Tulsa Attorney BlogState Question 805: What Is Sentence Enhancement? (Part 3)

If 805 Is Passed, It Will Essentially Abolish Sentence Enhancement in Oklahoma

Video Transcribed:   For Oklahoma State question 805, what is sentence enhancement? I’m Tulsa criminal attorney James Wirth. I’m doing a seven video series on State Question 805 and this video deals with sentence enhancement. 805, if that is passed, will essentially abolish sentence enhancement in Oklahoma. What is sentence enhancement? Oklahoma has the habitual offender statute and that deals with general enhancement and then also many crimes also have a specific enhancement.

The way that that works for general enhancement is if you are convicted of a felony and you have prior felony convictions, then the range of punishment that the jury can recommend that the judge can order changes based on those prior felonies. For example, it’s common on the statute.

There’s a lot of different ways that it can go. But if you are convicted of a violent offense, and that is meaning an offense on the violent crime list, which sometimes doesn’t mean commonsensically violent, but it’s just a list of those crimes.

If you commit one of those with a prior felony conviction, then that is going to increase your punishment to ten to life. If you’re convicted of a violent crime or you have a prior felony conviction, even if your prior felony might be larceny of merchandise from a retailer, but it’s an amount that makes it a felony, that’s a prior felony conviction. If it’s within 10 years, then your range of punishment automatically goes to a minimum of a 10-year sentence up to life imprisonment.

If it is two prior felony convictions, regardless of what those felony convictions are, if your new crime is on the violent crime list, then that is going to go up to a minimum of a 20-year sentence and then the maximum of life. For those violent crimes, 805 doesn’t change anything. 805 only applies to nonviolent crimes and what crimes are violent and nonviolent we’re going to cover it in the next video.

But for this purpose, I want to talk about just sentence enhancement. If it’s a non-violent crime, then typically the sentence enhancement if you’ve had prior felony convictions, if it’s one prior felony conviction, then depending on the severity of the new charge, it either goes to a range of punishment of zero to 10 years imprisonment where maybe before it was only up to two years or five years in jail, then it goes up to zero to 10.

Now, if it’s an offense that the range of punishment for the crime you’re being sentenced on by itself has a range of punishment that can go up above five years, then one prior felony conviction enhances it to two times the sentence and then up to life. Two times the minimum sentence, then up to life. Then if the crime doesn’t have a minimum sentence, the minimum sentence under this would then be two years.

If you have two prior felony convictions, then it goes to three times the minimum sentence up to life. Then the minimum, if there is no minimum if the minimum is zero, a zero to five, zero to 10, then the minimum goes to four years. Without those sentence enhancements in place for those crimes, then the jury must recommend a sentence within the range of punishment for the crime without enhancement and the judge must sentence them that way.

There’s some concern that this is taking away some discretion from the judge and jury to sentence more heinous cases. But I don’t know that that’s really accurate because it actually does grant … In a lot of cases, it grants more discretion to the judge where they have a wider range in which that they can sentence people by getting rid of the minimum sentences that come under habitual offenders.

A lot of crimes don’t have a minimum. Some do, but this makes the minimums much harsher and that takes away discretion from the judge and jury for many crimes where they may want to go lighter on them. That’s a general enhancement, but there’s also specific enhancement.

Specific enhancement deals with a specific crime. For some crimes in Oklahoma, say for a first offense, this is the range of punishment. For a second offense, then there’s another range of a punishment that’s more severe.

A number of years back, I handled an appeal for a lady who was convicted for trafficking of cocaine base, essentially crack, cocaine trafficking. Some things in the statute may not be what they seem or something in the language may not be what it seems.

When you talk about trafficking in the crack, that sounds like you’re a big-time drug dealer and you’re moving semi-trucks or at least trailers full of narcotics from state to state. But under the Oklahoma statute, they don’t always define things how you would expect.

Under Oklahoma, trafficking of crack cocaine at the time just meant that you had more than five grams of cocaine on you. The very small amount it took to constitute trafficking. But under Oklahoma’s trafficking statute at the time, if you had two prior convictions for drug offenses, even if it was just simple possession, if you had two priors and they’re used to enhance, then the sentencing range went from something that had a large range to something has a very small range.

Because at that point there’s only one thing that the jury has the authority to recommend and only one thing the judge can sentence and that is life without the possibility of parole. In this case, at trial, it was a very weak case. She was arrested for a traffic violation, was brought into custody.

She was searched at the site of the traffic violation. But then after she was taken out of the police car and put into custody, they did a search of the car, the police car, and they found these narcotics, this crack that was above the amount that’s required for it to be trafficking.

It’s a weak case because she was already searched. They found nothing. How do we know that came from her? There’s a lot of factual issues. But the jury went ahead and found her guilty, found that the state had made their case and then they went back to determine the sentence.

At that point they start introducing the prior felony convictions and then give the range of punishment and the jury I’m sure was horrified to learn that although they thought this person was guilty, they are now forced to sentence that person to life in jail without any possibility of parole. That’s what sentence enhancement can do in a lot of these cases.

That’s why some people are concerned about it. Now I can tell you that that person that did get that sentence has now been released, was released under commutation from Governor Stitt after serving a fair amount of time in prison.

We have made progress in criminal justice reform that I think makes the system a little bit fairer, but I wanted to give you an example of bad results that you can get from sentence enhancing where it takes away discretion from the jury and discretion from the judge. If you’ve got questions about specific circumstances in a case, you can contact an attorney about those. If you want to talk to somebody in my office, you can go to makelaweasy.com.

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