Oklahoma State Question 805
would insert a new article into the Oklahoma Constitution to ban longer
sentences for repeat felony offenders. The question arises from an
initiative petition.
SQ 805 is opposed by the Oklahoma Sheriffs' Association (and by both candidates for Oklahoma County Sheriff), the Oklahoma Farm Bureau, the Oklahoma Association of Chiefs of Police, the Oklahoma District Attorneys Association, and former Governor Frank Keating, who served as a U. S. Attorney and oversaw law enforcement agencies of the Departments of Treasury and Justice.
The principal opposition group, Oklahomans United Against 805 (no805.org),
states that "State Question 805 (SQ805) will create a culture where
crime is okay in Oklahoma by reducing penalties for career criminals.
With SQ805, habitual offenders of serious crimes will spend less time in
prison. These crimes range from domestic violence in the presence of a
child, home burglary, to child trafficking, soliciting sex from a minor
using technology, animal cruelty and more."
Here is the full text that would be inserted into the constitution if 805 were to receive a majority of the vote:
CONSTITUTION OF OKLAHOMA, ARTICLE II-A
CRIMINAL HISTORY IN SENTENCING
SECTION 1. 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 format 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.
Let's walk through this. The first problem is that this is statutory
language that would be enshrined in the constitution. Section 1 has a
list of definitions, very common in statutes, but a signal that the text
is far too specific for a constitution, which ought to address the
basic structure of government, its powers and constraints, and the
reserved rights of the people. The only reason this is being added to
the state constitution is to prevent the legislature from easily fixing
its problems and unintended consequences.
One definition in particular is problematic: "Violent felony" is not
spelled out with a specific list of crimes, or left to the legislature
to define and adjust as appropriate, but with a reference to a statute at a particular moment in time.
The aim is to prevent the legislature from recategorizing heinous
"non-violent" felonies as "violent felonies" so as to exempt them from
the ban on sentence enhancements.
Here is a link to the version 57 O.S. 571 as of January 1, 2020. This list is Title 57, Prisons and Reformatories, in Chapter 8A, Although this list of crimes has already been superseded with the passage of HB3251 this year, the obsolescent list will be forever enshrined in the constitution if 805 passes.
HB3251 added the following item to the list of violent felonies in 57 O.S. 571:
aaa. domestic abuse by strangulation, domestic assault with a
dangerous weapon, domestic assault and battery with a dangerous weapon,
or domestic assault and battery with a deadly weapon, as provided for
in Section 644 of Title 21 of the Oklahoma Statutes.
The Legislature can add dozens of violent felonies to that section of law over the years, but none of them would ever be considered violent felonies for the purpose of sentence enhancements if SQ 805 passes.
Every time a wife-beater commits, for example, domestic abuse by
strangulation, his previous convictions for that crime cannot be
considered in sentencing him for his latest conviction. The only way to
incorporate newly added crimes would be to amend the constitution in a
future state question either to update "as of January 1, 2020" to a more
recent date or to strike that date phrase from the constitution
entirely, which would undermine the intent of SQ 805.
As you'll notice, 57 O. S. 571 is a long list of crimes with
cross-references to the title and section where each crime is defined.
What happens if the sections of statute mentioned in 57 O.S. 571 as of
January 1, 2020 are amended by a future legislature? Are those
definitions in these other statutes also frozen in time? What if a
future legislature changed the definition of, say, "burglary in the
first degree, as provided for in Section 1431 of Title 21
of the Oklahoma Statutes," by removing the phrase "in which there is at
the time some human being," so that any act of burglary is considered
violent, even if no one is at home? Would that change the definition of
violent felony in new Article II-A or not?
That question would end up in the courts, which illustrates the
trouble with amending the constitution with statutory language via
initiative petition. However imperfect, the legislative process gives an
opportunity for structural defects in legislation to be aired and
remedied in committee, on the floor, and in conference between the two
chambers. An initiative petition is written by the proponents, with no
vetting process beyond nods from "yes men," and then it's an up-or-down
vote, with no opportunity to fix problems, short of another proposed
constitutional amendment.
Another problem with this hard-coded reference to statute: If you scroll down to the bottom of the most recent version of 57 O.S. 571,
you'll see a list of citations, which includes court decisions which
refer to the section, and it also includes other laws in other titles
that refer to this list of violent felonies. I count seven references,
dealing with electronic monitoring, appeals of out-of-school
suspensions, criminal record expungement, and sentence enhancements. As
this section of law is expanded to include additional crimes, a gap will
grow between the definition of violent felony used by these other
statutes and the definition, frozen in amber, used by SQ 805's new
section of the state constitution.
To continue:
Section 2 uses the definition of violent felony in section 1 to
exclude someone who has ever been convicted of one of those crimes from
all the protections that follow.
Section 3 is the heart of the proposed constitutional change:
Previous convictions "shall not be used to enhance the statutorily
allowable base range of punishment." That phrase, "statutorily allowable
base range of punishment," has a circular definition in Section 1: "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." This is
a mess.
Sections 4 through 7 establish a procedure by which people currently
in prison can have any sentence cut to what would be allowed for new
convictions of first-time offenders under 805. This is the "get out of
jail early" provision which would allow a career criminal to get back to
work victimizing the public sooner than he would have under his
original sentence.
If the sentence a career criminal is serving is longer than a
sentence for a conviction today for a first time offender, the career
criminal can apply for a hearing to get that sentence reduced. The judge
can modify the sentence, but only downward, so the process bears no
risk to the career criminal. The sentence has to be cut at least
to the length of sentence for a first-time offender, but could be cut
further. The career criminal is entitled to a state-paid attorney. The
same court that imposed the original sentence is responsible to hear the
sentence-modification request. The prosecutor, the career criminal's
attorney, the career criminal himself, and the registered victim, if
any, are all entitled to speak.
Once again, this is statutory language being locked into the
constitution where it can't be adjusted if the procedure proves
impractical. Ordinarily, a constitutional provision would establish a
right or an obligation and then would direct the legislature to make
laws enforcing the provision. The only nod to practicality is
authorizing the Court of Criminal Appeals to design the application
form.
In Section 6.B. there is this little bombshell, which hasn't received any attention:
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.
I assume that courts may consider other factors as well, but the only
factor they are mandated to consider is the cost to the taxpayer, and
of course a shorter sentence will always cost the taxpayer less than a
longer sentence, but there is no mandate to weigh that cost against the
cost borne by the future victims of the career criminal as he returns to
his life's work.
There are two reasons we lock people up: To punish the criminal and
to protect the public. Shoplifting, burglary, car theft -- all these
property crimes impose a tax on the public. (There are many more crimes
that are affected by 805; see below for a longer list.) This tax
manifests itself as higher prices, higher insurance rates, alarm
monitoring fees, the cost of stronger locks and higher fences.
A more targeted tax is paid by families and small businesses that are
existing on the margins: Families on the edge of poverty can't afford
the protections available to wealthier Oklahomans, which makes them
targets of opportunity for career criminals to take what little they
have. Likewise, small retailers pay a greater price for theft, and are
less able than the big chains to afford surveillance or pass on losses
to consumers.
There's a social tax, too: The knowledge that career criminals are
living among us and that the legal system no longer cares about
protecting us from them, will only make Oklahomans more suspicious and
less trusting of one another.
The proponents of 805 care nothing about these impacts. They care
only that predators are allowed to roam free. In one social media
exchange, a vocal proponent of 805 stated that, rather than protect
women by imposing long sentences for domestic abusers, women should be
taught how to hide money and escape from their abusers. With wild
animals, we know we should avoid certain wild areas, should carry
repellent sprays if we have to venture into those areas. The mindset
behind 805 says that some people are just predatory, and because we live
in their habitat, we must expect them to victimize us. It's nature's
way, as Steve Irwin used to say about snakes and crocodiles.
Some may object to the term "career criminal," but many of the
serious crimes that will be affected by SQ 805 are the sorts of crimes
that people pursue as a way to make a dishonest living. 805 would reduce
the consequences for their choice of a career.
Section 8 allows a career criminal who didn't to get the sentence
reduction he wanted to appeal the decision to the Court of Criminal
Appeals, the highest court in Oklahoma that deals with criminal cases.
This remedy isn't available to prosecutors acting on behalf of the
public or to victims, just to the career criminal.
Section 9 has a severability clause, which anticipates the
possibility that the court might strike down part or all of this new
constitutional language as unconstitutional, which is
through-the-looking-glass weird. Severability is normal in a statute,
completely inappropriate in constitutional language. It's particularly
inappropriate in this case: If Section 1 or 2 were declared
unconstitutional, the remainder of this new constitutional amendment
would be meaningless.
I am voting no. There may well be a strong case regarding specific
crimes for reducing sentences, or expanding diversion programs, or
substituting restitution for incarceration, but the right way to address
those questions is through the legislative process, where many voices
can weigh in, as proposals are filtered through committees and the floor
of each house, with public hearings and amendments, not through a
poorly crafted, unvetted bit of legislation embedded permanently in our
constitution.
Government's first responsibility is to protect citizens,
particularly those who lack the resources to protect themselves, from
evildoers who choose to victimize others as a way to make a living.
MORE ON SQ 805:
On Facebook, No805 has been posting the rap sheets of criminals who would get out of jail much sooner if 805 passes.
The Repeal SQ780 Facebook page provides frequent examples of the failures of Oklahoma's previous attempts at "criminal justice reform."
Other advocates provide more detail on the long list of serious
crimes that are left off of the "violent felony" list that SQ 805
establishes and the likely effects:
Association of Oklahoma Narcotics Enforcers:
Incredibly, the advocates of State Question 805 would have
our citizens believe that those currently sentenced to these crimes
actually serve out their sentences despite the fact that every one of
these criminals are eligible for parole after serving 25% of their
sentence. In fact, habitual criminals know very well that they will only
serve a small fraction of their sentence, with even a smaller portion
spent behind bars. A significant segment of our "inmates" in Oklahoma
are actually living at home attached to a GPS monitor or residing at a
halfway house. It is important to note that in the last two years
Oklahoma's prison population has actually decreased 17.7 percent and the
prison overcrowding narrative is a manufactured crisis not based in
reality. Promises of purported savings to fund benevolent programs are
of the oldest, and most oft used, propaganda techniques that appear when
promoting a questionable legislative effort.
What crime we do experience is committed by a small number of
individuals. For instance, when a community experiences 100 burglaries,
that does not in any way represent 100 separate burglars, but a very
small number of thieves stealing over and over again. It is this
repetitive and habitual offender that police and prosecutors should
focus their efforts and resources, but State Question 805 does nothing
more than provide a legal sanctuary for these habitual defendants who
cause so much havoc in our communities.
These theories urging the reduction of law enforcement did not
originate around here, but are part of spurious intellectual ideas
offered by special interest groups with no experience dealing with
criminals who victimize citizens. To illustrate the horrendous impact
State Question 805 would have, simply pick a city where the law is not
being enforced and evaluate just how that city is doing. If police and
prosecutors are stripped of their ability to target habitual offenders,
Oklahoma would experience the public safety chaos currently seen in
America's coasts. Our citizens, our children, and our victims deserve
better.
Oklahoma Sheriffs' Association:
With SQ805, habitual offenders of serious crimes will spend
less time in prison, and put them back on the streets where they can
continue committing crimes like home burglaries, child trafficking,
soliciting sex from minors using technology, animal cruelty and domestic
violence; just to name a few.
While proponents of 805 claim it only applies to non-violent
offences, many horrible crimes against people and animals are classified
as non-violent, creating a pass for the perpetrators of these heinous
crimes, because each crime has the same sentence range as a first time
offense....
As Oklahoma's constitutionally duly elected Sheriffs, we urge all
Oklahomans to Vote "NO" on SQ 805 and protect Oklahoma children from
super predators. We ask citizens to vote "NO" on SQ 805 and keep our
homes and private property safe from repeat career criminals who would
break into our homes, and steal our property; who would steal our
identities and cause us financial hardship, and who would commit acts of
Indecent Exposure, hate crimes based on Race, Religion, Sexual
Orientation; and those who would commit acts of Negligent Homicide.
SQ 805 would also be retroactive, and would mandate the reduction of
sentences of convicted criminals currently serving time in prison,
disregarding the decisions of the juries and judges who handed out those
sentences.
Oklahoma Farm Bureau:
With longstanding policy that calls for strong penalties on
agricultural crimes, OKFB opposes the measure due to concerns over its
potential impact in rural communities, specifically with the theft of
livestock and farm or ranch equipment.
"For decades, Farm Bureau members have stood for protecting property
rights and promoting public safety," said OKFB President Rodd Moesel.
"Unfortunately, those of us in agriculture are all too familiar with
cattle theft and other property crimes that can cost our farm families
thousands of dollars. A no vote on State Question 805 will protect the
safety of our treasured rural communities by ensuring habitual offenders
continue to be punished appropriately."
OKFB is joined in the coalition by other statewide agricultural organizations including Oklahoma Cattlemen's Association.
Oklahoma Association of Chiefs of Police:
The OACP believes that SQ805 actually does not do anything
to protect our citizens from being victimized of crimes, but gives
credit to people who commit those crimes to say that there are no
consequences to recommitting multiple crimes. When the proponents of
SQ805 talk about non-violent offenses, take time to understand what is
meant. Please hear the warning from our membership that treating career
criminals as first-time offenders will do nothing but embolden those
who seek to take property and safety away from our hardworking and
honest citizens. Our members do not profit by having people in jail, but
we do see the effects of allowing people to reoffend without fear of
serious penalties.
We are also very leery of yet another change to the State
Constitution. By making changes such as this, we take away the
ability of our duly elected representatives to make corrections
and to minimize unintended consequences. If the proposition of SQ805
is good and the will of the people, so be it; but leave the option of
mitigating damage to our criminal justice system if it is found to be a
faulty concept after we have all had time to see the short and long-term
effects.
Oklahoma District Attorneys Association:
"Painting longtime criminal offenders as if they are
first-time offenders is not only dishonest, it is a disservice to
Oklahomans who are trying to decipher just how bad the policy behind SQ
805 is going to be," said Marsee. "Today, we challenge the proponents to
release the FULL records of the criminals featured in their ad, so
Oklahomans can decide for themselves how many crimes are too many before
a judge or jury determines they are a menace to society."
Former Governor Frank Keating, who served as a U. S. Attorney and oversaw law enforcement agencies of the Departments of Treasury and Justice:
Let's look at examples. Repeat drunk drivers who have caused
injury. Incest. Trafficking in children. Hate crimes. Stalking and
violation of protective orders. Drug distribution.
How many times can a criminal do these? As many as they wish. Each time, they will be treated as a first offender.
I have been an FBI agent, a state prosecutor and U.S. attorney in
Tulsa. I supervised the federal criminal prosecutions in the U.S. as
well as all of the U.S. attorneys and most of the federal law
enforcement agencies, including the U.S. prison system. Proposed State
Question 805 is a stay-out-of-jail free card.
There is always room for reform but not SQ 805. It will result in
more criminal activity and more victims. We must not add to the girth of
our constitution with this one-size-fits-all experiment. If 805 passes,
it cannot be amended by any Legislature at any time.
State Question 805 is terrible public policy.
Labels: Oklahoma election 2020
