Why I am voting yes on State Question 805. By Attorney Josh Lee
Acknowledgment of bias:
I am a defense attorney. Representing the citizen accused of a crime from the all powerful government is my passion as well as my livelihood. I am part conservative and part libertarian. Unlike most conservatives and most liberals I support all of our Bill of Rights – not just the freedoms I happen to enjoy. In fact passage of State Question 805 would be a financial loss for me as a businessman but its the right thing to do for our society. At the end of the day I am human. I have biases like all people do. Too many deny this fact. I think it is important to acknowledge my bias to you before you read my opinion on SQ805. The outspoken opponents of State Question 805 should do the same. They should acknowledge that they generally fit into one of the following three categories: they are in law enforcement, they are in the prosecution business, or they are a politician who is afraid to ever be made to look “soft on crime.” I want to start off with that acknowledgment. Please consider this as you read the below. Also read the proposed law below for yourself. Don’t take my word for it or anyone else’s either – come to your own informed conclusion and then vote your way.
Oklahoma has a prison incarceration problem. We are consistently the #1 or #2 state in the union for incarceration rate. That means one of two things. Either the citizens of Oklahoma are bad people who deserve to go to prison far more than the people in states like New York, California, or Illinois – or – we just punish our citizens far more than we should.
I refuse to believe the people of this great state are that bad. I spend 7 days a week, 365 days a year thinking about my clients and their cases. Ive been paying attention to our justice system since 1999 when I first started as a dispatcher at the Vinita Police Department then became a police officer there. I went to law school and clerked for a criminal defense firm before interning for the Tulsa County DAs Office, where I was assigned to the major crimes team. After law school I started my own defense practice in my hometown and have been practicing defense work since 2007. One thing is obvious to me and that is our criminal justice system needs overhaul. It needs reform. It needs reform in many areas.
Something that became glaringly obvious from my days in law school to now is how little our state legislators want to improve our system. The criminal justice system in this state is essentially controlled by the District Attorneys Council (DAC) and law enforcement groups like Department of Public Safety, the Sheriffs Association, Department of Corrections, etc. The Oklahoma House of Representatives as well as the Oklahoma Senate are controlled by the same groups. Any house or senate bill that seeks to reform our laws is all but guaranteed to fail if it is opposed by these groups.
For years over-zealous police officers, prosecutors, and judges ruined more lives in the enforcement of our draconian marijuana laws than marijuana itself ever could have. Ive seen far too many young people and adults alike lose jobs, careers, families, licenses, and even their freedom in the name of the war on drugs. Our legislators did not dare make any changes, even when pushed by reform organizations. You see, opposing groups like DAC would get you labeled soft on crime. Appearing soft on crime does not equate to votes. Our system was supposed to be about justice and truth when in reality it is about votes, money, power, and control.
Eventually, however, the people themselves grew tired and fed up with the draconian marijuana laws, took things into their own hands, and pushed reform outside of the House and Senate in Oklahoma City. Our beloved red state – always viewed as one of the most conservative in the U.S. – passed what is essentially legal marijuana. The people also – again without the help of those in OKC – made all simple drug possessions misdemeanor crimes. How did this happen in conservative Oklahoma?
It happened because of the heavy handed way our laws were being enforced. I once represented a young person for possession of 3 grams of marijuana. That is essentially 3 cigars worth. The government didn’t just prosecute this person for the possession, they prosecuted the young person with a felony Possession of Intent to Distribute because, in the prosecutors sole opinion, having that much marijuana meant the person had to be a drug dealer. This young person was looking at a sentence of 2 years to life imprisonment for 3 grams of marijuana. I have witnessed absurdity such as this over and over. I have seen lives ruined over and over.
The people finally had enough and pushed back by passing State Questions 780 and 781. The prosecution and law enforcement groups opposed the changes and the irony of it is their opposition to change is what led to the change. Their persecution of the citizens in this state is, in my opinion, the very reason that all drug possession in this state is now a misdemeanor. It is the reason Oklahoma has essentially legal marijuana decades before most thought we ever would.
Another way prosecutors can be over zealous is in their use of prior convictions to enhance a persons punishment. We call these After Former Conviction of a Felony (AFCF) or use of a “2nd page.” Charging someone this way enhances the punishment level greatly. For example, if a person is charged with a crime that carries 5 or more years their sentence range would be “enhanced” to 10 years to life if they had been convicted of 1 previous felony. Enhancement Statute
Enhancement is totally up to the discretion of the prosector. Some use it all the time and some use it more sparingly.
What is almost certain however is if the person maintains that they are innocent and wish to take their case to a hearing or trial, the prosecution is almost assured to try to enhance their punishment as a way to scare that person out of challenging their case and just pleading guilty. Look at the image to the right. This is a prosecutors writing to defense counsel warning them that if the defendant doesn’t plead guilty then they will file the second page so they can enhance his nonviolent crime and add decades of extra prison time to his minimum sentence. This came from one of the most honest and fair prosecutors I have ever met. That is how commonplace and routine this practice has become.
This practice leads to false convictions of the innocent as well as punishment that is not proportionate to the crime committed. It would prevent atrocities like the lady who spent 33 years in the Oklahoma prison system for $400 in bad checks.
State Question 805 limits the ability of the prosecution to enhance a persons punishment range. In a nutshell it prohibits enhancement of a non-violent felony offense by any prior felony convictions. It is important to note that this does not apply to anyone who has ever been convicted of a violent crime. If you want to know what crimes are considered violent crimes, they are listed at the bottom of this blog post. The actual wording of the proposal is printed below so you can read it for yourself.
Here are some other important facts about State Question 805:
- SQ 805 does not change any underlying punishment ranges either.
- SQ 805 does not turn any violent crimes into non-violent crimes.
- SQ 805 does not give a so-called free pass to people who commit crimes. They can still be punished up to the maximum range of punishment allowable for that offense. It merely prohibits going above that specific crimes maximum sentence range just because the person had a prior felony at some point.
- SQ 805 also does not prohibit the legislature from changing the sentencing range of any crime it sees fit. If a particular crime’s punishment is too harsh, then they are free to soften it. If a particular crime’s punishment range is too soft, then they are likewise free to lengthen it.
- SQ 805 merely seeks to prevent enhancement beyond reason.
I have also heard lots of fear mongering about domestic violence crimes being gutted. That is also false. Lets look at a couple domestic violence crimes as an example.
Domestic Assault & Battery – this is the one of the most often filed domestic charges in Oklahoma. Right now the punishment range for Dom A&B is a misdemeanor conviction with punishment in the county jail for up to 1 year and a $5,000 fine for a first offense. A second offense is a felony and punishment is up to 4 years in the Department of Corrections and a $5,000 fine. SOURCE
If SQ 805 passes that sentence range does NOT change. It is the exact same. The only thing that changes is the prosecution cannot turn the 4 years into 10 years merely because the person had an unrelated felony drug or theft conviction sometime in the past several years. If the legislature believes the punishment for 2nd or 3rd Domestic A&B is too soft they are free to amend that and make it longer. SQ 805 does NOT change their ability to do that. If there is anything that is easy to pass through the House, Senate, and Governors office in this state it is bills that enhance criminal punishment and requested by the states prosecutors.
Here are some more sentencing examples regarding domestic violence crimes from the YesOn805.org website.
Who is behind State Question 805?
An organization called Oklahomans for Criminal Justice Reform. This organization is led by a Republican and former Speaker of the House of Representatives, Kris Steele. Check out the Politico article on Kris titled “A Republican Crusader Takes on Oklahoma’s Prison Machine”
Notable supporters of State Question 805:
- Governor Brad Henry
- Governor David Walters
- Mimi Tarrasch, chief program officer of Women in Recovery & Women’s Justice Programs at Family & Children’s Services
- Pottawatomie and Lincoln county district attorney Allan Grub
- Tulsa World Editorial Board
Other Links to Read
WHAT YOU WILL SEE ON THE BALLOT
FULL TEXT OF THE MEASURE (with bolding for emphasis)
CONSTITUTION OF OKLAHOMA, ARTICLE II-A CRIMINAL HISTORY IN SENTENCING
SECTION I. Definitions
As used in this Article:
A. “Community supervision” shall be defined as a specified period of supervision with conditions, including but not limited to parole, probation, and post-imprisonment supervision.
B. “Statutorily allowable base range of punishment” shall be defined as the range of punishment prescribed for the offense or offenses for which an individual is convicted, without the application of a statutory sentencing enhancement based on one or more former convictions.
C. “Violent felony” shall be defined as any felony offense specified in Section 571 of Title 57 of the Oklahoma Statutes as of January 1, 2020.
SECTION 2. Exclusions
This Article does not apply to, and nothing in this Article shall be construed as applying to, changing, or affecting sentences for a person who has ever been convicted of a violent felony, no matter when convicted.
SECTION 3. Range of punishment after former felony convictions
Except as provided in section 2 of this Article, a former conviction for one or more felonies shall not be used to enhance the statutorily allowable base range of punishment, including but not limited to minimum and maximum terms, for a person convicted, whether by trial or plea of guilty or nolo contendere, of a felony.
SECTION 4. Sentence modification — eligibility Except as provided in section 2 of this Article, a person serving a sentence of incarceration or a person incarcerated pending an acceleration or revocation for a felony offense shall be eligible for sentence modification under this Article if the sentence, including any period of community supervision, for which the person is currently incarcerated satisfies the following criteria:
A. Was imposed based on a statutorily allowable base range of punishment that was enhanced based on one or more former felony convictions; and B. Is greater than the current maximum sentence which may be imposed on a person convicted of the same felony or felonies who has not been formerly convicted of a felony.
SECTION 5. Sentence modification — initiation of proceeding A. To initiate a proceeding for sentence modification under this Article, a person who believes that they satisfy the criteria in section 4 of this Article, henceforth known as the “petitioner,” shall file a verified “application for modification” with the clerk of the court that imposed the sentence of incarceration. The Court of Criminal Appeals may prescribe the format of the application. If the court that imposed the sentence is not available, the presiding judge shall designate another judge or magistrate to rule on the application. Within thirty (30) days of the filing of the application, a period which may be extended if the court has good cause, the court shall dismiss the application pursuant to subsection B of this section or proceed pursuant to subsection C of this section.
B. If the court determines, on the basis of the application, that the petitioner does not satisfy the criteria in section 4 of this Article or has not adhered to the foi mat of the prescribed application, it may deny the application, citing reasons for the denial, or allow the petitioner to file an amended application. Denial of the application due to technical errors shall not abridge the right of the petitioner to file a subsequent application.
C. If the court determines, on the basis of the application, that the petitioner satisfies the criteria in section 4 of this Article, then the court shall conduct a sentence modification hearing and modify the sentence in accordance with section 6 of this Article. In advance of such hearing, the court shall appoint counsel for petitioners who are indigent and notify the state. If the petitioner has a victim registered with the Department of Corrections for the sentence for which the petitioner is applying for modification, the state shall notify the victim of the sentence modification hearing.
D. The Department of Corrections shall provide support as necessary to ensure this section is implemented, including but not limited to posting information in facility common areas regarding the rights set forth under section 4 of this Article and providing timely and adequate assistance for the preparation of applications pursuant to subsection A of this section.
SECTION 6. Sentence modification — hearing
A. The sentencing modification hearing shall be held in open court. The court must accord the state, any registered victim, and the counsel for the petitioner an opportunity to make a statement with respect to any matter relevant to the question of sentence. The petitioner has the right to make a statement on his or her own behalf before the court pronounces a modified sentence.
B. During the sentencing modification hearing, the court shall reconsider the sentence for which the petitioner is currently incarcerated, without any consideration or reference to an enhancement based on one or more former felony convictions, consistent with section 3 of this Article. In reaching this determination, the court shall consider the estimated cost of the petitioner’s continued incarceration to the taxpayers of the State of Oklahoma.
C. At the conclusion of the sentencing modification hearing, the court shall be empowered to modify any aspect of the original sentence. At minimum, the court shall modify the sentence to be no greater than the current maximum sentence which may be imposed on a person convicted of the same felony or felonies with no former felony convictions. The court shall not modify the sentence so that the portion of the sentence to be served in prison is greater than the remainder of the original sentence to be served in prison.
SECTION 7. Appeal to the Court of Criminal Appeals A denial pursuant to subsection B of section 5 or a final order entered under subsection C of section 6 of this Article may be appealed by the petitioner to the Court of Criminal Appeals within sixty (60) days from the entry of the denial or final order. The appeal shall be taken in accordance with procedures implemented by the Oklahoma Court of Criminal Appeals.
SECTION 8. Implementation
This Article shall become effective on the January 1 immediately following its passage.
SECTION 9. Severability
The provisions of this Article are severable, and if any part or provision shall be void, invalid, or unconstitutional, the decision of the court shall not affect or impair any of the remaining parts or provisions of this Article, and the remaining provisions shall continue in full force and effect.
VIOLENT CRIMES IN OKLAHOMA
Here are all the crimes that are currently listed as violent crimes in Oklahoma. As you can see there is no shortage of crimes deemed “violent” under our law. If you want to read the law for yourself then here is the STATUTE LINK.
assault, battery, or assault and battery with a dangerous or deadly weapon
assault, battery, or assault and battery with a deadly weapon or by other means likely to produce death or great bodily harm
aggravated assault and battery on a police officer, sheriff, highway patrolman, or any other officer of the law
poisoning with intent to kill
shooting with intent to kill
assault with intent to kill
assault with intent to commit a felony
assaults with a dangerous weapon while masked or disguised
murder in the first degree
murder in the second degree
manslaughter in the first degree
manslaughter in the second degree
burglary in the first degree
burglary with explosives
kidnapping for extortion
robbery in the first degree
robbery in the second degree
robbery by two or more persons
robbery with dangerous weapon or imitation firearm
wiring any equipment, vehicle or structure with explosives
rape in the first degree
rape in the second degree
rape by instrumentation
lewd or indecent proposition or lewd or indecent act with a child under sixteen (16) years of age
use of a firearm or offensive weapon to commit or attempt to commit a felony
inciting to riot
arson in the first degree
injuring or burning public buildings
obtaining signature by extortion
seizure of a bus, discharging firearm or hurling missile at bus
mistreatment of a mental patient
using a vehicle to facilitate the discharge of a weapon
child pornography or aggravated child pornography
abuse of a vulnerable adult
aggravated assault and battery upon any person defending another person from assault and battery
eluding a peace officer