Last Thursday, the TU Black Law Students Association and the Federalist Society held an “Oklahoma Criminal Justice Panel on Sentencing Reform.” The panelists included district attorneys, public defenders and a federal prosecutor.
This event was hosted in hopes of starting a conversation about criminal justice reform, especially given that State Question 780 and 781 are initiatives planned for the November 2016 ballot. State Question 780 would reclassify simple drug possession and certain property offenses as misdemeanors. The money saved by this move would, under 781, be used to fund rehabilitative programs. These measures are supported by Oklahomans for Criminal Justice Reform, especially former Republican House Speaker Kris Steele.
Bill Otis, adjunct professor of law at Georgetown University who was influential in the Bush administration, began the night. In his opinion, reformers have a “naive view of the attitudes and behaviors of people who go into prison.” Shorter sentencing or early release, he believes, has costs which are more easily pushed to innocent victims, whereas prison puts these costs on “the criminal who made his own choices.” By letting out, or keeping criminals in prison for shorter periods of time, the government runs the risk of letting the wrong person out.
When this occurs, innocent victims pay the price, victims, he believes, have been kept safe if the releases/shorter sentencing hadn’t occurred. He referenced the story of Wendell Callahan, a convicted crack dealer who left prison early under new federal guidelines. Callahan fatally stabbed his ex-girlfriend and her two kids in Columbus, Ohio. If the new guidelines were not in place, Callahan would have still been in prison at the time of the murders.
“Given the staggering frequency at which inmates return to their criminal ways,” Otis stood firm in his belief that shorter sentences/early release was not the answer. The push for lower sentencing and similar reforms, he said, was part of the country’s “settling for a lower standard in the name of equality.”
While he believes the Callahan case was tragic, Damario Solomon-Simmons, a defense attorney and part of OK Policy Institute, thinks “we don’t talk about the success stories of those who got out early.” These stories don’t make good headlines, he said, so they’re often ignored. Danny Williams, a United States attorney for the Northern District of Oklahoma, also added that when people are released, most want a job, education, and counseling if they have mental illnesses or addictions. But, as he, and several other panelists mentioned, these may be hard to obtain with the current way former criminals are treated.
Other panelists disagreed with Otis’s view of people in prison. Williams, noted that while he rarely meets with defendants as part of his day-to-day job, those he has met with have similar histories of dropping out of school, drug-addict parents and a lack of many choices in life. Jill Webb, a Tulsa county public defender, added that the “damage we do [through incarceration] to their lives, families’ lives and community is real damage,” as Otis had only argued that shorter sentencing damages innocent victims.
Several panelists argued racial discrimination continues to haunt the criminal justice system. Solomon-Simmons argued that the “War on Drugs” was really a war on black and brown people, which former aides to Nixon also have recently said. “With this backdrop of racial inequality,” he said, “we must revisit the criminal justice system.”
“We live in an age of discrimination,” said Marvin Lizama, a Tulsa county defense attorney “and discrimination abounds within our criminal justice system.” For instance, in 2007-2011, he said, 82 percent of Blacks arrested for crack cocaine went to prison, while only 14 percent of similar white counterparts did.
Those currently paying the price in the justice system, according to Webb, are the poor. “The north side feels like police are detaining them,” she noted, “while the south side feels like the police are protecting them.” By addressing this inequality, Webb believes the justice system can work better. Webb hopes reforms can occur sooner, because “we shouldn’t wait until we treat rich people how we treat poor people” for them to happen.
A disagreement arose on the role of the prosecutor. Steve Kunzweiller, a Tulsa county DA, has shaped his career around advice received from a past judge — that prosecutors are there to “teach people the morals they either never learned or that they forgot.” From this lesson spring three different methods of treating defendants, which he learned from raising children: lecturing, grounding or spanking. Webb, however, argued that for many cases, teaching morality isn’t the issue. Mental illness or addiction are mental issues, so he cannot teach defendants anything in such situations.
Adam Luck, the Oklahoma State Director of Right on Crime, which follows a conservative approach to criminal justice, brought up the prison budget as an issue that should affect the discussion of criminal justice reform. He agreed with Otis in that deciding who to release early was not a good choice to make; instead, he believes the system needs to better determine who goes into prisons in the first place.
Not fixing this system means “we’re on the trajectory to disaster,” according to Luck, who noted Oklahoma’s prisons are 123 percent above occupational capacity, and about 140-150 percent above design-rated capacity. Either prisons will be forced to let people out early, which he did not support, or there will be “loss of life in prison.”
“If we’re going to continue to incarcerate people,” Luck said, “we have to do it right.” He advocated for exploring more cost-effective solutions with better outcomes than prison, due to the overcrowding and understaffing, which he believes poses a dangerous risk.
During discussion, an audience member asked what holds the state back from reforms. Luck noted that Texas affected changes several years previously to their criminal justice system when it became apparent that within a few years, the prison population would massively swell. “The evidence for needing to address the problem isn’t there,” he said of Oklahoma’s situation. In Texas, the number of predicted new prisoners was upwards of 10,000 and would require new prisons to be built. Oklahoma doesn’t have such large predicted numbers, making the state lack an impetus foe change.
Solomon-Simmons added that many state officials run unopposed, which means no conversation happens about such issues. On a different note, Otis said the savings received from the potential victims of those in prison was not visible in such calculations of reforms, but still important.
Everyone agreed on the negative effects of prison privatization. Because “they make money filling beds,” Harris said, there’s no incentive to reduce prison populations. Solomon-Simmons also brought up that DA offices can make upwards of 50 percent of their budget from fines and fees. Since they are often inadequately funded, “it’s hard to convince them to change.”
The discussion did not reach a clear consensus on what to do. Kunzweiller offered multiple ideas as part of his solution. One of his major tenets was communication between the different groups involved in criminal justice and with the defendant. If judges took time to talk with defendants before sentencing, he believes recidivism (person’s relapse into criminal behavior after being released from incarceration) would decrease, because finally someone in the system would show they care. In addition, he made a plea for increased pay for public defenders because at the current rate of pay, his office experiences a good deal of turnover, which makes work harder.
Otis, meanwhile, suggested more prisons. “When we have more prisons, we have less crime,” he noted, as part of his opposition to shorter sentencing. In addition, he believes concealed carry laws have been part of the drop in crime rate.
Tim Harris, former Tulsa county DA, reported several decisions state criminal justice subcommittee for sentencing had agreed could help the issue. These included changes from a felony to a misdemeanor description in several crimes, support for alternative courts, community sentencing for misdemeanors and other changes.
He reminded the audience of Einstein’s definition of insanity — repeating the same act and expecting different results. “We have to come together as a community, and take a chance on something different,” he argued, because at the current rate, a good deal of the population will be felons.
Williams summed up the night best with his closing statement. “We can’t incarcerate ourselves out of this,” he said, even though he believed he didn’t have any quick solutions to fix the system.
