Patrick B. McGuigan
OKLAHOMA CITY – American prisons are too often graduate schools of crime, places where foundational purposes of Western law – restitution and justice – have become distant dreams, the equivalent of myths.
In Oklahoma, prisons and jails are more crowded than ever, as Corrections trails only Health Care as a cost-driver in state government.
People convicted of comparatively minor offenses, including low-level drug crimes, receive such long average sentences that the state has the top incarceration rate for women, and one of the top five rates for men.
It doesn’t have to be this way now, and it won’t have to stay this way in the future. Not only has reform been slow, but also in some respects retrograde after some positive steps were taken.
A few years ago, the Oklahoma Legislature edged toward reform, then backed away. Comprehensive prison reforms, known as the Justice Reinvestment Initiative, passed, but were soon ignored by the politicians. Progress was delayed for a few years, as folks who consider themselves “tough on crime” slow-played needed changes.
Hope was renewed this year, when Governor Mary Fallin recovered the reform vision for criminal justice she seemed to possess in 2012, when she signed measures promoted by then-Speaker Kris Steele.
Thus, the tide appears to have turned back toward sensible and proven reforms that will reduce over-incarceration while maintaining core public safety objectives. In fact, the package of modest reforms that passed the Legislature to land on Fallin’s desk has finally restored a game plan for incremental progress.
One of the new laws addresses a primary driver of over-capacity incarceration, namely the “85 percent crimes.”
When first enacted, the idea was that certain crimes would require those convicted to serve at least that percentage of their assigned sentence before release. As a practical matter, however, the 85 percent rule evolved over two decades into a 94 or 95 percent rule -- with well-behaved inmates having little practical incentive to play by the professed rules.
In late April of this year, Fallin signed four bills that state Rep. Pam Peterson, R-Tulsa, had sponsored. Co-sponsor on three of the bills was state Sen. Greg Treat, R-Edmond. On a fourth the co-sponsor was Sen. Wayne Shaw, R-Grove.
One measure, as CapitolBeatOK reported in April, “gives prosecutors discretion to file charges for non-85 percent crimes as misdemeanors instead of felonies.” Another “reduces the minimum mandatory punishment for drug offenders charged only with possession.” A third, “raises the threshold for property crimes to be charged as a felony to $1,000.” And the fourth, “establishes means for broader use of drug courts and community sentencing.” The new laws take effect on November 1.
Oklahomans for Criminal Justice Reform has qualified two significant ballot measures that state voters will consider at the November 8 general election. No surprise, Kris Steele is the guiding light behind the pair of initiatives.
As Steele notes, our state still “has the second-highest overall incarceration rate in the country and the highest incarceration rate for women.”
According to a summary from Steele’s staff at the initiative group group, “State Question 780 would reclassify certain low-level offenses, like drug possession and low-level property offenses, as misdemeanors instead of felonies. By reclassifying these offenses, Oklahoma is able to trigger cost savings from decreased corrections spending.
“Second, Question 781 would then invest those cost savings into addressing the root causes of crime through rehabilitation programs to treat drug addiction and mental health conditions that often contribute to criminal behavior and go untreated in prison, and education and job training programs to help people find employment, and avoid going back to prison.”
A remarkably diverse group of Oklahomans have supported Steele’s push for new reforms, including the Oklahoma Council of Public Affairs, Oklahoma Policy Institute, the Oklahoma branch of “Smart on Crime” (a national group), the American Civil Liberties Union and state Rep. George Young, D-Oklahoma City.
Model “smart on crime” policies have advanced across America, including those pressed by the “Right on Crime” group that emerged from the Texas Public Policy Foundation. Their ideas, enacted into public policy, have helped diverted those who are not violent into treatment programs that include work and restitution.
Experts debate whether or not there is a link between crime rates and particular public policies. But after a half-decade of reforms pioneered under former Texas Gov. Rick Perry, violent crime fell 8.3 percent in the Lone Star in a single year – even as the incarceration rate fell 1.45 percent.
At the very least, those policies did not harm crime fighting, while imprisonment rates (and attendant costs) declined in the model states.
Some states have saved money while incapacitating the worst among us, and trying to salvage the rest. This is both practical, and moral.
Years ago, Daniel Van Ness of Prison Fellowship wrote in a book I compiled, "Crime involves four parties: the victim, the offender, the surrounding community, and the state."
The criminal justice process generally focuses only on the offender and the state. Yet, Van Ness noted, in the roots of Western law, the Old Testament, "all four parties were involved in fixing responsibility for a criminal act and in bringing restoration to the victim.”
The ideal of restitution (victim restoration), well explained in the writings of Van Ness and of former University of Oklahoma Law Professor Herb Titus, did not disappear in the New Testament. In the story of Zacchaeus (Gospel of Luke, 19:8), the repentant sinner pledges to Jesus that he will repay "fourfold" anyone he has wronged.
Restoration of victims and recompense from criminals continued as policy objectives into the modern era.
These inclinations were not quite eradicated during the dramatic expansion of incarceration rates for non-violent offenders over recent decades.
Still, as government grew more powerful in America, the role of mediating community institutions weakened. The resort to imprisonment became habitual. It replaced the function, utility, and moral purpose of non-governmental means to hold the guilty accountable, while reaching hearts and souls.
Some studies estimate non-violent offenders constitute one-third to perhaps one-half of the population of prisons and jails. Few analyses put the number at less than one-fourth.
Including all drug offenders might skew numbers, but the "one-fourth" vs. "one-half" numbers more or less represent the parameters of the debate over violent vs. nonviolent offenders incarcerated.
All of us should care, but people of faith should lead the way. Even those who have themselves been victims should not give up on those behind bars or in other forms of custody.
Convicts may be out of sight, but if they're out of mind, we're falling short.
In the 18th chapter of Genesis, the patriarch Abraham was visited by three men he discerned were actually Angels. They spoke with authority. Among other things, they informed Abraham and his wife Sarah that, after years of barrenness, she would bear a child.
Abraham learns the visitors are on their way to Sodom, to investigate its evil. In one of the great intermediary prayers recorded in all of Sacred Scripture, Abraham walks with the visitors, pleading for the minority to be spared.
He asks, what if there are 50 righteous men in the city? The angel responds that for the sake of those, he could spare the city. The sequence continues, through 45, 40, 30, 20 and 10. After Abraham's final plea, the angel says, "I will not destroy it for ten's sake" (Gen. 18:32 King James Version).
In that story, in the end, there were no righteous.
Judgment was terrible.
That was then. This is now.
What if, in Oklahoma's worst prison – the State Penitentiary in McAlester -- there are 50 people who could yet become "convicted" of the necessity to make amends for criminality? What if there are ten? What if there is one?
McAlester or any other facility should be a place where faith can be lived. Public policies should send to McAlester only those who absolutely need to be there.
Those who believe there is a final Judge -- One concerned for "the least of these, my brothers" (Matthew 25:40, KJV), including prisoners -- dare not abandon the ten, or even the one.
NOTE: This essay is revised from a commentary that appeared on the CapitolBeatOK.com website in April 2015. It has been been adapted and updated often since it first appeared, in 2009, in Perspective Magazine, monthly publication of the Oklahoma Council of Public Affairs. McGuigan is the co-editor of ‘Crime and Punishment in Modern America’ (1986, University Press of America).