Tulsa Attorney BlogState Question 805: What Is A Violent Crime Under 805? (Part 4)

SQ 805 Could Change the Future of Oklahoma

Video Transcribed: What is a violent crime in Oklahoma for the purpose of Oklahoma state question 805? I’m Tulsa attorney, James Wirth. I’m doing a seven-part series regarding questions related to state question 805. We’re on video four, and that is, what is a violent crime? So, there’s been a lot of contention in the various proponents and the opposition to 805 about this issue. And the opponents say that domestic violence by strangulation is not a violent offense.

And because of 805, if 805 were to pass, that means that there would be sentence enhancement for people convicted of domestic A and B by strangulation. And there’s some truth to that, although it may not be as much as the fear that people are trying to put into it. But I just want to talk about what is a violent crime?

First off violent crime does not mean what the common-sense definition of violent crime might be or what the Webster’s dictionary violent crime definition might be. When it comes to the law, definitions are what the statute says it is. And even if it’s nonsensical, that’s what the definition is.

So, if we look at the definition of violent crime, that is a statute that was passed a number of years back. And it was put in place so that we could differentiate felony crimes for determining parole, and expungement, and other things. So, we came up with a list where parole is more difficult, expungement is not possible or more difficult, and we labeled that a list of violent crimes.

And that’s Oklahoma statute title 57, section 571. And it goes through a number of crimes, some of which are obviously violent, some that are not so violent. And then, there are violent crimes that may commonsensically be violent that are not on the list.

So, some interesting ones that are listed as violent are extortion, not necessarily something I’d consider common sense violent, obtaining a signature by extortion, mistreatment of a mental patient. Obviously, these are bad things, but is it something that you would consider to be violent? And I think the mistreatment of mental patients is a good example of this, to where definitions aren’t always what you seem.

For that one, for that particular offense, we can look to see how it is defined. And it is defined by statute. This is the violent crime of mistreatment of a mental patient to include abuse, neglect, exploitation, or committing financial neglect. So, along with that definition for it is committing financial neglect. So, what does that mean? Well, there’s another statute that defines that. Let’s look at the statute for committing financial neglect.

And what financial neglect can mean is just negligently mismanaging the money or providing substandard care. Now, negligently mismanaging a mental patient’s money is a violent felony statute, felony crime under the statute. Well, that doesn’t seem common sense, the type of violence that we’re talking about here. But it just illustrates the point that just because it’s listed as violent in the statute does not really mean that it’s violent, common sense wise.

What it really means is that it’s a statute that lists crimes for specific purposes, like making parole more difficult, or denying expungements, or, in this case, the application of sentence enhancement under state question 805. So, if you’d like to look at the statute regarding what includes violent crimes, there’s a number of them in there.

Poisoning with intent to kill, shooting with intent to kill, assault with intent to kill, murder in the first degree, murder in the second degree, manslaughter’s first and second degree, burglary, kidnapping, maiming, robbery, armed robbery, child abuse, forcible sodomy, many types of rape, pointing firearms, rioting, assigning a riot, sabotage, human trafficking, terrorism. There’s a number of crimes listed on there.

Some things that are not listed on there, though, are misdemeanor offenses. If you go up and punch somebody in the face, that sounds violent to me, but you’re likely to be charged with assault and battery, which is a misdemeanor offense, and there are no misdemeanor offenses on here. Likewise, if you’re in a relationship, and you punch your partner, that’s domestic violence. If you don’t cause serious injury, that’s going to be a misdemeanor, and it’s not on the violent list.

And that brings us down to one of the concerns that have brought up, and that’s domestic A and B by strangulation. And it is not on the list that I read, but what’s interesting is that it’s on the list now. This statute was amended starting November 1st of 2020.

And that amendment adds in a brand new subsection that adds to the definition of violent events. Domestic abuse by strangulation, domestic assault with a dangerous weapon, domestic assault and battery with a dangerous weapon, or domestic assault and battery with a deadly weapon.

So, all of these things were added on November 1st of 2020. Why are they not considered a violent offense under state question 805? Well, that’s because there’s a provision in 805 that defines a violent felony as offenses listed in the violent offense statute as of January 1st, 2020.

Why did they put that date on there? Well, it’s the same reason that this is done as a constitutional amendment as opposed to just a general change to the statute. And that is they don’t trust the legislature. They want the people to make the determination. They are afraid the legislature is going to try to undo it. And by leaving it open that it’s whatever crimes are included in the statute, then they’re allowing the legislature to determine what crimes fall under this and what don’t.

And they didn’t want to do that because the legislature could pass new crime and say, “Well, now every crime is a violent crime. We’re going to list every offense in section 571 now.” And then, that would make state question 805 meaningless. It would have no effect at that point because it only applies to nonviolent offenses. In order to avoid that, they put the time limit on there, and said, “No, it’s the statute of violent crime under 571 as of January 1st of 2020.”

So, hopefully, that answers your questions regarding what is and what is not a violent crime, and lets you know that it’s not always what it seems as far as definitions because the legislature often does change definitions, and expands them, and makes them broader to make criminal prosecution easier and make it easier for the state to prove certain elements.

Like we saw in the case of a vulnerable mental patient, where that’s considered a violent crime, even if it was simply mismanagement of funds, that is a felony that’s considered to be a violent felony, oddly enough. If you’ve got questions about a specific circumstance, though, you’re going to want to talk to an attorney about that. If you want to talk to somebody in my office, you can go to makelaweasy.com.

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