Narrowly Avoided Legislative Mistakes

With the close of session, we would be remiss if we neglected to highlight some of the harmful criminal legal bills that almost made it into law. Criminal legal advocates across the state banded together to ensure many of these harmful bills did not pass, but the public has a right to know what bills are being advocated for by the legislators they elect. 

This session we saw great successes with bills such as SB1691, HB3316, and HB4369 which you can read more about here, but there was also a continued push from the legislature, as we see each year, to rollback SQ780 and to over-penalize crimes associated with poverty and homelessness. 

SB1381: Criminalizing Homelessness

Let’s begin with criminalizing homelessness. Oklahoma, as of January 2020, had an estimated 3,932 experiencing homelessness on any given day, as reported by Continuums of Care to the U.S. Department of Housing and Urban Development (HUD). Additionally the Homeless Management Information System, which tracks utilization of homeless services in Oklahoma City throughout the year, found that there are approximately 11,900 homeless people active in its system in 2021.

SB1381, authored by Senator Rob Standridge and Representative Jim Olsen, would have required each municipality to conduct inspections of encampments to ensure they meet building codes and don’t impact the sewer, draining systems, or water reservoir. If the city fails to inspect the camps within the 30-day window, the city is held liable for any harm within or outside the boundaries of the encampments.  This potential law would have ensured additional hardships on an already vulnerable population in addition to burdensome penalties on our cities.

From 2006-2019, the National Homelessness Law Center found a 1,300% growth of homeless encampments in all 50 states, resulting in an increase in forced evictions or “sweeps” of the encampments, usually with little notice and no provision of alternative housing. This burden should not fall on cities and local governments alone, the state needs to cultivate and fund more comprehensive resources to address the root causes of poverty.

HB3053: Deferrals in Drug Court

The following bill was authored by Representative Kyle Hilbert and Senator Lonnie Paxton. If signed, HB3053 would have provided an option for a sentence to be deferred when an offender successfully completes a drug court program. The measure, as introduced, would allow participants in drug court programs, upon completion of the program, to have their sentences deferred if it is their first felony offense.

While this may not sound harmful, it actually is. Adult drug court programs provide eligible, non-violent, felony offenders the opportunity to participate in a highly structured, court supervised treatment program in lieu of incarceration. Since the inception of the first program in 1995, Oklahoma's adult drug court programs have expanded to 73 of the 77 counties in the state. 

Drug court is a rewarding, but taxing process for the individuals that go through the program. According to Oklahoma Criminal Justice Programs’ Manual, the treatment court shall hold court hearings no less frequently than every two weeks for those in the first phase of the program and no less than every four weeks from the second phase until participants are in the last phase of the program. On top of the rigorous scheduled appearance, participant also have fees that are charged to all program participants. 

As is, the law solely allowed for a case to be dismissed if an individual successfully completes drug court. Allowing for a deferral means the case, in a sense, continues. The person could still be expected to pay fines and fees or restitution, which is not present if a dismissal is given. 

Another Year of Attempted SQ780 Rollbacks

Unfortunately, we saw, yet again, that the legislature attempted various SQ780 rollbacks. This is despite the fact that SQ780 still to this day has overwhelming support and success. 

The first bill that attempted to roll back SQ780 was SB1540, authored by Senator Casey Murdock. If passed this bill would have found that any person committing  an additional act of larceny within a 10-year period using a theft device, defeating or removing an anti-theft device, using a fire exit, or committing an act of larceny at a retailer who banned the person shall subject to a term of imprisonment not less than 2 years. No compensation shall be paid to any buyer of stolen merchandise. Additionally, any person purchasing a stolen item for resale from persons convicted of larceny without making reasonable inquiry into the ownership of the item shall be responsible for the total amount of stolen merchandise and may be prosecuted for any offenses related to organized retail theft.  

Organized crime? Data shows otherwise. 

This session Representative Ross Ford and Senator Darrell Weaver authored HB4376 which would have been particularly harmful and specifically against the will of the people who passed SQ780. HB4376 would have created a new felony for “smash and grab” burglary. A person who causes $500 worth of damage to a store during a theft is subject to a minimum of 2 years (up to 10 years) in prison and a minimum fine of $10,000.

The stated purpose for this bill was to combat rampant organized retail theft in Oklahoma. But in Oklahoma, according to D&D Daily (a loss prevention watchdog) there were 9 cases that could be termed Organized Retail Crime in 2020. Further, their data includes instances of fraud and counterfeit, potentially further lowering that number with respect to organized retail theft. This bill would have applied to persons who act individually OR in concert with others, which means that this bill would have had a far broader reach than just organized retail theft. 

It is a direct attempt to chipaway at SQ 780, which increased thresholds for property amounts to be in line with other states. Furthermore, Oklahoma’s Statutes Already Criminalizes Organized Retail Theft And Smash and Grab Circumstances:

● Oklahoma’s RICO Law (Tit. 22 Sec. 1402(E)) specifically includes theft (when a felony) as defined in Title 21 Section 1731.

● Title 21 Section 1731 includes Larceny of Merchandise from a Retailer.

● Thus, any act that constitutes a felony (larceny of goods over $1000 or subsequent conviction under $1000) should already be included under Oklahoma’s RICO law.

● The RICO Statute is specifically designed to criminalize and prosecute “large scale crime rings.” (See Glenn v. State, 2001 OK CR 15).

● Alternatively, Oklahoma already criminalizes “Malicious Injury or Destruction of Property” which is a felony offense, when the damage done to property is over $1000. (21 OK Stat § 21-1760)

But this increased focus on certain crimes, with little to no data to back it up, continued to various bills that were aimed at increasing the penalty for theft of a catalytic converter and other car parts. The two of note are HB4373 and HB4375, which were both authored by Representative Ross Ford and Senator Darrell Weaver. Unfortunately, HB4373 was indeed passed and signed by the governor on 05/11/2022. 

HB4375 provides that a person who has previously been convicted of larceny of a catalytic converter from possessing any combination of two or more of the following tools: battery- powered reciprocating saw, reciprocating saw blades, pliers, wrenches or vehicle jack.

HB4373 provides that any person who climbs under or uses any jack stands or any other item to raise any automobile, truck, trailer, or vessel of another in order to commit any crime shall be guilty of burglary in the third degree. The measure also modifies allowable punishments for persons convicted of burglary in the third degree by adding a possible fine not exceeding $5,000.00 in addition to or in lieu of the prison sentence. The Senate amendments to HB 4373 modify the elements of third degree burglary to include the theft of tires, wheels, and catalytic converters. The measure provides a fine for burglary in the third degree to be not more than $5,000.

Oklahomans for Criminal Justice Reform continues to serve as a catalyst for systemic change in Oklahoma’s criminal legal system to promote just and appropriate accountability while reducing mass incarceration and its generational harm to families. We must continue to demand that Oklahoma’s criminal legal system reflects proactive, data-driven, and cost-effective solutions that empower, equip, and engage communities, families, and individuals in rehabilitation, restoration, and redemption.