• David A. Cincotta

OKLAHOMA CRIMINAL JUSTICE REFORM MUST INCLUDE FIXING THESE TWO CRITICAL MISTAKES MADE 20 YEARS AGO


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The year was 1999. The Oklahoma Legislature just repealed most of the truth-in-sentencing laws it had passed just two years previously that had never gone into effect. To replace the truth-in-sentencing laws from 1997, the Legislature enacted several new laws with none as consequential as the 85% sentencing law requiring completion of 85% of the sentence imposed before being eligible for release from prison. The result from that time forward has been costly. Costly to the citizens who trusted its elected leaders to not only make decisions to improve public safety but also costly by not using taxpayer dollars efficiently.

Why the original truth-in-sentencing laws introduced in 1997 were mostly repealed in 1999 is not completely clear. Were they too soft on crime at that time in Oklahoma? Was it due to lobbying efforts by the private prisons who had established a home in Oklahoma in the years preceding and who profit significantly from a state with a demand for prison beds? Ultimately, it does not matter today what the cause was 20 years ago for failing to pass real truth-in-sentencing. What matters is that things get fixed correctly moving forward.

Many states passed truth-in-sentencing laws by the mid - ‘90s. Truth-in-sentencing laws were intended to stop the continuously growing gap between the sentence imposed and the actual time served in prison. According to the Bureau of Justice Statistics, prisoners released nationwide in 1996 served on average 44% of their imposed sentence. The Bureau of Justice Statistics attributed this to the pressures in the ‘80s for longer prison sentences, laws mandating minimum sentences, and a lack of investment in state prisons.

With the 85% sentencing law replacing the truth-in-sentencing laws introduced two years prior, Oklahoma was set up to reduce that gap from approximately 45% to no more than 15% but only for the specific crimes included in the 85% sentencing law. Two critical mistakes/oversights occurred resulting in problems that continue plaguing Oklahoma's criminal justice system today. If these mistakes are not addressed, long-term progress in criminal justice reform in Oklahoma cannot occur.


The first mistake was failing to reduce the ranges of punishment for the crimes on the list in the 85% sentencing law. When it originally went into effect in 2000, and as new crimes were added to it in subsequent years, the sentencing ranges for said crimes were not reduced and neither were the sentences being requested by prosecutors nor the sentences being imposed by the courts. This had the impact of causing newly sentenced inmates to serve approximately 40% more time behind bars. Was the goal behind the 85% sentencing law to cause defendants to serve more time in prison or was it to take the guesswork out of determining how long a sentence needed to be to ensure a certain amount of prison time would be served?


To illustrate the point, here is an example. A defendant being sentenced for committing a crime listed in the 85% sentencing law (but before that law exists) stands before a judge who believes the defendant needs to serve no less than 10 actual years in prison. Because the 85% sentencing law does not yet exist in this example, a sentence of 22 years is required to ensure the defendant will serve 10 years in prison. If the same example occurred after the 85% sentencing law took effect, the sentence length would only need to be 12 years. However, what happened when the 85% sentencing law took effect was that sentences remained at or near 22 years and did not drop to 12 years to achieve the purpose of ensuring 10 years behind bars. The result was an increase from 10 to 18 years of the minimum time that the defendant in the example will spend in prison. Unfortunately, there were many like the defendant in the above example. This significantly contributed to Oklahoma's high incarceration rate these last 20 years.

The second mistake was doing nothing about the sentences for all other crimes not included in the 85% sentencing law and allowing the widening of the ever-growing gap between the sentence imposed and the actual time served in prison. Due to an insufficient investment of resources into Oklahoma's prison system, DOC had little choice throughout the years but to take every action within the limits of the law to shorten the duration of most inmate's sentences. To combat this and try to ensure those being sentenced to prison remained behind bars for a set amount of time, prosecutors (and judges) increased the sentences being imposed. This tug-of-war between DOC and prosecutors/courts continued to build and strain a system to the point where a defendant can now serve a sentence in about 30% of the time imposed, with one exception – the sentence is not one precluded from earning credits.  This has resulted in some bizarre sentences.


Just a few random examples of those bizarre sentences:

  • 90 years total in prison for second-degree burglary and possession of a stolen vehicle out of Creek County;

  • 60 years in prison for possession with intent to distribute drugs out of Tulsa County; and

  • 28 years in prison and a suspended life sentence for drug possession, possession of stolen property, and false personation of another out of Ottawa County.

Defendants, prosecutors, defense attorneys, and judges should not be left to guess at the length of time a defendant will serve in prison when negotiating a plea agreement or determining the most appropriate sentence. Doing nothing and expecting things to get better when courts are sentencing defendants at 300% of the actual amount of time desired in prison is insane. Criminal justice reform must include a form of truth in sentencing for all crimes not included in the 85% sentencing law so that the actual time served in prison is substantially closer to the sentence imposed. Another benefit from this would be a much less complicated system of credits and time calculations, which is currently extremely complicated. Without these solutions worked into the overall reform package, the system is going to continue in a direction where a complete rewrite of the penal code will be easier than undoing the small, sometimes meaningless fixes that continue to come out each year with the label of criminal justice reform and that only cause more confusion and frustration to the current system.

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©2019 by Cincotta Law Office PLLC.

CINCOTTA LAW OFFICE PLLC

Phone:  405.266.0360

Fax:  405.421.0025

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