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Okla. Eyes Retroactive Drug Charge Reforms To DAs' Chagrin

By RJ Vogt | February 3, 2019, 8:02 PM EST

Oklahoma imprisons more than 1 percent of its total population, a rate nearly double that of the U.S. at large and 10 times higher than those in countries like the United Kingdom or Canada.

But legislators in the world’s prison capital hope to put a dent in its inmate population with a bill set to hit committee on Tuesday. The bipartisan measure, proposed in January by the state House’s Republican majority leader Jon Echols and Democrat Rep. Jason Dunnington, would make previous drug and property crime sentencing reforms in the Sooner State retroactive.

Advocates estimate 2,500 prisoners could benefit from the changes, most of them offenders who received felony sentences for drug possession charges that have since been reduced to misdemeanors thanks to a 2016 referendum.

“This is really a moral argument,” Dunnington told Law360 in an interview last week. “Are we keeping people incarcerated that otherwise could be out and living successful lives?”

Not everyone agrees. Brian Hermanson, chair of the Oklahoma District Attorneys Council, told Law360 he’s concerned about the practical aspect of making the 2016 reform known as State Question 780 retroactive. For him, it’s a resources issue.

“The resentencing of many cases will probably take a significant amount of judicial and prosecutorial time… and money,” Hermanson said.

He pointed out that SQ 780 not only reclassified all drug possession charges as misdemeanors, but also raised the threshold for felony theft from $500 to $1,000. The proposed bill would automatically refer those with simple possession charges to courts for resentencing, but those with theft charges would be required to initiate the resentencing process on their own.

The theft cases could require new property value determinations, and Hermanson said some of the drug related cases could be tied to other violent crimes that require consideration.

Tulsa County District Attorney Steve Kunzweiler raised similar points of contention to the bill. An outspoken opponent of the referendum during the 2016 campaign, Kunzweiler told Law360 that applying SQ 780 retroactively, in addition to being cost-intensive, would be unnecessary.

“Oklahoma already has in place a post-conviction remedy which can and should be utilized in appropriate circumstances,” he said, referring to the state’s commutation process, which saw outgoing Gov. Mary Fallin commute 30 sentences at the end of 2018.

“It is a more deliberative process which … affords all parties to have input on whether the incarcerated person should be reintegrated into society,” Kunzweiler added. “This may be important where the criminal history factored into the sentence, or where the person had a history of violence or gang activity.”

According to reform advocates, however, the commutation process is bulky and unfavorable to offenders. Kris Steele, a former speaker of the state house who chairs Oklahomans for Criminal Justice Reform, said it takes seven months, on average, for a prisoner to even get a commutation application on the docket.

If the Pardon and Parole Board grants a favorable vote, he said another 60 days must pass before someone gets to make a personal appearance. If that goes well, the bid must still go before the governor, who may save it for the end of his or her term for political purposes. All the while, DAs can object to the commutation and impede its progress.

“The reasons the DAs are suggesting this … is it’s another way they can ultimately thwart the will of the people in this issue,” Steele said. “It makes them the gatekeeper because of the opportunity they have to object.”

Steele also said the potential case load of retroactivity wouldn’t be as tough as DAs “tend to hyperbolize.”

Roughly 1,050 people currently serving time in Oklahoma for charges of simply possessing an illegal drug like cocaine or opioids could be released if the measure passes, according to his research. Another 1,400 people who have additional charges could see the drug-related portions of their sentences reduced, and the number of people who could apply to have felony theft charges reduced is unknown but likely small.

“I think this is something Oklahoma can handle,” Steele added, noting that the bill divvies up resentencing by sending cases back to the district courts where they originated. “Obviously they had no trouble with volume when it came to convicting people of felonies … and yet I hear a concern that allowing them an opportunity to get rid of the felony conviction, ‘Oh, we don’t have time for that.’”

At a meet-up last week between DAs and lawmakers, some prosecutors pushed for a middle-ground proposal, which would allow those with SQ 780-related offenses to enter an “expedited commutation process.” Hermanson told Law360 that option “would seem to allow a favorable resolution without the problems of retroactivity.”

But for Ryan Gentzler, director of the policy group Open Justice Oklahoma, the retroactivity bill accomplishes the same thing “in a much clearer and easier way.”

“I don’t see any reason that commutation wouldn’t work, but it wouldn’t work as fast or as thoroughly as the retroactivity measure would,” he said.

--Editing by Kelly Duncan.

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