A year on, drug sentencing reform still debated
When State Question 780 became law last year, it reduced the crime of drug possession from a felony to a misdemeanor.
What the law didn't do, however, was apply retroactively to earlier felony convictions in the drug trade, a point of contention among criminal justice reformers, district attorneys, lawmakers and people behind bars.
The statewide ballot initiative was written to help stabilize and eventually reduce the number of people going into prison, while focusing the state's efforts on addiction treatment and rehabilitation rather than incarceration. But while Oklahoma law now categorizes those crimes differently, many people remain in prison on old drug charges that would have been misdemeanors after July 1, 2017.
It can be argued that one of those people is Chad M. Mullen, a 26-year-old from Seminole County who is sentenced to serve the next nine years behind bars on drug possession cases from 2013 and 2016. In a letter to The Oklahoman, Mullen wrote that if the Legislature and Oklahoma's prison system are serious about criminal justice reform, people like him should be give the opportunity for early release.
"Here I am, Chad Mullen with 2,600 days left on a 10-year sentence for an addiction," he wrote. "I need help. I am ready for recovery. Actually past due."
Other inmates have appealed to the court system, asking that the new law be applied to old crimes. The efforts so far have been in vain.
Robert Morgan Woodral asked the Le Flore County District Court to review his case and modify his life sentence for drug possession. Woodral, who has more than a dozen other felonies on his record from drugs and stolen property charges, argued that his attorney didn't use the newly adopted State Question 780 in an earlier appeal.
The district court rejected his application for post-conviction relief, and the Oklahoma Court of Criminal Appeals affirmed the decision in June.
"This Court has repeatedly held that absent an express indication that the Legislature intended an amendment to be applied retroactively, petitioner is subject to an application of the law in effect at the time he committed the crime," the unanimous court wrote.
Kevin Buchanan, president of the Oklahoma District Attorneys Council and prosecutor for Nowata and Washington counties, said Oklahoma's 27 district attorneys have to follow the law.
"I know people sometimes feel like that sounds unfair that on June 30 of last year, someone had a drug possession charge and on July 1 they had a drug possession charge, and one's a felony and one's a misdemeanor," he said. "But the bottom line is as citizens, we're all charged with knowing what's right and knowing what's wrong. If we choose to commit a crime, we have to suffer the consequences of it."
For Mullen, his ultimate sentence came about after failing to meet the guidelines of drug court guidelines. The court in Seminole County last year revoked the conditions of his participation in the treatment program because he allegedly failed to appear on several court dates and failed drug tests.
Still, Buchanan said DAs tend not to send people back to prison for violating terms of probation.
"I think we evaluate those on a case-by-case basis. We try to look at them as individuals the best they can and see where they are, and what they're doing," Buchanan said.
Inmates can apply for early release, but have to go through the Pardon and Parole Board first. If they get that recommendation, the governor then decides whether to let them out.
"Criminal justice reform and smart-on-crime policies have been longtime priorities for the governor, and will continue to be a priority for (Gov. Mary Fallin)," said spokesman Michael McNutt. "Any type of pardon, parole, or commutation has to be approved first by the Pardon and Parole Board."
At the Legislature some lawmakers are interested in debating the issue of retroactively applying State Question 780 to older crimes. Jon Echols, who serves as House majority floor leader, said Oklahoma's burgeoning prison population has become both a fiscal and humanitarian issue. The Department of Corrections this year asked for $1 billion budget increase, in part to help build two new prisons.
The Legislature didn't approve that request, but they could examine a bond issue in next year's session.
"I would have a great deal of interest and would be willing to work on sentencing reform for low-level, nonviolent drug offenders," said Echols, R-Oklahoma City, adding that lawmakers could look at retroactive sentencing and enhanced monitoring programs. "The people have told us they would like some form of that to take place."