District Attorneys Association:

"Painting longtime criminal offenders as if they are first-time offenders is not only dishonest, it is a disservice to Oklahomans who are trying to decipher just how bad the policy behind SQ 805 is going to be," said Marsee. "Today, we challenge the proponents to release the FULL records of the criminals featured in their ad, so Oklahomans can decide for themselves how many crimes are too many before a judge or jury determines they are a menace to society."

Former Governor Frank Keating, who served as a U. S. Attorney and oversaw law enforcement agencies of the Departments of Treasury and Justice:

Let's look at examples. Repeat drunk drivers who have caused injury. Incest. Trafficking in children. Hate crimes. Stalking and violation of protective orders. Drug distribution.

How many times can a criminal do these? As many as they wish. Each time, they will be treated as a first offender.

I have been an FBI agent, a state prosecutor and U.S. attorney in Tulsa. I supervised the federal criminal prosecutions in the U.S. as well as all of the U.S. attorneys and most of the federal law enforcement agencies, including the U.S. prison system. Proposed State Question 805 is a stay-out-of-jail free card.

There is always room for reform but not SQ 805. It will result in more criminal activity and more victims. We must not add to the girth of our constitution with this one-size-fits-all experiment. If 805 passes, it cannot be amended by any Legislature at any time.

State Question 805 is terrible public policy.