Minimum Sentences Optional for Some Offenses
A second conviction for marijuana possession in Oklahoma until now would result in a mandatory minimum two year sentence. After November 1, 2015, judges will have more discretion. That is when judges will no longer be required by statute to impose Oklahoma mandatory minimum sentences for some non-violent offenses in Oklahoma.
The legislative move to return of some discretion to Oklahoma judges is another indicator of a growing nationwide trend away from aggressive sentencing that has dominated criminal justice legislation in recent decades. The trend follows a nationwide increase in prison populations that has complicated state budget shortfalls and raised safety concerns about over-crowded, understaffed lockups.
The extent to which the new law will reduce prison crowding in Oklahoma, if at all, depends on the extent to which judges choose to exercise newly restored discretion. At best, the first impact of reduced sentencing will be at least 5 months out, when the law takes effect later this year.
If judges in November, 2015, begin sentencing people convicted of simple drug possession to one year instead of the current minimum of two years, the result in reduced population would be 17 months out. Probation or a suspended sentence in those cases could result in more immediate reductions in prison populations.
Judges Must Explain Departures from Minimum
Judges who exercise discretion under the new law will be required to explain – on the record – substantial and compelling reasons the mandatory minimum either:
- is not necessary to protect the public and will result in substantial injustice to the defendant or
- is not necessary to protect the public and the defendant has been accepted for diversion or community sentencing programs.
Several categories of crime are excluded from the new exception to mandatory minimums. For any crime that requires registration as a sex offender, drug trafficking crimes involving certain quantities of drugs, all offenses involving firearms, and crimes that require serving 85 percent of an imposed sentence, judges may not depart from any minimum sentencing mandates found in Oklahoma law.
Those convicted under the Oklahoma Anti-Terrorism Act, which includes attempts, conspiracies, hoaxes, preparations and financial transactions related to terrorism, must be sentenced to at least mandatory minimums. Terrorism is defined, in short, as violence or threats to coerce grants of “illegal political or economic demands.”
Likewise, defendants who were “the leader, manager or supervisor of others in a continuing criminal enterprise” must be sentenced to at least mandatory minimums.
Only those convicted of non-violent offenses may be sentenced to less than mandatory minimums, which excludes a long list of other charges:
- assault, battery, or assault and battery with a dangerous or deadly weapon;
- aggravated assault and battery on a police officer, sheriff, highway patrolman, or any other officer of the law;
- poisoning with intent to kill
- shooting with intent to kill
- assault with intent to kill
- assault with intent to commit a felony
- assaults while masked or disguised
- murder in the first degree
- murder in the second degree
- manslaughter in the first degree
- manslaughter in the second degree
- burglary in the first degree
- burglary with explosives
- kidnapping for extortion
- robbery in the first degree
- robbery in the second degree
- armed robbery
- robbery by two (2) or more persons
- robbery with dangerous weapon or imitation firearm
- child abuse
- wiring any equipment, vehicle or structure with explosives
- forcible sodomy
- rape in the first degree
- rape in the second degree
- rape by instrumentation
- lewd or indecent proposition or lewd or indecent act with a child
- use of a firearm or offensive weapon to commit or attempt to commit a felony
- pointing firearms
- inciting to riot
- arson in the first degree
- injuring or burning public buildings
- criminal syndicalism
- obtaining signature by extortion
- seizure of a bus, discharging firearm or hurling missile at bus
- mistreatment of a mental patient
- using a vehicle to facilitate the discharge of a weapon with intent to kill or with conscious disregard for safety.
What Oklahoma Mandatory Minimums Are Affected
With mandatory minimum sentences for violent crimes, firearms offenses, sex offenses, drug trafficking offenses and terrorism offenses left intact, what offenses have mandatory minimum sentences that judges can waive?
The group of offenses where minimum sentences most likely do not protect society but cause injustice to defendants and result in crowded prisons are drug crimes. Specifically, it would be drug crimes where quantities of drugs are less than the thresholds set in the drug trafficking laws.
Drug crimes for which mandatory minimum sentences can be waived include those involving:
- Less than 25 pounds of marijuana
- Less than 1 ounce of cocaine
- Less than 5 grams of cocain base
- Less than 10 grams of heroin
- Less than 20 grams of methamphetamine
- Less than 20 grams of PCP
- Less than 1 gram of LSD
What drug crimes remain after trafficking crimes are excluded? Oklahoma mandatory minimum sentences are imposed in several possession and possession with intent to sell laws. Any of those not considered drug trafficiking may be eligible for departure from mandatory minimums.
Possession of with intent to sell LSD, GHB or Schedule I or Schedule II narcotics including heroin and cocaine in Oklahoma carries a minimum sentence of 5 years on first offense. Possession with intent to sell all other drugs on Schedules I, II, III of IV, including marijuana, requires a mandatory minimum of 2 years imprisonment. School zone or public park enhancements double those mandatory minimums.
Manufacturing methamphetamine or LSD carries a mandatory minimum of 7 years. Simple possession of Schedule I or II drugs, not including marijuana requires a mandatory minimum of 2 years on first offense and 4 years for a second offense.
Mandatory minimums kick in on the second offense for simple possession of marijuana or of Schedule III, IV and V drugs: 2 years minimum within 10 years of a prior offense, and 1 year minimum if more than 10 years have lapsed since a prior offense.
Under the 2015 Oklahoma mandatory minimum sentencing reform, judges could sentence defendants to less than those mandatory minimums.
Another group of cases affected by minimum sentence reform involve enhanced penalties for second or third offenses. After conviction for another felony, second convictions for offenses with a possible sentences of more than five years on first offense result in doubled minimum sentences. Second convictions for any other felony can result in two year minimums.
On a third conviction, those same enhancements can result in three times the minimum sentence, or at least four years minimum. Under the minimum sentence reform, Oklahoma criminal defense lawyers can ask judges to depart from those enhanced minimum sentences for repeat offenders.
A third group of non-violent, non sex offenses that carry minimum sentences can be found scattered through Oklahoma’s criminal code. In some of those offenses, the mandatory minimum reform could make it easier for judges to sentence defendants to prison.
These involve cases where the law requires either a mandatory minimum sentence, or a fine. Running a roadblock, for example, requires either a minimum 1 year prison sentence, a fine or both. The law sets no minimum fine, but until November 2015 does not not allow judges to sentence a person to less than 1 year in prison if a prison sentence is imposed.
Under minimum sentencing reform, prosecutors could conceivably argue for departure from the minimum sentence – perhaps asking for 30 days or six months jail time rather than choosing between a fine or one year in jail. From a realistic perspective, though, defense attorneys often successfully negotiate deferred or suspended sentences on first offense for many crimes in this category.
Offenses in the somewhat odd category that allows either minimum imprisonment, a fine or both include several crimes involving public officials:
- Compelling the legislature to pass a bill
- A legislator soliciting money to secure employment
- Accepting a gratuity for a public appointment
- Preventing legislative meetings
- Police or District Attorneys failure to perform official duties
Other crimes not involving public officials in the the fines or minimum imprisonment group include:
- Unauthorized entry into a jail or prison
- Raising an unauthorized flag over a public building
- Slander by imputation of inchastity
- Permitting use of a building for syndicalism
- Altering, destroying or falsifying corporate papers
- Dogfighting, including keeping or training dogs for fighting
- Possession of more than 1 pound of mercury without proper documentation
- Unlawful reproduction or sale of sound recordings on second offenses
- Procuring tobacco for minors
- Using quarry explosives near a church or school
Other than those unusual fines-or-minimum-prison offenses, the 2015 reform could result in reduced minimum sentences for:
- Acquiring more than $10,000 in proceeds from illegal activity
- Larceny of merchandise worth more than $1,000, or more than $500 on third offense
- Malicious injury with a bomb, gunpowder or offensive substance
- Second, third or fourth degree arson
- Public official receiving kickbacks
- Embezzlement by a public official
- Solicitation of murder
- Malicious mischief to a railroad resulting in death
- First degree forgery
- Possession of restricted ammunition
- Defacing legal notice of mining claims
- Removing piles used to secure a dam
- Intentionally producing defective materiel for use in warfighting
- Conducting a gambling operation
- Procuring abortion
- Fraudulently assisting a felon to escape
- Assisting suicide
- Trafficking in children
- Bribing a legislator or accepting a bribe as a legislators
Oklahoma’s Overcrowded Prison System
Oklahoma’s minimum sentence waiver law – the Justice Safety Valve Act of 2015 – takes its name from a bipartisan federal measure advanced under the same name in 2013. Introduced by now Republican presidential contender Rand Paul in the Senate and by Virginia Democrat Bobby Scott in the House, the federal act stalled in committee hearings.
Oklahoma’s move to back away from mandatory minimum follows Oklahoma Dept. of Corrections reports earlier this year that the state prison system population had soared to 116 percent of rated capacity. Excluding population in community corrections and other less secure facilities, the main prison facilities were at 119 percent population.
The surge followed a move to more quickly transport recently sentenced inmates from county jails, where the state paid daily rates to counties for temporary housing. In Tulsa County, the sheriff lauded the move, but some county sheriff’s decried the loss in revenue.
When the population soured to near 20 percent beyond capacity, Oklahoma joined at least 17 other states that the Washington Post had reported to be beyond capacity in 2014. California’s prisons remained near the top of the list, at 143 percent of capacity.
In 2011, the U.S. Supreme Court in Brown v. Plata concluded that California’s overcrowded prisons amounted to cruel and unusual punishment, contrary to the Eighth Amendment. Aggressive sentencing policies, including a three-strikes law that sent three-time felons away for life had crowded the state prisons. That state in fiscal 2013 spent 7 percent of the state budget to fund corrections programs and facilities.
Oklahoma’s High Incarceration Rate
Oklahoma does not yet top the list of overcrowded corrections systems, but the state does have among the highest incarceration rates, ranking third nationwide in 2013. Oklahoma incarcerates 659 of every 100,000 residents, compared to a national average of 417 per 100,000. Oklahoma leads the nation for incarceration of women, with 130 per 100,000 nearly doubling the national average of 67 per 100,000.
The state’s extremely high incarceration rate may be only in part the result of a higher than average crime rate. Oklahoma ranked ninth nationwide for reported crimes per capita in 2013. Conversely, Oklahoma was nine from the bottom – 41st nationwide – in spending per inmate.
Oklahoma’s overcrowded prisons may also trigger early release for some nonviolent offenders. A state law allows the Pardon and Parole Board to consider early release for inmates convicted of non-violent crimes who are within 6 months of their release date.
The legislature’s mandate that judges provide reasons on the record for departing from minimum sentences raises an interesting question. If legislators anticipate that judges will find the legislature’s sentencing laws unjust, why not reduce or repeal minimum sentences entirely?
Instead, the legislature has left it to defendants to explain to the courts why a minimum sentence would be unjust – and why a lesser sentence would not pose a threat to the community. Defense attorneys might argue that sentencing non-violent first offenders to dangerously overcrowded prisons is unjustly cruel and unusual punishment, citing the Supreme Court’s ruling against California prisons.
Or, Oklahoma criminal defense attorneys might present to judges arguments familiar in pleas for probation or suspended sentences – that the defendant had committed one mistake that will not be repeated, regardless the punishment handed down. More severe punishment would do nothing to reduce an already unlikely repeated offense.
Free Consultation: Oklahoma Defense Attorney
If you are facing charges for a nonviolent crime in Oklahoma for which you might be facing a mandatory minimum sentence, the timing and strategy of your defense may be crucial.
For a no-cost, no-obligation consultation with a Tulsa attorney, call my office (918) 879-1681 or send your question using the form at the top of this page.