Those old enough to remember the “Death Wish” films from the 1970s will recall that they were based on a vigilante’s response to an environment of runaway violent crime, against which an uninterested and ineffective law enforcement community had no adequate response. Part of the popularity of these films was that they played upon a sense among many that they reflected reality; and beginning in the 1980s Congress and state legislatures – including in Oklahoma – answered public anxiety with a “get tough on crime” philosophy that has manifested itself to this day in tougher sentencing laws.
Oklahoma has been one of the more enthusiastic adopters of the tough-on-crime model. The state ranks second in the country in the per-capita rate of incarceration, a noteworthy achievement considering that the United States leads the world in this category with an incarceration rate up to seven times that of other developed countries. Crimes that are considered misdemeanors in some other states are felonies in Oklahoma, and the “85 percent” rule here (which requires that those convicted of one of more than 20 types of crimes must serve at least 85 percent of their sentences) coupled with minimum sentencing guidelines for drug offenses combine to create an earned reputation for harshness of punishment.
Sentencing more people to prison for longer periods has had a number of predictable side effects: the state has spent tens of millions of dollars annually to temporarily house state prisoners in county jails because of a lack of bed space in the prisons, but instead of building new state prisons to house the increased number of inmates, the response has been to find new places in existing facilities to place beds. This, in turn, has led to one of the most significant immediate consequences of get-tough sentencing: serious prison overcrowding, possibly up to 50 percent or more of as-built capacity.
Other unintended results of lengthy incarceration include making it difficult for released prisoners to reintegrate into society, particularly with regard to seeking employment.
As the long-term effects of the policy of tougher sentencing policies become better known, a movement has begun to take form which questions whether Oklahoma is experiencing too much of what was originally thought of as a good thing. A variety of groups, such as Oklahoma Council of Public Affairs, The Oklahoma Policy Institute, the Reason Foundation and the Koch Institute have sought to bring public attention to the possibility of making changes to moderate some of the less-desirable effects, including sentencing reforms designed to offer alternatives to incarceration for nonviolent crimes and providing treatment for mental illness and drug addiction instead of prison.
Actual reform to Oklahoma’s sentencing policies and practices will require action by the state legislature. In the meantime, though, if securing an acquittal is not possible then another essential role of legal defense counsel will continue to be to ensure that juries in this state are fully informed of mitigating factors in their clients’ behalf, not only to secure the best possible outcome but also to add weight to the movement toward less draconian sentencing in line with the trend taking place in other states.