In November, Oklahomans voted overwhelmingly to reform their bogged-down criminal justice system. In one of the most conservative states in the country, voters approved two referendums to make low-level drug and property crimes misdemeanors instead of felonies and to use the subsequent cost savings to fund rehabilitation programs. The will of voters won’t necessarily become enacted as state law, though. The referendums were put forward as “state questions” rather than binding constitutional amendments, which means the Oklahoma Legislature can edit the reforms any way they want before they go into effect on July 1. State representatives are using that power to try to stop criminal justice reform before it takes root.
Oklahoma’s House of Representatives approved a bill on Thursday that would once again make it a felony to possess any amount of drugs within 1,000 feet of a day care facility, school, university, park, or church—or around any child under the age of 12. Those “enhancement zones” would cover a huge swath of the state’s biggest cities, essentially making drug possession a felony again in most places where Oklahomans live. If the bill passes in the Senate and gets the signature of Republican Gov. Mary Fallin, it will essentially gut policies that were approved by voters just a few months ago
In pushing for this legislation, Oklahoma politicians are following the lead of the state’s district attorneys. The anti-reform bill is backed by the powerful Oklahoma District Attorneys Association, and most of the DAs in the state have criticized or opposed the referendums. “The district attorneys who opposed our reforms are very influential within the state legislature,” said Kris Steele, former Republican speaker of the State House and one of the leaders of the pro-referendum campaign. “They are good at scaring and pressuring and manipulating lawmakers into passing policies that ultimately benefit their position.”
District attorneys have been working hard to prevent these reforms from being implemented, even in counties that overwhelmingly supported the referendums. In the state’s most populous district—Oklahoma County, which includes Oklahoma City—the referendums passed with almost 70 percent of the vote. But District Attorney David Prater has been publicly critical of the ballot measures, arguing that the threat of long prison sentences is necessary to incentivize drug addicts to change their behavior. The district attorney in Tulsa, where 65 percent of voters supported the reforms, has also voiced his opposition. “Proposition 780 will make Oklahoma the most liberal drug possession state in the union,” Steve Kunzweiler said in a statement, apparently ignoring the states that have decriminalized or legalized marijuana.
Kunzweiler and other district attorneys have repeatedly tried to draw unfounded connections between low-level drug possession and violence, gang activity, and even murder. Cleveland County District Attorney Greg Mashburn, for one, has argued that the failure to obtain harsh sentences for drug possession could let defendants go free to commit more violent crimes. “I will have a conversation with a family with a guy who’s been six times in the county jail for meth, and then he kills somebody,” he told KFOR. “And, I will have to tell them, if the law hadn’t changed, I might have stopped this guy.” (The referendums passed with 66 percent of the vote in Cleveland County.)
The district attorneys’ rhetoric has now been adopted by the state legislature. Scott Biggs, the state representative who introduced the enhancement zone bill, says that voters didn’t realize what they were doing. “After hearing from my constituents after the election, I believe there is a large group of voters that didn’t understand that this state question would essentially decriminalize drugs in schools, parks, and playgrounds,” he said. “I’m all for cleaning up our books to have a more efficient justice system but not at the expense of our children.”
To be clear, the ballot measures that Biggs seeks to overturn didn’t have any effect on state laws about the sale or distribution of drugs. After the passage of those two referendums, a drug dealer hawking kilos on a playground will still be eligible for a felony charge, and possession of drugs on school grounds is also still a felony. Yet, under Briggs’ safe zone bill, young people caught with pot at their high school or college campus could face lifelong felony records.
The bill working its way through the legislature threatens to continue the tradition of draconian punishments for low-level crimes that has long defined criminal justice in Oklahoma. The state has the second-highest incarceration rate in the country, and incarcerates both women and black people at a rate higher than any other state. There’s an overcrowding crisis in the state’s prisons, which are currently at 115 percent capacity, and more than half of the inmates suffer from mental health issues. A staggering 1 in 12 residents is a convicted felon, facing lifelong barriers to employment, housing, and education. Many crimes that are misdemeanors in other states, like low-level drug possession, are felonies in Oklahoma. If a first-time offender is caught with any marijuana in Oklahoma, he can go to jail for a year. Twice, and he could go to jail for 10 years. Until 2015, some nonviolent drug offenses could land you in jail for life without parole.
But it’s not just the harsh laws that are the problem: It’s the prosecutors. Oklahoma’s district attorneys could decide to charge fewer crimes as felonies, helping to alleviate Oklahoma’s bloated prisons problem on their own. Instead, many still cling to a draconian, tough-on-crime ethos that most states have sworn off. In the last six years, 31 states have managed to reduce incarceration while also reducing crime. In contrast, Oklahoma’s prison population has grown by 9 percent in the last five years. How is that happening? Consider that in 2016, Prater, the district attorney of Oklahoma County, filed more than 10,000 felony indictments. That’s more than the amount filed in Manhattan and Brooklyn, New York, combined in 2015—jurisdictions that have five times more people.
The two voter-approved referendums would help turn the criminal justice system around. State Question 780, which reclassified some felonies to misdemeanors, is expected to reduce annual prison admissions by 20 to 25 percent, saving the state millions of dollars. State Question 781 would reinvest those cost savings into a fund for rehabilitative programs, such as mental health and substance-abuse treatment—programs that are much needed in the state with the highest rate of prescription drug abuse in the country. Under the new policies, people convicted of drug possession could get counseling, job training, and treatment instead of sitting in prison for years.
The legislators and district attorneys that oppose these ballot measures are outside the largely bipartisan consensus on the need for criminal justice reform. Last month, a task force assembled by the governor recommended that the state drastically reduce its prison population. While the recommendations were supported by some law enforcement officials, Oklahoma’s district attorneys still rejected the need for change. “This is such a dishonest report,” Prater said. “It’s going to make Oklahoma a much more dangerous place.”
The enhancement zone bill is now headed to the state senate. If it passes, it’s possible Fallin will veto it. Although she’s said that she opposes the bill, the governor hasn’t yet indicated what she will do if it comes across her desk.
As more voters pay attention to the legislative process, the push to undo the referendums may face increasing blowback. At a raucous town hall meeting in Oklahoma City last month, Republican State Sen. Ralph Shortey, who opposed the referendums, faced 200 constituents who opposed making any changes to the measures they’d voted to pass. “Do your job,” one attendee yelled at Shortey. “Leave the people’s voice alone.” The room broke into applause.