Oklahoma AG Opinion: Post-Imprisonment Supervision is Unconstitutional
About two years ago I started working on a project for the Director of the Department of Corrections (DOC) to send to the Office of the Oklahoma Attorney General a request seeking an official opinion concerning Oklahoma's Post-Imprisonment Supervision laws. The laws on post-imprisonment supervision are vague. They lack what one would expect to find with laws that subject a person to additional supervision following release from prison and subject one to the risk of further incarceration. The laws also lack any guidance or resemblance of instruction to the agency (DOC) tasked with their enforcement. As a result, DOC sought clarification from the Office of the Attorney General through an official opinion. As General Counsel, I drafted the specific questions and was tasked with providing a written legal opinion to accompany the request for the Attorney General opinion. The request was submitted about a year-and-a-half ago, and today, the opinion was finally issued.1
Many of the questions presented to the Office of the Attorney General were technical, legal questions concerning how DOC is to go about calculating a sentence and applying credits to someone with a term of post-imprisonment supervision that has been revoked, sanctioned, or ordered to run consecutive to another sentence. The most important question, however, simply had to do with whether the laws violate the separation of powers doctrine (and thus, the Oklahoma Constitution) by requiring DOC to set the terms and conditions with which the person on post-imprisonment supervision must comply. Setting the terms and conditions of probation is generally something that only the sentencing court has the authority to do. So, is post-imprisonment supervision really any different? The answer is no. It is not. It is the role of the sentencing court (judiciary) and not DOC (an agency of the executive branch) to set the rules and conditions of post-imprisonment supervision. Therefore, the Attorney General Opinion concludes that the post-imprisonment supervision laws violate the separation of powers doctrine and are therefore run afoul of the Oklahoma Constitution.
What does this mean? Opinions of the Attorney General that determine a state statute violates the constitution are considered to be advisory only. So, DOC does not have to follow the opinion of the Attorney General here and can continue setting the terms and conditions of post-imprisonment supervision (as the statutes expressly state) until a court rules otherwise. On the other hand, DOC can follow the guidance of the opinion and stop enforcement of an unconstitutional statute. I bet most, if not all, current offenders on post-imprisonment supervision (and not on probation or parole) will have their files closed by DOC. I also expect DOC will not instruct any inmates being released with only post-imprisonment to report to a probation and parole office. Only time will tell what the courts will do - whether the courts will stop ordering post-imprisonment supervision or whether the courts will try to cure the constitutional deficiencies prior to any legislative action. The Legislature needs to take a close look at this during the next session. Not just to cure the constitutional deficiencies, but to see what was working and what was not working. They need to talk to probation officers, prosecutors, defense attorneys, and the courts, and either get rid of the whole concept of post-imprisonment supervision (as something separate and distinct from probation and parole) or enact something that has a chance to work.
Anyone currently serving a revocation or sanction from a term of post-imprisonment supervision who has more than a month remaining on his or her sentence should seek assistance from an attorney to file a petition for a writ of habeas corpus or application post-conviction.
The opinion can be downloaded here.