• David A. Cincotta

TUG-OF-WAR WITH OKLAHOMA'S CRIMINAL JUSTICE SYSTEM



Oklahoma prosecutors have been locked into a tug-of-war match with the Department of Corrections (DOC) for decades involving Oklahoma sentencing practices. It has pulled and stretched the system exceedingly thin. The real fix may be a complete rewrite of the laws relating to sentencing ranges, sentence enhancements, select mandatory sentencing, the credit system, and parole eligibility.


Having worked both as an Assistant District Attorney and as General Counsel for DOC, I have a considerable amount of respect for the viewpoints of both sides. I believe both share many of the same overall interests in public safety. The two don't speak out against each other very often, which is likely due to their shared interests of public safety and cooperative respect. There are areas, however, in which methods and priorities of the two vastly differ. Further, DOC has a different mission than that of the prosecutors throughout the state of Oklahoma. Prosecutors and DOC are never up against each other directly.


When a prosecutor files a case and seeks a sentence of prison time, the prosecutor believes the defendant needs to be in prison. DOC, on the other hand, is responsible for receiving, securing, and providing necessary care to those sentenced to its custody as well as administering the sentences imposed to each inmate per the laws of the state of Oklahoma. DOC must release every inmate who completes his or her sentence, regardless of whether the release is a risk to public safety.


Once DOC came close to hitting its capacity to house inmates decades ago, a silent battle began that wages on to this day. That silent battle, or the tugging back and forth, between DOC and prosecutors hinges on the issue of the proportion of a sentence an inmate serves in DOC's custody. When DOC takes action (on its own or according to new legislation) that causes a reduction to the portion of sentences served by inmates compared to the length of sentence imposed, prosecutors see the results of said action in reasonably short order. In response, prosecutors seek lengthier sentences to compensate - wanting to ensure that the person serves a specific amount of time in custody. DOC responds by implementing new actions that will cause further reductions. This causes the battle to continue.



In Oklahoma, most inmates in the custody of DOC can receive credits that reduce the proportion of their sentence served. Absent programs permitting inmates to serve their sentences outside of prison (Electronic Monitoring Program), the only ability DOC has to reduce an inmate's punishment is to award the inmate achievement credits. These are credits that it has the discretion to distribute, which are in addition to the legislatively required credits inmates receive called earned credits.1


When an inmate receives almost 90 days' credit of time applied to his or her sentence each month, the inmate will be able to discharge the sentence in about one-third of the time ordered. So, it is no wonder that the percentage of people paroled in the state of Oklahoma was low for years. Well-behaved inmates were discharging their sentences at or about the time they were becoming eligible for parole. Those left for parole consideration were those who committed crimes that did not allow them to earn credits or inmates who consistently behaved poorly, affecting their ability to receive credits or causing them to lose credits.


Now, please don't believe that DOC did this on its own or that DOC wanted to find ways to let inmates out early. Many of the credits it awards to inmates are credits required to be applied to inmates' sentences by law. Moreover, DOC has had a population crisis for years - really for decades. It does not have the appropriate type of facilities to house the number of inmates sentenced to its custody. Without adequate financial support to repair and replace facilities, hire the required staff, and implement more efficient systems, DOC has not had much choice. It had to find ways to maintain operations under a budget that was not keeping up with the demands.


In addition to the issue of credits, DOC can release inmates under the Electronic Monitoring Program by utilizing GPS monitoring while the inmates are still serving a sentence of incarceration. Before discharging a sentence upon serving one-third of the sentence imposed, DOC releases many inmates on an ankle monitor months or years before they get to this point. The inmates are right back out in the same community from which the prosecutor fought or negotiated to have the inmate removed - and the prosecutor never imagined the inmate would be out so soon.


On the other side, District Attorneys carry a lot of weight at the Capital. Maybe not as much now as they once did, but when "tough-on-crime" policies were the politically smart move, prosecutors were successfully pushing for harsher sentences on a variety of crimes. Again, it is hard to fault their motives – as public safety was no doubt their focus. Not to say the ends justified the means. Prosecutors had public safety in mind, and seeking lengthier and harsher sentences were the strategies they appeared to apply consistently. That was especially the case when inmates started serving less and less of the sentences imposed.


Whether prosecutors should seek longer sentences to compensate for the additional credits applied by DOC is debatable. An alternative theory is that defendants should be sentenced based on the number of years appropriate for the crime. When the defendant is released early, it should be the elected officials and DOC who have to answer for it. Had prosecutors adopted that position, there would not be near the gap between the time served and the sentence imposed. However, to ask a prosecutor not to take into account the reality of when a defendant is likely to be released is not realistic. It is just not how prosecutors are wired.


What prosecutors appear to want more than anything is surety-in-sentencing - to know that when they negotiate a plea agreement with a defendant or seek a term of years at a sentencing hearing, the defendant is going to at least serve a specific portion of that sentence in custody. Quite frankly, the courts and the defendants (and defense counsel) would benefit from that too. The guesswork involved in trying to figure it out in advance is ridiculous.


To provide for that result, we must have a substantial reduction of sentencing ranges for nearly all crimes. We must eliminate the Electronic Monitoring Program (GPS) along with the vast majority of credits inmates receive to reduce their sentence length. Credits should still be applied to inmates' sentences when they obtain degrees and follow through with commitments to complete beneficial programs; however, a substantial reduction in the number of credits awarded must occur to correlate to a new system. We, as Oklahomans should not want our prosecutors feeling the need to seek a thirty-year sentence because they want the defendant to serve approximately ten years. At the rate things are going, five years from now, prosecutors will be asking for a forty-year sentence if they want the defendant to serve ten years.


This tug-of-war has caused an ever-widening gap between the time served and the sentence imposed. As a result of this disparity, we have a deeply broken system. Neither side is likely to back down, and it is going to take the Legislature to fix this. Nobody seems serious about getting to the core of what is wrong; rather, year-after-year, the Legislature appears satisfied with only half-hearted solutions aimed at reducing further the time inmates serve. No doubt, prosecutors are already seeking more substantial sentences in response. Unfortunately, the system may need to fail even more before receiving the attention needed to fix it correctly.



1 In Oklahoma, one credit equals one day. So, if an inmate earns an additional 30 credits a month (on top of the day-for-day time served they receive off their sentence), the inmate will serve half of the sentence imposed. A typical inmate will see his sentence reduced each month by approximately 78 to 89 days (accumulation of time served and credits) - causing the inmate to serve roughly one-third of the sentence imposed. Moreover, the 78 to 89 credits a month does not include achievement credits inmates receive for completing programs. These numbers represent the current amount of credits inmates receive, and these numbers have been consistently going up for decades.

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CINCOTTA LAW OFFICE PLLC

Phone:  405.266.0360

Fax:  405.421.0025

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