• David A. Cincotta

SENTENCE ENHANCEMENT IN A BROKEN SYSTEM - IS SQ 805 THE FIX?

In the late 1990s, Oklahoma instituted a lazy method of determining the number of years a defendant can be sent to prison for violating its laws a second or subsequent time. Oklahoma courts do not utilize sentencing guidelines. Instead, the Legislature gives the courts a range of punishment (often an incredibly broad range) to sentence those found guilty of committing a crime. What makes Oklahoma’s method lazy is how it enhances sentences based on prior convictions.

The Legislature creates the laws that determine what conduct is unlawful, and it prescribes the punishment for illegal behavior. The Legislature defers to juries and the courts to determine the exact sentence for each guilty offender, within the broad punishment ranges that it provides. The Legislature also grants prosecutors the power to invoke (or allege) prior felony convictions to enhance the range of punishment.[1] Upon the enhancement kicking in, the range of punishment often no longer resembles anything tailored to the appropriate penalty for the crime committed. Instead of developing sentencing guidelines that increase the appropriate sentence in small increments based on prior convictions and other matrices, the Legislature provided a one-size-fits-all approach that drastically increases the punishment range based on prior convictions. Sentence enhancement can increase the range of punishment to life in prison for a crime that initially carried less than ten years. This is why sentences in Oklahoma are so incredibly inconsistent and often bear no relationship to the crime committed.


To illustrate this point, here are three crimes with the range of punishment with and without enhancement:



As you can see, the initial range of punishment is broad but not near as much as the enhanced range of punishment. This article is not an advocation for ignoring prior convictions in sentencing. Prior convictions are necessary for evaluating the appropriate penalty. However, prior convictions should not result in the lifting of the ceiling. The maximum punishment range should not increase. Instead, individuals with prior convictions should receive a sentence under the original range of punishment – a more accurate policy statement by the Legislature of its intent of what the appropriate penalty is for the crime.


Instead, maybe the law should only increase the floor. For every felony conviction, the minimum punishment is to increase by two years. Or, perhaps it should be left to the courts to consider and assign the appropriate weight for each prior felony conviction in sentencing a defendant within the original range of punishment. Whatever the solution is, the current method is not working and creates an unjust and inconsistent system with unreasonable sentences.


The citizens of Oklahoma will soon have the opportunity to vote on State Question 805, which, if passed, will eliminate the use of former convictions to enhance sentences for individuals who have never been convicted of a violent felony. There are two glaring problems with State Question 805. One is that a prior violent felony conviction, one too old to use for enhancement itself, can allow the use of nonviolent felony convictions to enhance a nonviolent felony sentence. The other is its reliance on the Legislature to define what constitutes a violent crime. State Question 805 will amend the State Constitution; however, it will allow the Legislature to limit its effectiveness.


The Legislature can limit the effectiveness of State Question 805 by adding to the statutorily defined list of violent crimes. The Legislature has not figured out how to differentiate between violent and non-violent crimes even though it has been attempting to do so for more than 30 years. In 2018, the Legislature amended the list of violent crimes. In that amendment, it included the misdemeanor crime of Pointing Weapons at Others while failing to include the felony crime of Pointing Firearms - a crime that is by its description more violent than the misdemeanor.[2] It is possible it was a mistake, but the Legislature has since twice amended the list of violent crimes and has not fixed this. On a broader scale, the list of violent crimes includes crimes that should not be there and several violent crimes are missing from the list.


While State Question 805 has problems with some of its language, it is at least a solution - much more than anything proposed by the Legislature. State Question 805 is not a fix-all solution, and it probably is not the best solution. However, it is no doubt one that its organizers think has the best chance of winning the approval of Oklahomans.


The Legislature has the power to fix all of this. It should set the range of punishment that is appropriate for the commission of a particular crime and eliminate sentence enhancement. It should leave it to the courts to sentence appropriately - taking into consideration prior convictions and other factors in determining the number of years within that range that is an appropriate sentence for a particular defendant who is guilty of a specific crime. It should provide sentencing guidelines for consistent sentencing practices. What makes no sense is increasing the maximum range of punishment from ten years to life in prison for an offense initially deemed to be worth at most ten years of someone's liberty. This lazy method of using prior convictions to enhance sentencing is one of the reasons why Oklahoma's incarceration rates are so high and why Oklahoma defendants end up with sentences that are often much larger than deserved.

[1] A prior felony conviction cannot be used to enhance a subsequent felony conviction if the individual managed to go more than ten years after completing the sentence without a subsequent conviction.


[2] The law providing the list of defined violent crimes is found in Section 571 of Title 57 of the Oklahoma Statutes. In subsection ff of Section 571, the following crime is listed: "pointing firearms, as provided for in Section 1279 of Title 21 of the Oklahoma Statutes." Felony Pointing Firearms is found in Section 1289.16 of title 21 of the Oklahoma Statutes.

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CINCOTTA LAW OFFICE PLLC

Phone:  405.266.0360

Fax:  405.421.0025

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