The Phillips & Associates Oklahoma Law Blog


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By Dustin Phillips on
June 9, 2016
January 26, 2022

Oklahoma has long had a problem with overcrowded, understaffed prisons. It has the dubious distinction of being the top incarcerator of women, and it has one of the top three incarceration rates in the nation. This is largely due to "tough on crime" policies that levied harsh penalties and prison terms for even relatively minor offenses. This is particularly true of the prosecution and punishment of drug crimes in Oklahoma.

However, things may be swinging away from a tough-on-crime approach and toward a "smart on crime" approach. Recently, Oklahoma Gov. Mary Fallin signed into law four criminal justice reform bills that will take effect in November.

The four bills—HB 2472, HB 2479, HB 2751, and HB 2753—make significant changes, including providing prosecutorial discretion in filing certain charges as misdemeanors rather than felonies and expanding the use of drug courts across the state.

HB 2472 is similar to a law passed last year that gave judges discretion in deviating from mandatory minimum sentences. This new law gives similar discretion to prosecutors by allowing them to file a misdemeanor charge for offenses which would ordinarily be charged as felonies. The new law, to be codified in 22 O.S. 234 reads as follows:

When determining the appropriate charge for a person accused of committing a criminal offense, the district attorney shall have the discretion to file the charge as a misdemeanor offense rather than a felony offense after considering the following factors:

1. The criminal offense for which the person has been arrested is not listed as a criminal offense in Section 13.1 of Title 21 of the Oklahoma Statutes;

2. The nature of the criminal offense;

3. The age, background and criminal history of the person who committed the criminal offense;

4. The character and rehabilitation needs of the person who committed the criminal offense; and

5. Whether it is in the best interests of justice to file the charge as a misdemeanor offense rather than a felony offense.

HB 2479 amends existing Oklahoma drug laws to lessen the penalties for certain drug crimes, particularly drug possession. Currently, a first offense of possession of a Schedule I or II CDS is punishable by 2 to 10 years in prison. Effective November 1, 2016, the new penalty will be a maximum of five years in prison. The penalty for a second offense of marijuana possession will similarly change; currently 2 to 10 years in prison, the new penalty will be 1 to 5 years in prison.

HB 2751 changes the property value threshold for charging white collar crimes as a misdemeanor or felony. Currently, these offenses are charged as misdemeanors if the value of stolen or embezzled property (or bogus check) is less than $500, but a felony if the value is $500 or greater. The new law raises the line between misdemeanor and felony to $1,000.

HB 2753 expands the number of offenders eligible for drug court—an alternative to incarceration. Under existing law, a person may qualify for drug court under the following conditions:

The offender:

a. admits to having a substance abuse addiction,

b. appears to have a substance abuse addiction,

c. is known to have a substance abuse addiction, or

d. the arrest or charge is based upon an offense eligible for the drug court program.

The new law adds another possibility for the offender to qualify for drug court:

f. is a person who has had an assessment authorized by Section 3-704 of Title 43A of the Oklahoma Statutes and the assessment recommends the drug court program.

These new laws should have the effect of creating more appropriate sentencing for drug offenders and non-violent offenders, reducing unnecessary and inappropriate incarceration.

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