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February 13, 2020

Oklahoma ballot initiative (State Question 805) seeks to block non-violent prior convictions from enhancing statutory range of punishment

Thanks to an ACLU event, I just learned that Oklahoma criminal justice reform advocates are working toward bringing a fascinating (and potentially far-reaching) new reform proposal directly to the voters.  This local press piece from a few weeks ago explains the basics:

Criminal justice reform advocates want to amend the Oklahoma Constitution to prohibit sentence enhancements based on previous felonies for nonviolent offenders. The measure would also allow nonviolent offenders serving enhanced sentences to seek a modification in court.

“A former conviction for one or more felonies shall not be used to enhance the statutorily allowable 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,” reads the proposed measure [which is available here].  I This measure would not apply to those who have been convicted of a violent felony as defined by Oklahoma Statutes. This includes assault, battery, murder, manslaughter, kidnapping, child abuse, rape and human trafficking.

Oklahomans for Sentencing Reform, a bipartisan coalition championing the measure, filed the petition in November and began collecting signatures [in December]. State Question 805 requires nearly 178,000 signatures by 5 p.m. March 26 to be put to a statewide vote in 2020.

“The reality is that Oklahoma has an incarceration crisis,” said Kris Steele, executive director of Oklahomans for Criminal Justice Reform (OCJR). “We have the second-highest incarceration rate per capita of any state in the United States, and we have the highest female incarceration rate in the nation. Unfortunately, we’ve held that distinction since 1991, and the disparity in the number of women we incarcerate continues to grow.”

According to a 2019 report by FWD.us, Oklahoma sends more people to prison than other states, especially for nonviolent crimes, and keeps them incarcerated for much longer. Eight in 10 women go to prison for nonviolent offenses. “Research has shown these long stays in prison have little or no effect on recidivism when people come home,” reads the report. “At the same time, these extra weeks, months and years place emotional and financial burdens on the families of those incarcerated.”

Proponents of the initiative say the state’s incarceration crisis is driven in large part by enhanced sentences, and they hope momentum from recent criminal justice reforms help the initiative succeed. “We’ve been working on responsible criminal justice reform for over a decade, and the good news is that support among voters continues to grow,” Steele said. “We have seen some tremendous momentum in recent years, and we are hoping to build on that momentum and deepen the conversation level of understanding and support statewide for a more effective approach to public safety.”

Gov. Kevin Stitt has publicly opposed the initiative, saying a constitutional amendment is the wrong way to go about criminal justice reform. Steele argues that a constitutional amendment would prevent lawmakers from trying to repeal the measure if approved by voters. He cited an attempt to repeal State Questions 780 and 781 only months after they were approved in November 2016....

District attorneys across the state have also publicly opposed the measure, saying it would negatively impact public safety. But proponents of the measure disagree because they don’t see many positives outcomes from the state’s high incarceration rates.

Some of the concerns of DAs are expressed in this local opinion piece authored by Jason Hicks, President of the Oklahoma District Attorneys Association, under the headline "Proposed state question could affect domestic violence sentencing."  Meanwhile, the  "Yes on 805" campaign has this website, but not a lot of details about 

I have no sense of whether proponents of this interesting initiative will be able to get it to voters, nor do I have any sense of whether Oklahoma voters might be supportive of this proposal.  But I think those troubled by mass incarceration, extreme sentencing terms and racially disparate sentencing practices are wise to focus criticism on the often out-sized impact of (even minor) criminal history at sentencing.  I do not know if this Oklahoma ballot initiative might be just the start of a whole new front for sentencing reform efforts, but I hope it can help generate a robust discussion of the many important issues that relate to the use of criminal history at sentencing.

February 13, 2020 at 11:04 AM | Permalink

Comments

Yes, Americans need to have a LOT of discussion of the many important issues that relate to the use of criminal history at sentencing. A project at my Law School has been examining these issues since 2013 -- https://robinainstitute.umn.edu/areas-expertise/criminal-history-enhancements The most recent report coming out of this project is my book with Julian Roberts, Paying For The Past: The Case Against Prior Record Sentence Enhancements (Oxford Univ. Press 2019).

Posted by: Richard Frase | Feb 14, 2020 11:47:58 PM

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