Oklahoma State Question 805: Criminal History in Sentencing and Sentence Modification
Summary:
Under current Oklahoma law, convicted felons who have previous felony convictions may be given longer or harsher sentences. Question 805 would change this rule to only apply to violent felons. Individuals convicted of a non-violent felony who have no previous violent felony convictions would not be given special sentences for repeat offenses. Instead, they would serve the sentence range prescribed in state law as determined by the judge.
Question 805 would also allow those currently in prison serving enhanced sentences who have not been convicted of violent felonies to ask the court to modify their sentence to the standard maximum for their crime.
Fiscal Impact:
An independent fiscal analysis of Question 805 anticipates that by reducing the state’s prison population by 8.5 percent by 2030, state expenses would be reduced between $45 million and $186 million. It is estimated that taxpayers would save a total of $27 million per year.
Proponents’ Arguments For:
Proponents argue that scarce prison space and resources should be focused on violent felons and that non-violent offenders should receive standard sentences as laid out in state law. They say that the justice system is currently handing down cruel and unfair sentences. For example, a second conviction for breaking into a shed can result in a life sentence. One individual served 33 years in prison for writing $400 worth of bad checks, and a mother was sentenced to 15 years for stealing basic necessities and children’s toys from a Walmart. Question 805 will restore sentences in proportion to the crimes committed as laid down in original state laws, proponents say. Oklahoma has overcrowded prisons and hands down some of the longest prison sentences in the country, at a great cost to taxpayers. Question 805 will reduce the prison population and could save the state nearly $200 million each year and the savings could be used for mental health treatment, further improving public safety.
Opponents’ Arguments Against:
There is no formal campaign against Question 805, but it has some critics who have argued that it would be harmful to public safety and bad for crime victims. Opponents claim harsher sentences for repeat offenders, even non-violent ones, are a crucial tool for prosecutors. They say Question 805 would limit options for dealing with habitual burglars and may wind up leading to the public asking for longer first-time sentences, backfiring on those seeking reform.
Discussion:
Question 805 would only affect punishments for non-violent felons and it hinges on whether or not longer sentences for repeat offenders reduce crime, improve public safety, and further justice.
A massive research project by the National Academy of Sciences has shown that the increase in prison populations nationwide since 1980 is driven by increases in sentences more than increases in crime. Put another way, it shows that decades of the rising use of imprisonment and longer sentences to punish crime did not much affect crime rates. Similar research has found that the return to prison of repeat offenders was mostly due to technical violations and failures in post-prison community supervision rather than changes in sentences.
Some research has found that longer sentences for repeat offenders do reduce crime, specifically by deterring crimes on which the sentences were lengthened, but also finds that the effects are small and the costs may exceed the benefits.
Most research on how longer sentences affect crime conclude they “have become counterproductive for promoting public safety” because:
- long-term sentences produce diminishing returns for public safety as individuals “age out” of the high-crime years;
- such sentences are particularly ineffective for drug crimes, as drug sellers are easily replaced in the community;
- increasingly punitive sentences add little to the deterrent effect of the criminal justice system; and
- mass incarceration diverts resources from program and policy initiatives that hold the potential for a greater impact on public safety.
Indeed a large body of research and basic guidelines from the National Institute of Justice shows that crime is deterred much more by the certainty of punishment than by the severity of punishment. The National Institute of Justice guidelines points out that longer sentences may actually increase crime, while better policing deters crime through both increased certainty of punishment and sentinel effects: “A criminal’s behavior is more likely to be influenced by seeing a police officer with handcuffs and radio than by a new law increasing penalties.”
Several periods of reduced sentences for federal crimes have shown they did not lead to more repeat offenses. A large panel of criminal justice researchers looking at the overall evidence argue that, while more time in prison can mean less time for an individual to do crime and thus reduce their recidivism and in aggregate might reduce crime, this effect is not large overall and has been declining over time, and increasing sentences has almost no deterrent effect on criminals. What the evidence shows is that:
Increased incarceration at today’s levels has a negligible crime control benefit: Incarceration has been declining in effectiveness as a crime control tactic since before 1980. Since 2000, the effect on the crime rate of increasing incarceration, in other words, adding individuals to the prison population, has been essentially zero. Increased incarceration accounted for approximately 6 percent of the reduction in property crime in the 1990s (this could vary statistically from 0 to 12 percent), and accounted for less than 1 percent of the decline in property crime this century. Increased incarceration has had little effect on the drop in violent crime in the past 24 years. In fact, large states such as California, Michigan, New Jersey, New York, and Texas have all reduced their prison populations while crime has continued to fall.
One particular concern about Question 805 deals with domestic abuse crimes. Until recently, Oklahoma law did not treat felony domestic abuse as a violent crime, so advocates justifiably worried that Question 805 would end harsher punishment for serial abusers. But this the Oklahoma Legislature began to address that problem, reclassifying many domestic abuse felonies as violent crimes. Fixing the classification of violent vs non-violent offenses is the best way to solve such problems rather than opposing changes to sentencing for truly non-violent offenses.
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