Can We Incarcerate Everyone Who Breaks a Law:
The Present Oklahoma Prison System is Unsustainable
U.S. Justice Bureau statistics show that Oklahoma has one of the highest overall incarceration rates in the country, and the highest incarceration rate for women. According to the Oklahoma Department of Corrections, in their 2015 Annual Report, 52% of Oklahoma’s prisoners were being held for non-violent offenses, and that of those, 26.3% were directly related to drug possession and distribution or manufacture. Of the remaining 22.7% of non-violent offenders, it is almost certain that the majority of those offenses were related to drug abuse, whether it be larceny and property crimes committed to obtain the money for purchasing drugs, or the irrational or dangerous actions that people sometimes take while under the influence of alcohol or drugs. The Federal Bureau of Prisons recently released statistics showing that over 50% of federal prisoners are being incarcerated for drug offenses. As a public policy matter, but also as a simple economic inevitability, the State and Federal systems must prioritize offenders by the degree that they endanger public safety, and to halt the warehousing of our citizens for crimes which are primarily a danger to the offender and not society as a whole.
It is not economically feasible to continue to build prisons to house offenders, rather than implementing programs that will alleviate the prison overcrowding problem such as drug treatment and mental health treatment. Department of Corrections Director, Joe Allbaugh, has implemented a hiring freeze as part of a plan to save about 3 million for the fiscal year. While discussing the budget shortfall Mr. Allbaugh stated that a long-term solution is needed, which in his opinion means more space to house the growing number of inmates, and more resources to treat their health problems behind bars. It is perhaps understandable that the director of a state agency would support more money and influence being afforded to his agency, but the sensible solution would be to limit prison sentences to people who are a danger to the public. Obviously, violent offenders should be incarcerated to protect the public from repeated violence.
Allbaugh is requesting a budget of 1.6 billion dollars for this fiscal year, in part to fund two new medium security prisons at a price tag of 840 million dollars. That amounts to a 200% increase over the previous fiscal year. It’s hard to blame Mr. Allbaugh for the request. The state prisons are reported to be at 109% capacity presently, and there are hundreds more inmates being held at county jails awaiting transport to prison. However, the sensible solution would be to provide alternatives to incarceration, such as treatment facilities for drug addiction and mental health.
In Oklahoma, the possession and distribution of certain substances considered “dangerous” are controlled by statutes contained within the Uniform Controlled Dangerous Substances Act. This law was enacted in 1971 under Title 63 of the Oklahoma Statutes which pertains to Public Health and Safety and replaced the Uniform Narcotic Drug Act. The law places substances into five categories, or “schedules”, of perceived threat to public safety. These schedules are said to be determined by taking into account the substances’ potential for abuse or dependency, and the accepted medical usage of the substance. Interestingly, marijuana was placed and remains, in the Schedule I drug classification, which places it in the highest category of threat to public health.
Trafficking of illegal drugs is addressed in 63 O.S. 2-415, and sets out penalties for possessing a certain amount of a drug. It does not require intent to distribute the illegal substance, but possession of the following amounts of the following substances:
Until recently someone convicted of trafficking who had two prior drug possession convictions was sentenced to a mandatory life sentence without the possibility of parole. This provision was amended in 2015 to a 20 year minimum sentence, which is a very harsh sentence in most situations. A person who is arrested for simple possession twice, who then possesses 5 grams of crack or 1 gram of LSD, would be faced with a minimum sentence of 20 years in prison with no possibility of probation.
Although arguably less dramatic, but equally unfair, is the fact that persons convicted of trafficking in illegal drugs and sentenced to prison, are denied earned credits or “good time” for the entire length of their sentence, which dramatically affects the length of sentence that they must serve. An inmate can earn up to 60 “credits” per month, which relates to 90 days credit for 30 days served. This amounts to a prisoner convicted of trafficking in drugs being incarcerated for three times as long as other prisoners given the same length of sentence. That is, unless they are convicted of Aggravated Trafficking, which involves the possession of much greater amounts of the substance than simple Trafficking. For example, 1,000 pounds of marijuana rather than 25 pounds or 450 grams of methamphetamine rather than 20 grams. Oklahoma Department of Corrections officials interpret the Oklahoma statutes to allow for earned credits for the more serious offense, but not for the less serious.
Two of the commonly-accepted purposes for imprisonment, Protection of the Public and Rehabilitation, are being subverted by the laws pertaining to drug possession and distribution. Economically, we can not afford to incarcerate such a high percentage of our citizens, nor should we. American Correctional Association president, Chris Epps, put it this way, “prisons are full of non-violent offenders serving lengthy and mandatory minimum sentences. Our members work hard every day to keep staff, inmates, and the public safe, but the current system is unsustainable. The solution must come from lawmakers, and it must target the long sentences that got us in this mess in the first place. Legislators, prosecutors and judges need to differentiate between who we are afraid of and who we are just mad at, and then sentence each appropriately.”
Mr. Swant attended Oklahoma State University and obtained a B.S. in Finance, and then earned a law degree at the University of Tulsa College of Law. Mr. Swant is licensed to practice in the Oklahoma State District Courts, the Northern and Eastern Districts of the United States District Court, the Oklahoma Municipal Courts and Osage Tribal Court.