Proponents of State Questions 780 and 781, criminal justice reform measures which passed Tuesday and end the ability of district attorneys across the state to file felony charges following “simple” drug possession arrests, spent Wednesday celebrating.
But the district attorneys who opposed the bills spent the day in a much more somber mood.
State Question 780 reclassified the possession of “personal use” amounts of controlled dangerous substances like heroin, methamphetamines, or cocaine from felony crimes to misdemeanors. (First offense marijuana possession arrests were already misdemeanors.)
It also changed the threshold for what property crimes ( theft, or forgery) ended up in a felony charge. Previously, property crime over the $500 mark was a felony — now that threshold has been bumped up to $1,000.
The idea is to lessen the burden of incarceration on the local and state level, and State Question 781 is meant to divert money saved from that benefit to increase treatment options for drug offenders, be it expanded drug courts, or mental health courts.
However, district attorneys across the state were left on Wednesday fearing for smaller Oklahoma communities who already lack widely available, readily accessible treatment facilities. The new laws go into effect in July, but they question how long it will take for the proposed cost savings to trickle down to the local level.
And if that money arrives as scheduled, they wonder how long it will be until rural communities can turn it into treatment.
John David Luton, the first assistant district attorney for Tulsa County, said on Wednesday that “the fine print” of SQ 781 leaves the administering of what will be newly funded treatment facilities to county commissioners across the state.
“The problem is that many of these communities don’t have the options that we do here in Tulsa,” Luton said. “We’re fortunate in Tulsa to have funding for drug court, or mental health court, or veterans court, or women in recovery. But if you go to Adair County, or other counties, that type of thing isn’t there to the degree it is here. So where are people going to find that treatment?”
District 27 (Wagoner, Adair, Cherokee, and Sequoyah counties) District Attorney Brian Kuester said that he, too, questions how long it will take for some Oklahoma communities to receive the funding to launch these expanded treatment options.
“I think Tulsa, and Oklahoma County, areas that are a little more urban, will find themselves with options in the meantime,” Kuester said. “But how long will it take for others to catch up? And what do people do until then?”
Brady Henderson, legal director for the Oklahoma ACLU said on Wednesday that it would be at least a year before any of the savings would be allocated to the local level for treatment programs.
“But you’re going to have DA’s offices who are saving time by prosecuting 100 misdemeanor drug cases instead of 100 felony cases. We know misdemeanor cases take less time in the courtroom, so that is time that’s more efficient, which saves money,” he said. “And there will be savings by not incarcerating these offenders. Our hope is that the cost-savings there is invested locally.
“One thing I hope to see is innovation that you can develop on later.”
Henderson admitted that it will take time for smaller rural communities to develop the infrastructure to deal with the changes due to SQ 780, but, he noted, “What we’re doing now isn’t working.”
Oklahoma has for years found itself incarcerating more people per capita than most states (in 2013, Oklahoma was next to last, incarcerating about 1,300 adults per 100,000, more than all other than Louisiana.)
“Realistically, it will take some time to build that infrastructure,” Henderson said. “What 780 and 781 do is not fix the problem totally, they’re not magic bullets. What passing them does is give us the chance to fix the problem. We didn’t have that chance before.
“We haven’t ever really as a state stepped back and taken a look at the problem. I think we have some big changes coming up.”
What will also change via the passing of SQ 780 is the process of getting an offender into treatment. Kuester said someone arrested for drug possession for a first time is typically given the ability to bypass a felony conviction by accepting a deferred sentence. Rather than prison time, they would be given the opportunity to stay clean and trouble-free for a period of time. If successful, their record remains clean.
A second offense, Kuester said, usually ends in a suspended sentence, and probation or community service.
A third offense? That’s where drug courts will first enter the scene, Kuester said. A last chance to avoid prison, drug courts can mandate treatment as a trade for a lack of incarceration.
“By a fourth or fifth offense, those are typically the offenders who head to (prison,)” Kuester said.
That “graduation” of severity has been the process DA’s have used to convince drug users to go to rehab, he said. Maybe keeping their record clean isn’t enough to convince them, but after a few arrests, few want to go to prison and opt for rehab.
But come July, the maximum punishment in Oklahoma for possessing personal use amounts of a narcotic will be one year in the county jail. And with many jails overcrowded as it is, Kuester said it won’t be long before drug users realize that they may only have to spend less than a month in jail before being released for a more “high-priority” inmate.
“Jails are by and large used to house people awaiting trials for serious crimes, so if you have one bed open, and you have to fill it with a methamphetamine arrest, or a guy with a murder charge, who does that bed go to?” he asked. “I think the answer is obvious.”
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