What is the correct answer on the matter?
Is a fine for misd. poss. marij. authorized on not?
The easy answer is to call it a court fund assessment which is authorized instead of a fine.
Some lawyers in counties like Oklahoma County, Payne County, and Garfield County, have told me that in their court's the Judge does not imposes a "fine" on a misdemeanor possession of marijuana case but instead imposes court fund assessment and victime crime fund assessments.
The below unpublished OCCA case says no fines authorized for misdemeanor possession of marijuana and reversed the fine ordered. What is the current status of the law in the matter? Statute amended or people interpreting the statute different from this opinion?
Ronald Roger Phipps v. State of Oklahoma, Unpublished, OCCA, No. F-2000-796, (June 20, 2001).
http://www.state.ok.us/~oids/coca/PhippsRR.pdf
Vacated a $1000 dollar fine for possession of marijuana misdemeanor on the grounds that 63 O.S. Sec. 2-402 (B) (2), does not authorize a fine. Held that 21 O.S. Sec. 64 (A) generally cannot replace, or be combined with, specific punishment provisions in other titles of the Oklahoma Statutes. See 21 O.S. Sec. 11 (A); and Gaines v. State, 1977 OK CR 2459, 568 P.2d 1290 (error to combine fine provisions of the Controlled Substances Act with incarceration range in 21 O.S. Sec. 51); Brown v. State, 1976 OK CR 48, 546 P.2d 1023 (catch-all punishment provision in Title 47 controlled over catch-all provision in title 21).
The "catch-all" punishment provision (jail and fine) found in 63 O.S. Sec. 2-411 is inapplicable, as it only applies when an offense in the Uniform Controlled Substances Act provides for no punishment whatsoever. The provision here designates a specific punishment; it simply does not include a fine. The Court cannot ignore the plain meaning of a statute, or add language that is clearly not intended to be there. Arnold v. State, 48 Ok.Cr. 452, 132 P. 1123 (1913), overruled on other grounds, Lenzy v. State, 1993 OK CR 53, 864 P.2d 847.
Does anyone know the correct answer to this question [above] about whether "fines" are "authorized" pursuant to statute in a misdemeanor possession of marijuana case ---- or should it be called a "court fund assessment" instead of a fine?
Lastly, would the counties that have levied possibly "illegal" fines on misdemeanor possession of marijuana cases be required to refund the monies to the defendant's upon proper application?
Is this a possible class action law suit where a smart lawyer could make some money and get some great publicity and free advertising if successful or even if not successful???
Furthermore, if the municipalities cannot impose greater penalties that the state courts, would municipalities be required to issue refunds for fines imposed on misdemeanor possession of marijuana cases if the state statute is held or interpreted as not authorizing fines for that offense???
What about all of the lawyers who incorrectly along with Judges and prosecutors, told their clients the incorrect penalty ranges, would that provide the possibility of withdrawing the plea or setting aside the conviction and therefore make all the felony 2nd offense possession of marijuana cases possible reductions to misdemeanors?
There is a general statute for fines when not addressed in the statute concerning the crimes. But, as pointed out in the above case there is a title 63 --- general statute also, so the general statute arguably would not apply to a drug offense under title 63 since there is a more specific general statute under title 63 for title 63 offenses.
The general statute for title 21 is:
http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=68982
However, see:
http://tinyurl.com/2ht99c
Re: Mitchell v. State case cited below see the below link:
http://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=6530
Mitchell v. State, 1987 OK CR 13, 733 P.2d 412, on rehearing held stuck the fine. (For the rehearing portion of the case see the bottom of the case in the above link)
On rehearing:
¶2 In the petition, petitioner asserts that her sentence should be modified since [733 P.2d 416] 21 O.S. 1981 § 51 [21-51] does not provide for a fine. See Gaines v. State, 568 P.2d 1290 (Okl.Cr. 1977). We agree with this contention, and find that the judgment and sentence should be modified to a term of twenty (20) years imprisonment. As modified, the judgment and sentence is affirmed.
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Gaines v. State, 1977 OK CR 259, 568 P.2d 1290, held in striking the fine in a possession of cds case:
¶16 This instruction apparently combines the imprisonment which may be assessed under the second and subsequent offenses statute, 21 O.S. 1971 § 51 [21-51], with the fine which may be imposed under the Uniform Controlled Dangerous Substances Act, 63 O.S.Supp. 1975 § 2-401 [63-2-401]. Punishment may not be assessed by combining statutes, but must fall within the limitations of one statute only.
¶17 This Court held in Hayes v. State, Okl.Cr., 550 P.2d 1344 (1976), that when the predicate felony is one not covered under the Uniform Controlled Substances Act, punishment is to be enhanced pursuant to the provisions of the general habitual felon statute, 21 O.S. 1971 § 51 [21-51]. The fine assessed in this case does not fall within the statutory limits of Section 51, which provides for punishment by imprisonment in the penitentiary for a term not less than ten (10) years. For the above reasons judgment and sentence must be modified to a term of fifty (50) years' imprisonment
Unpublished case says fines not authorized on misdemeanor possession of marijuana cases
Alterantive Sentencing and Community Sentencing Proving Successful In Oklahoma
http://www.doc.state.ok.us/newsroom/releases/Community%20Sentencing%20Program%20Proving%20Successful.pdf
STATE OF OKLAHOMA
OKLAHOMA DEPARTMENT OF CORRECTIONS
3400 Martin Luther King Avenue ♦ Oklahoma City, Oklahoma 73111 ♦
Phone: (405) 425-2513 ♦ FAX: (405) 425-2502
JUSTIN JONES DIRECTOR BRAD HENRY GOVERNOR
NEWS RELEASE For immediate release Contact: Jerry Massie
August 22, 2007 (405) 425-2520
Community Sentencing Program Proving Successful
According to the Oklahoma Community Sentencing Act Annual Report for Fiscal Year 2006, 88% of participating offenders who successfully completed the program prior to July 1, 2003, remained in the community as of June 30, 2006. Only 12% had been received as an inmate of the Oklahoma Department of Corrections. Recidivism studies in corrections most often identify as a recidivist, an offender who is incarcerated within three years of his release from probation supervision or from prison. Of the 10,355 offenders who have received a community sentence since the program began in March, 2000, 21% failed and were sent to prison.
The average cost for fiscal year 2006, per offender was $1,711.00. There were 36 funded community sentencing councils encompassing 61 participating counties. The success rate, one of the best for diversion programs in Oklahoma, demonstrates that Community Sentencing is a proven investment in public safety.
Oklahoma Prisons at 98% capacity according to Director Justin Jones, see article below (emphasis added):
Seeking solutions to Oklahoma's prison problems
August -- 2007
This AP article (see http://newsok.com/article/3104500 ) from Oklahoma provides more details on Oklahoma's prison overcrowding problems (basics here) .
Oklahoma Department of Corrections Director Justin Jones recently said inmate overcrowding had hit 98 percent capacity and is probably at the most critical point in three decades because of a lack of options to deal with the problem. He said his only alternative soon will be to back up state inmates in county jails. Henry said it was premature to consider a special session of the Legislature on the issue, while praising the timing of an Associated Press series of articles on overcrowding and prison problems. "If we don't do something, we will hit that brick wall," he said.
Senate Co-President Pro Tem Glenn Coffee, R-Oklahoma City, has opposed prison expansion, while suggesting more utilization of private prisons. Henry said he agreed with Jones that the state should not become too dependent on private prisons and recommends more prison alternative programs.
DOMINION AND CONTROL DEFENSES TO DRUG CHARGES
DOMINION AND CONTROL DEFENSES TO DRUG CHARGES
by Glen R. Graham, Attorney at Law, Tulsa, Oklahoma
Web Page: http://www.glenrgraham.com/
Here are some ideas. On many criminal drug cases, there is a question of dominion and control. Who has the right to control the disposition of the drugs? Three people are riding in a car and drugs are found under the seat of one person, but not in plain view. Assuming no one confesses, then this is a classic "dominion and control" question. Sometimes, the police will arrest everyone and then later charges will only be filed against the owner of the vehicle. At other times, the police will say, "we will let the others go, if the person who's drugs it is will admit it was theirs." Sometimes, the police arrest the person making "furtive" movements and say he or she was trying to hide the drugs in the vehicle.
Each case is different and this is both a question of law and a question of fact. Dominion and Control is one of those areas of the law that is not always a clear cut answer.
One time a guy bought a used car from an individual and was pulled over by the police and they found drugs somewhere in the vehicle and charged him with possession of a controlled drug. This person had no serious criminal record and at a jury trial, he was found not guilty. Some Judges will say that dominion and control is a jury question and some Judges will says it is a mixed question of law and fact and may sustain a motion to quash the bind-over, if the parties stipulate to the facts, or sometimes stipulate to the preliminary hearing transcript, waive jury, try the case instanter based upon the preliminary hearing transcript, and sustain the motion to quash and dismiss based upon dominion and control. Other Judges will say it is a jury question and say you can try to work a deal with the prosecutor or try the case to a jury.
I have noticed that even really smart people can disagree upon the facts and the law and the interpretation of the law, for instance, many of the U.S. Supreme Court decisions are split decisions, 5-4 decision, or 6-3, etc. If even our U.S. Supreme Court Judges cannot or do not agree upon the application of the law to the facts or the interpretation of the law, then it should be no suprise that ordinary citizens, police officers, prosecutors, defense lawyers, and Judges, do not always agree.
Top Secrets in Hiring a Criminal Defense Lawyer
The Top Secrets in Hiring a Criminal Defense Lawyer
By Glen R. Graham, Attorney at Law, Tulsa, OK http://www.glenrgraham.com/
Phone: (918) 583-4621
1. At the initial consultation, your criminal defense lawyer is likely to tell you what you want to hear. "I believe in your innocence." This may very well be lip service to get you to hand over that check. Once the check is cashed, don't be surprised if your criminal defense lawyer starts singing a different tune. You should be aware that the amount of the fee, and the amount that you actually pay (and not promise to pay), ultimately, determines how much time the lawyer spends on the case. A oral fee contract is insufficient protection and how can you be sure of the fee or the price of a jury trial when the lawyer does not put it in writing. You should insist on a written agreement and if he will not give you one, you should shop around for another lawyer.
2. You generally get what you pay for and if you want the lawyer to really fight then you will have to pay an adequate fee to do it. If the lawyer quotes a suspiciously cheap fee, then don't be shocked after he cashes your check if he suddenly starts talking about a plea bargain deal to get the case over and done with. If you want a lawyer to really fight the case, you will have to pay adequate monies for it.
3. Few criminal defense lawyers have the confidence and experience to actually take a case to jury trial and win. Few lawyers actually anticipate going to jury trial so they don't tell you I am going to plead you out and not go to trial in your case. They know or fear that you would hire another lawyer if they told you this or they may really believe that you should plead out without discussing this with you. Asking a few questions, like when was your last jury trial and do you go to trial on many cases, will usually give you more specific knowledge about the lawyer. A lawyer that quotes too low a fee cannot afford to go to a jury trial and he may plan on withdrawing from your case later on once he determines that you will not accept a plea bargain or cannot afford to pay him for a jury trial. The lawyer may avoid quoting you the fee for a jury trial because he does not intend on going to a jury trial in your case.
4. You need a lawyer who is confident, attentive, and willing to work to win your case. If the lawyer you are talking to will not look you in the eye and fails to firmly shake your hand, you might want to shop around some more.
5. The worst thing is a criminal defense lawyer talking a client into a plea bargain deal when it is not in the clients' best interest. You do not want to accept any deals just because the lawyer has not been paid enough monies to fight your case. If only the lawyer had told you this to begin with, you could have borrowed the money or asked your family to help you. But, you didn’t ask enough questions and you assumed the lawyer would work hard for the amount you paid. Remember, you usually get what you pay for and if you don’t pay enough to fight the case then don’t be surprised by the result.
6. *TRUST* - The most important factor in hiring any lawyer is to hire a lawyer that you trust. Trust is not something you can exactly define or explain. Trust is more of a feeling that comes from deep down in the gut. It is something that comes from talking to the lawyer and looking him in the eye.
7. A former prosecutor may or may not be a good choice. A former prosecutor has spent time depersonalizing defendants and incarcerating them. However, it is possible for a former prosecutor to become an advocate for the defendant even if his heart is still that of a former prosecutor. It really just depends on the individual. But, just because the lawyer is a former prosecutor is not a reason to hire him. It is always going to be a question of "trust."
8. A referral from a bondsman to use a certain lawyer is not always a good thing. Sometimes the bondsman just wants the case over with quickly so they can write another bond and they may send you to a lawyer who will dispose of the case too quickly. Sometimes the bondsman may send you to a lawyer that they trust and know will instill confidence in you to show up for court and that has a good reputation for that area of the law.
9. Do weathly people accused of crimes hire the least expensive lawyers and/or former prosecutors to represent them. Most do not. Would "O.J. Simpson" have gotten the same result with a poor man's lawyer as he did with the "dream team" ?
You usually get about what you pay for and the more you pay, the harder the lawyer will work on your case. It sounds like common sense. This is not to say that a good lawyer will not work hard even when he has not been paid but the more you pay a person the more incentive there is to work hard. Everyone has bills to pay and to be able to pay your bills, you must get paid. Most people understand the rate of pay does affect the quality of the work.
Famous Clarence Darrow Quotations about the Law
Famous Clarence Darrow Quotations:
True patriotism hates injustice in its own land more than anywhere else.
You can protect your liberties in this world only by protecting the other man's freedom.
You can be free only if I am free.
Lost causes are the only ones worth fighting for.
The only real lawyers are trial lawyers, and trial lawyers try cases to juries.
Common experience shows how much rarer is moral courage than physical bravery. A thousand men will march to the mouth of the cannon where one man will dare espouse an unpopular cause.
Chase after truth like hell and you'll free yourself, even though you never touch its coat-tails.
Laws should be like clothes. They should be made to fit the people they serve.
Clarence Darrow's Quote About "Justice" and "Charity, Understanding, & Mercy"
Clarence Darrow said:
We have heard talk of “justice.” Is there anybody who knows what justice is? No one on earth can measure out justice. Can you look at any man and say what he deserves -- whether he deserves hanging by the neck until dead or life in prison or thirty days in prison or a medal? The human mind is blind to all who seek to look in at it and to most of us that look out from it. Justice is something that man knows little about. He may know something about charity and understanding and mercy, and he should cling to those as far as he can.
US Conference of Mayor's Resolution Calling for Public Health Approach to Substance Use & Abuse
US Conference of Mayor's Resolution Calling for Public Health Approach to Substance Use & Abuse
This lifted directly from DPA's website:Wednesday, June 27, 2007
The United States Conference of Mayors (USCM) made history last weekend by passing a resolution calling for a public health approach to the problems of substance use and abuse (PDF). The resolution was sponsored by Mayor Rocky Anderson of Salt Lake City.
The resolution proclaims the war on drugs a failure, and calls for “a New Bottom Line in U.S. drug policy, a public health approach that concentrates more fully on reducing the negative consequences associated with drug abuse, while ensuring that our policies do not exacerbate these problems or create new social problems of their own.”
In adopting the resolution, the mayors proclaimed addiction a broad public health concern and endorsed specific health-related measures. These include greater access to drug treatment such as methadone and other maintenance therapies, elimination of the federal ban on funding sterile syringe access programs, and establishment of prevention policies based on needs assessed at the local level.
The resolution also calls for using a greater percentage of drug war funding to evaluate current programs’ efficacy and accountability. Rather than measure the success of U.S. drug policy by examining drug use levels or number of people imprisoned, a New Bottom Line should be used to assess how much drug-related harm is reduced. National drug policy should focus on reducing social problems like drug addiction, overdose deaths, the spread of HIV/AIDS from injection drug use, racial disparities in the criminal justice system, and the enormous number of nonviolent offenders behind bars. Federal drug agencies should be judged—and funded—according to their ability to meet these goals.
Moreover, since the impact of drug policies is most acutely felt in local communities, evaluation and decision-making must occur at the local level--and federal funding must be provided to enable communities to pursue those policies that best meet the unique challenges of substance abuse.
“The mayors are clearly signaling the serious need for drug policy reform, an issue that ranks in importance among the most serious issues of the day,” said Daniel Abrahamson, Director of Legal Affairs for DPA.
Adopted resolutions become the official policy of the USCM, which meets every year to promote the best practices and most pressing priorities of U.S. cities. Last weekend’s event was the 75th Annual USCM Meeting in Los Angeles, California.
False or Mistaken Identification Account for 75% of DNA Over-Turned Convictions
According to the Innocence Project (http://www.innocence.org) and numerous large civil verdicts (some in the millions) for wrongful convictions, eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing. While eyewitness testimony can be persuasive evidence, 30 years of strong social science research has proven that eyewitness identification is often unreliable. Research shows that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound. Instead, witness memory is like any other evidence at a crime scene; it must be preserved carefully and retrieved methodically, or it can be contaminated.
The innocence projects suggests blind administration, whereby the administering officer is not aware who the suspect is or whether they are present or not and the witness is told the suspect may or may not be one of them.
In more than 25% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions or pled guilty. These cases show that confessions are not always prompted by internal knowledge or actual guilt, but are sometimes motivated by external influences. Mentally capable adults also give false confessions due to a variety of factors like the length of interrogation, exhaustion or a belief that they can be released after confessing and prove their innocence later. Regardless of the age, capacity or state of the confessor, what they often have in common is a decision – at some point during the interrogation process – that confessing will be more beneficial to them than continuing to maintain their innocence.
In more than 15% of cases of wrongful conviction overturned by DNA testing, an informant or jailhouse snitch testified against the defendant. Often, statements from people with incentives to testify – particularly incentives that are not disclosed to the jury – are the central evidence in convicting an innocent person.
For centuries, scientific and pseudo-scientific evidence has been used in courts of law. From blood typing and hair comparison to bite marks and ballistics, many questionable and limited forms of science and technical evidence have been – and still are – used to convict defendants in the United States. Evidence that would traditionally call for comparisons of hair, bite marks and blood types can now be tested for DNA. While older forms of forensic sciences can narrow possibilities, DNA can provide definitive proof of innocence or guilt. Because of its power to conclusively reveal the truth, DNA testing should be used whenever it can be probative. DNA exonerations have exposed misconduct at every level and stage of a criminal investigation.
This misconduct has included:
· deliberate suggestiveness in identification procedures
· the withholding of evidence from defense
· the deliberate mishandling, mistreatment or destruction of evidence
· the existence of false confessions
· the use of unreliable government informants or snitches
Oklahoma law requires the court to insure that the defendant receives a fair and accurate identification procedure and to exercise its discretion in such a way to accomplish those ends. Hunt v. State, 1988 OK CR 38, 751 P.2d 747.
In Davis v. State, 1970 OK CR 44, 467 P.2d 521, the court determined that if a timely objection is made to a potential in-court identification, the court should conduct a hearing outside the presence of a jury in order to determine if the extrajudicial identification procedure complies with the holding in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Those procedures required the court to determine (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of his prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and confrontation. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Chatman v. State, 1986 OK CR 36, 716 P.2d 258, 259; Bennett v. State, 1982 OK CR 125, 649 P.2d 804; and, Reeves v. State, 1982 OK CR 119, 649 P.2d 780, 783.
The United States Supreme Court and many circuit courts have long held that one-person show ups or one-person photo show ups produce a great likelihood of misidentification and any in-court identification must be shown to be the product solely of the independent recollection of the identification at the time of the offense, and not the result of the suggestive one-person show up or one-person photo show up or some other unnecessarily suggestive procedure.
The Innocence Project (http://www.innocence.org) suggests the following reforms:
Blind administration: Research and experience have shown that the risk of misidentification is sharply reduced if the police officer administering a photo or live lineup is not aware who the suspect is.
Lineup composition: "Fillers” (the non-suspects included in a lineup) should resemble the eyewitness' description of the perpetrator. The suspect should not stand out (for example, he should not be the only member of his race in the lineup, or the only one with facial hair). Eyewitnesses should not view multiple lineups with the same suspect
Instructions: The person viewing a lineup should be told that the perpetrator may not be in the lineup. They should also be told not to look to the administrator for guidance.
Confidence Statements: Immediately following the lineup procedure, the eyewitness should provide a statement, in his own words, that articulates the level of confidence he has in the identification made.
Recording: Identification procedures should be videotaped whenever possible – this protects innocent suspects from any misconduct by the lineup administrator, and it helps the police and prosecution by showing a jury that the procedure was legitimate.
Sequential Lineups: Research has shown that presenting lineup members one-by-one (sequential), rather than all at once (simultaneous), decreases the rate at which innocent people are identified. Research has also demonstrated that when viewing several subjects at once, witnesses tend to choose the person who looks the most like – but may not actually be – the perpetrator.
Some Common Negotiation Tactics
Some Common Negotiation Tactics
(Strive to recognize the negotiation tactics of the other party)
Declining to speak first
Not making the first offer
Alternatively, presenting demands
Time targets, i.e. Deadlines.
Time manipulation: Delay
Good guy/bad guy
Limited authority/Mandated Authority
Caucusing
Walking out
Concession patterns
High-ball/low-ball
Intimidation
Getting it in your hands
Fait accompli (what's done is done)
Take it or leave it
Rejecting an offer
Planted Information
Changing the location
Decoy
Extreme Offers
Pre-planning discussions
Cherry picking
Salami tactics
Counter-offers
Pre-Analyzing the underlying goals of the parties and then working toward meeting those underlying goals.
Being totally, 100% ready to try the case. Being completely ready with pictures, exhibits, affidavits, motions, and having sufficient funds (monies - attorney fees paid) to actually try the case and to appeal the case and hiring investigators and private detectives. Being ready to appeal and post an appeal bond.
Being completely able to explain logical reasons for the offer and the basis for what you want and what you are entitled to under the law and having all the documents and exhibits and affidavits from witnesses to support your request.
Sentencing Reform Recommendations of the Oklahoma Sentencing Commission
http://www.ocjrc.net/pubFiles/LegisRecom/2007RecommendationsFormatted.pdf
See the above link for more details.
Sentencing Reform Recommendations of the Oklahoma Sentencing Commission:
1. Limit Length of Revocation Sentences: The maximum length of imprisonment for a probationer who commits a technical violation (not a new crime) should be 2 years.
2. Revise Life Without Parole Sentence for Drug Trafficking: The mandatory minimum sentence of Life Without Parole for persons convicted of drug trafficking who have two prior drug offenses should be repealed.
Sex Offender Management
3. Tier System for Sex Offender Management: Statutes should be modified to establish a tier system with a finer distinction between sex offenders based on a calculated risk of re-offending. If resources for supervising sex offenders are limited, the public is better protected by dedicating resources (supervision intensity, residency restrictions, registration requirements) to the most risky offenders.
4. Revise Sex Offender Residency Restrictions: The Legislature should consider revising the distance restrictions on registered sex offenders to ensure they promote compliance and public safety rather than pushing sex offenders toward rural areas or non-compliance with reporting.
Prisoner Re-entry Proposals
5. Remove Governor from Some Parole Decisions: The Constitution should be amended so that the Governor’s signature is not required for parole release unless the District Attorney or victim has filed a protest of the parole with the Parole Board.
6. Consider Impact of Fines, Fees and Assessments on Defendants: The Legislature should consider the burden that increased fines, fees and assessments are creating on criminal defendants. The increased monetary costs are potentially counter-productive to the goal of returning low-risk offenders to good-standing with the community.
7. Study of Employment Barriers for Offenders: A study should be conducted to seek ways to eliminate the barriers to meaningful, adequate employment that are erected by felony convictions.
Reimbursements to County Jails
8. Adjust the rate of Department of Corrections’ reimbursements to county jails: The rate of the Department of Corrections’ reimbursement to county jails for any individual sentenced to prison who remains in county jail for more than 45 days shall be the actual costs to the county jail.
Oklahoma's High Rate of Incarceration
http://www.okbar.org/members/sections/criminal/news14.pdf
Oklahoma's High Rate of Incarceration
Study Shows 1 of Every 12 Oklahoma Adults Have Been In Prison Or On Felony Probation
This study was done by the Oklahoma Criminal Justice Research Center in Sept., 2006. A description of the methodology for this study is on page 13. See the entire study on the OCJRC website at http://www.ocjrc.net
(Statistically in 2006 - Oklahoma led the nation in the rate of incarceration for women)
Oklahoma has a long history of a high incarceration rate, as documented by the annual publications of the U.S. Department of Justice, Bureau of Justice Statistics. At midyear 2005 (Harrison and Beck, 2006) there were more than 2.1 million persons in the custody of state and federal prisons, and local jails.
In Oklahoma nearly 1% of the entire adult population (those age 18 or over) was in prison at the end of August 2006. Between 1995 and 2005 nationally the number of prisoners in state prisons grew at a rate of 2.5% per year. The Oklahoma prison population grew faster, at a rate of 2.9% per year during this same ten year period. In addition to nationwide increases in the prison and jail populations, the incarceration rate per 100,000 resident population also increased.
Between 1995 and 2005 the national incarceration rate for all state prisoners increased by 14%, from 379 per 100,000 to 433 per 100,000 at midyear 2005. Oklahoma outpaced the national statistics, increasing 22% from 536 prisoners per 100,000 in 1995 to 655 per 100,000 in 2005. For the last twenty years Oklahoma has been a high incarceration state, ranking among the top four every year since 1986 (Bureau of Justice Statistics, 2006; Oklahoma Department of Corrections, 2002, p 24).
Incarceration rates document the extent of imprisonment (those in prison) at fixed points in time, compared to the total state population. What effect has the high incarceration rate over a long period of time had on the total population of Oklahoma?
Discussion
As expected, the prevalence of imprisonment in Oklahoma is much greater than for the U.S., approximately 60% greater. The rate for females in Oklahoma is nearly two and one-half times as great as the U.S. Among the racial and ethnic groups, similar to the national trend, the prevalence for Blacks is much greater than for Whites or Hispanics, but in Oklahoma the disparity is somewhat less pronounced. Oklahoma has ranked first in the imprisonment of female offenders (Bureau of Justice Statistics, 2006).
The current incarceration rate per adult population is 45% higher in Oklahoma than for the U.S.
The rate of first admissions to prison in Oklahoma is 47% higher in Oklahoma than for the U.S.
References:
Bonczar, T. (2003). Prevalence of imprisonment in the U.S. population, 1974- 2001. Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics. Retrieved September 19, 2006 from the World Wide Web: http://www.ojp.usdoj.gov/bjs/pub/pdf/piusp01.pdf
Bonczar, T. & Beck, A. (1997). Lifetime likelihood of going to state or federal prison. Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics. Retrieved September 19, 2006 from the World Wide Web: http://www.ojp.usdoj.gov/bjs/pub/pdf/llgsfp.pdf
Ewald, A. (2005). A “crazy-quilt” of tiny pieces: State and local administration of American criminal disenfranchisement law. Washington, DC: The Sentencing Project. Retrieved from the World Wide Web: http://www.sentencingproject.org/pdfs/crazyquilt.pdf
Harrison, P. & Beck, A. (2006). Prison and jail inmates at midyear 2005. Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics. Retrieved September 20, 2006 from the World Wide Web: http://www.ojp.usdoj.gov/bjs/pub/pdf/pjim05.pdf
Love, M. (2005). Relief from the collateral consequences of a criminal conviction.
Washington, DC: The Sentencing Project. Retrieved September 19, 2006 from
the World Wide Web: http://www.sentencingproject.org/pdfs/rights-restoration/Oklahoma.pdf
Mauer, M. (2003). Invisible punishment: Block housing, education, voting. Washington, DC: Joint Center for Political and Economic Studies. Retrieved September 19, 2006 from the World Wide Web: http://www.sentencingproject.org/pdfs/mauerfocus.Pdf
Oklahoma Department of Corrections. (2002). Oklahoma Department of Corrections history: the 20th century. Oklahoma City, OK: Author. Retrieved September 20, 2006 from the World Wide Web: http://www.doc.state.ok.us/docs/DOC%History.pdf
Oklahoma State Department of Health. (2006). Web-based vital statistics: Health care information. Oklahoma City, OK: Author. Retrieved September 19, 2006 from the World Wide Web: http://www.health.state.ok.us/stats/vs/deathformicd10.html
The Sentencing Project. (2006). Felony disenfranchisement laws in the United States. Washington, DC: Author. Retrieved September 19, 2006 from the World Wide Web: http://www.sentencingproject.org/pdfs/1046.pdf
U.S. Census Bureau. (2005). SC-EST2004-Alldata6: State population estimates by demographic characteristics with 6 race groups (5 race alone groups and one group with two or more race groups): April 1, 2000 to July 1, 2004. Washington, DC: Author.
Retrieved July 24, 2006 from the World Wide Web: http://www.cenus.gov/popest/datasets.html
U.S. Department of Justice, Bureau of Justice Statistics. (2006). Prisoners in 1994 through Prisoners in 2004. Washington, DC: Author. Retrieved September 20, 2006 from the World Wide Web: http://www.ojp.usdoj.gov/bjs/prisons.htm#publications
The Inherent Unfairness in DUI Laws
A very interesting article in the National Association of Criminal Defense Lawyers magazine is the article by by attorneys Eric Sills and Peter Gerstenzang. It concludes that under the application and interpretation of current laws, that DUI offenders are interpreted as having fewer rights that other criminal offenders.
A True Double Standard: A Defense Perspective on the Inherent Unfairness in the Administration of the Impaired Driver Laws By Eric H. Sills; Peter Gerstenzang
Due to the intense pressure placed upon legislators, prosecutors and judges to wage war on impaired drivers — by interest groups such as Mothers Against Drunk Driving — it is rare that a year goes by without an increase in the penalties imposed for driving under the influence of alcohol or drugs (“DUI”). This pressure, combined with the lack of any organized lobbying on behalf of the drinking or drug-using driver, has led to a true double standard in which the criminal justice system has created two classes of criminals: (1) impaired drivers, and (2) all other criminals.
The inherent unfairness in the administration of the DUI laws pervades virtually every aspect of a DUI case, from the initial stop of the defendant’s vehicle through the administration of the chemical test. In addition, the courts routinely find that the use of so-called “civil penalties” to exact extra punishment on DUI offenders (e.g., driver’s license suspensions pending prosecution, chemical test refusal revocations, vehicle seizures or forfeitures) do not violate either the Double Jeopardy Clause or the Due Process Clause.
This article will demonstrate that the Constitution has been interpreted to provide less protection where the defendant is accused of DUI than it does where the defendant is accused of virtually any other crime, regardless of how serious or despicable.
http://www.nacdl.org/public.nsf/01c1e7698280d20385256d0b00789923/b0e7d25e09976c80852572e40065a3fb?OpenDocument
Govenor Henry's Smart on Crime Plan
Gov. Henry proposes Smart on Crime plan
January 31, 2007
Shortcut to: http://www.state.ok.us/governor/display_article.php?article_id=883&article_type=1
(Oklahoma City) Saying Oklahoma needs a smarter, more efficient approach to criminal justice, Gov. Brad Henry today unveiled an initiative designed to preserve prison space for violent criminals while redirecting more low-level, non-violent offenders to alternative sentencing that promotes work, restitution and substance abuse treatment.
“For too many years, the state has spent hundreds of millions of dollars warehousing low level, non-violent offenders and scrambling to find prison space for the truly violent criminals,” said Gov. Henry.
“We have to be tough on crime and lock up dangerous offenders, but we need to be smart on crime too. That means punishing low-level offenders in a more effective way that protects public safety without giving them free room and board in a taxpayer-financed prison cell. It also means requiring them to seek treatment for their addictions and work to pay restitution and the cost of their sentencing.”
As part of his Smart on Crime initiative, Gov. Henry today urged lawmakers and public safety officials to put more emphasis on drug courts, mental health courts, substance abuse treatment and inmate reintegration programs.
The state’s highly successful drug court program encourages prosecutors to pursue alternative sentencing for non-habitual drug offenders rather than prison time. Gov. Henry has dramatically increased the state’s drug court structure in recent years and is urging more counties to participate in the program.
Citing their success, Gov. Henry also wants increased emphasis on mental health courts and juvenile drug courts.
“Drug courts have shown that alternative sentencing can protect the public and result in a more efficient use of taxpayers’ money. It just makes good sense to apply the same model to other categories of low-level offenders, whether they are juveniles or the mentally ill,” he said.
While drug courts, juvenile drug courts and mental health courts address offenders who have not yet been sentenced, the governor said it is also important to focus resources on convicted offenders who will someday be released from prison and resume their lives as taxpaying citizens. Gov. Henry is proposing additional funds for substance abuse treatment programs and reintegration programs designed to prepare inmates for their productive return to society.
“The vast majority of inmates have a substance abuse problem that contributed in some way to their crime. The sad truth is these individuals will commit new crimes after their release if their substance abuse problems have not been addressed, costing taxpayers more and more money,” said the governor.
“If you don’t break the substance abuse cycle, you simply resign yourself to a revolving door corrections system that racks up tens of millions of dollars in new costs each year. If we invest resources in treatment and reintegration, particularly with faith-based programs, we can save taxpayers money in the long run.”
Tulsa Expands Mental Health Court to Accept Criminal Defendants
Oklahoma is considered a national leader in this area.
The specialized court will focus on people whose "criminal behavior is a by product of the mental illness," District Judge Rebecca Nightingale said.
A docket is projected to start in January or February on a one-day-a-week basis, with funding resources available to handle 50 people at this time, officials said.
Special District Judge Kirsten Pace is expected to handle the docket.
"There are far in excess of 50 people who qualify and have a need," said Nightingale, who will supervise the court's progress for the district judges. The intent is to divert nonviolent offenders with significant mental ailments into treatment programs in the community, rather than keep them locked up in jail.
Tulsa County officials are screening referrals for the new Mental Health Court, which is designed to deal with nonviolent but mentally ill criminal defendants.
The initial docket is set for June 4, with Special District Judge Kirsten Pace presiding.
"I am very optimistic about it," she said. "I hope the community can also be excited."
The goal is to address the needs of people who are "getting into trouble" and having encounters with the criminal justice system because of their mental illnesses, Pace said.
Oklahoma has the highest rate of serious mental illness among adults in the nation, according to a 2003 federal report.
"I do not think we are going to want for people for the Mental Health Court," Assistant Public Defender Marny Hill said.
District Attorney Tim Harris agreed that "there will be no shortage of candidates."
The docket is projected to start on a one-day-a-week basis, likely with a small number of participants. Enough state funds have been provided that officials project an eventual caseload of 50 people. The goal is to treat these offenders in the community, rather than lock them up. The approach should help people get the care, medication and treatment they need to function in society and make them "less of a burden on our court system," Hill said.
Participation is on a voluntary basis, and treatment programs will be individualized, Pace said.
Defendants must be diagnosed with a serious mental illness, but they also must be mentally competent for court purposes. Charges involving certain violent crimes will be grounds for automatic exclusion, officials say.
Participating defendants will be represented by attorneys to safeguard their rights, but "you can’t maintain your innocence," said District Judge Rebecca Nightingale, who has been active in the court’s development.
Mental Health Court is not set up "to try the cases," she said.
A defendant could have a case dismissed upon successful completion of a treatment program, but "there will be a consequence for failure to cooperate," Nightingale said.
A key component of Mental Health Court is to ensure that participants take their medication, and "jail will be a last-resort sanction" for noncompliance because of the difficulty of providing specific medication to a person in jail, Nightingale said.
As planned, defendants will appear before Pace regularly and will face requirements involving counseling, curfews, medication and supervision.
"Our success will depend a lot on the availability of services in the community," she said. "We are fortunate to have good community health resources."
Tulsa County prosecutors will have "gatekeeper" authority over an offender’s participation in the therapeutic court, First Assistant District Attorney Doug Drummond said.
"With this kind of court, it is going to be hard to have a lot of black-and-white rules," he said. "We need to help the people that really need help."
The local court system regularly handles civil proceedings related to involuntary mental health commitments, but previously there has been no therapeutic court approach to criminal defendants with mental illnesses.
Biblical Authority for the Right Against Self Incrimination as Part of Holistic Vision of Right to Fair Trial
Fascinating "holistic" approach to the right against self-incrimination which views the 6th Amendment as part of a "holistic" vision of a right to a fair trial instead of a bundle of disparate rights.
Long before Sir Walter Raleigh and ordinary English men and women were demanding production of an accuser, eventually linking this to the inchoate privilege against self-incrimination. Since they could not invoke the common law, the dissenters fell back on the Bible.
Shortcut to: http://moritzlaw.osu.edu/osjcl/Articles/Volume3_1/Commentary/Graham_3-1.pdf
See: Confrontation Stories: Raleigh on the Mayflower
By: Kenneth Graham* Professor UCLA School of Law and co-author of CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE & PROCEDURE EVIDENCE
"This romantic myth conflicts with some little-known facts—notably that the English common law has never recognized a right of confrontation."
The most popular book in colonial homes was the Geneva Bible, published as its name suggests by exiles from the Marian persecutions. The Geneva Bible carried marginal notes that, among other things, tried to show the contemporary political significance of Biblical passages. King James so feared the Geneva Bible that he ordered preparation of the “authorized version” of the Bible that later bore his name—but bore no marginal notes of political commentary.
In the best known Biblical passage on confrontation, Paul stood accused of sedition so a Roman tribune sent him to the Roman governor and “commanded his accusers to speak before thee [the governor] the things they had against him.” At the hearing, Paul challenged his accusers who had only hearsay knowledge to prove the charges, pointing out that witnesses who had personal knowledge “ought to have been present before thee, and accuse me, if they had ought against me.” At this point, a marginal note underlines the dangers of hearsay: “For his accusers spake but upon a false report, which these bellowers of Satan had blowen abroad, and durst not them selves appear.” Acts 25:16
Two years later when Festus became governor he wrote his superior that Paul’s enemies were still demanding his punishment, adding “[t]o whom I answered, that it is not the maner of the Romaines for favor to deliver anie man to the death before that he which is accused, have the accusers before him, and have place to defend himself, concerning the crime.” (citing Acts 25:16).
The second book of confrontation stories that the colonists carried to the New World was Fox’s Book of Martyrs—a compendium of religious persecution in England and elsewhere. Foxe decried the Spanish Inquisition and other religious persecutions. Though Festus may refer to the Roman form of confrontation, the translator blurs the distinction so as to favor a broader reading by dissenters. For example, John Lilburne used this passage expansively to condemn Star Chamber for treating him worse than the “Pagans and Heathen Romans.”
Confrontation also figures in the noncanonical tale of Jesus and the anonymous woman allegedly caught in an act of adultery. When his enemies brought her before Jesus to force him to choose between his teachings and the Mosaic law, Jesus famously replied, “Let him that is among you without sinne, cast the first stone at her.” The Geneva Bible explains that in casting the first
stones, witnesses “declared that they testified trueth.” So challenged, her accusers slunk off one by one, leaving Jesus alone with the woman. The Geneva Bible continues: “When Jesus had lift up him self againe, and sawe no man, but the woman, he said unto her, Woman, where are those thine accusers? Hathe no man condemned thee? She said, No man, Lord. And Jesus said, Nether do I condemne thee: go and sinne no more.” (citing John 8:9).
First, the right of confrontation is an American innovation, not an import from England. Second, the Founders wanted a right to confront not only the “witnesses” who appeared at trial but the “accusers” who lurked in the shadows. Finally, to “confront” an accuser meant more than cross-examination but a right to a trial of the accusation by procedures that were adversarial rather than inquisitorial. In short, the Sixth Amendment amounts to more than a bundle of disparate rights; it incorporates a holistic vision of a fair trial.
Scaled Questions During Jury Voir Dire Allow Jurors to Express Themselves
From the Art and Science of Defending People at the http://www.bennettandbennett.com/blog/
Make up some scaled jury voir dire questions about issues in your case.
For example, on a scale of one to ten, with ten being the most important and one being the least important, how important is ______________________ to you?
On a scale of one to ten, with ten being most important and one being least important, how important is it to you that the guilty be punished?
On the same scale, how important is it to you that the innocent go free?
The difference between the two numbers may indicate a juror tendency and help in making a decision on whether to strike a juror.
Scaled questions help to draw some information from those silent jurors who might not have said much during a general voir dire. They get information from people (even people who have not been warmed up with a proper voir dire) in a way that binary (yes/no) questions never will. Scaled questions allow jurors to be more honest about how they really feel about a subject instead of the "yes" or "no" answers. With scaled questions, there may be a socially deprecated answer at one end of the scale, and the juror's perception that this answeris "wrong" might skew his self-evaluation toward the other end of the scale, but there will still be several choices that might reveal something about the juror. For example, if he is asked to rate his feelings about a subject on a scale of 1-10 and his true feeling is a 10 (which he thinks is "wrong"), he can rate himself a 9 or 8. By contrast, if the juror is asked a "yes/no" question and his true feeling is "no" (which he thinks is "wrong"), he can only answer "yes."
Make up some scaled questions ---- On a scale of one to 10, with 10 being the strongest feelings and one being the least, rate your feelings about ------ _____________________?
For further Jury Voir Dire Information and ideas: http://www.bennettandbennett.com/blog/
Yours in the Law and Defense, Glen R. Graham, Attorney at Law, Tulsa,
http://www.glenrgraham.com
A Call for "Good Works" Sentencing Consideration - Remembering Veterans on Memorial Day
Remembering and Thanking Veterans on Memorial Day - A Call for "Good Works" Sentencing Consideration
Especially, during a time of war we should all be thanking the veterans.
Check out Professor Berman's post about Veteran's and Sentences:
http://sentencing.typepad.com/sentencing_law_and_policy/2006/11/thinking_about_.html
Personally, I agree with Professor Berman, that our veteran's deserve some kind of special consideration on sentencing. It seems like common sense that a person's good actions should be considered as well as their bad actions.
After all, we enjoy the freedoms we have in the country due to the many sacrifices of veterans both living and deceased. We should all be thanking the veterans, especially during a time of war.
Why should only the bad actions be considered?
Some related posts by Professor Berman:
My amicus effort to support our troops
Should prior military service reduce a sentence?
Lovely Rita, SCOTUS case...
Why isn't there a prior good works guideline?
Mitigation of Punishment Arguments by Conservatives
A decade ago, the Supreme Court stressed that “[i]t has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Koon v. United States, 518 U.S. 81 (1996).
Attorney General Alberto Gonzales during his confirmation hearings last year stressed that prison is best suited "for people who commit violent crimes and are career criminals." Gonzales also asserted that a focus on rehabilitation for "first-time, maybe sometimes second-time offenders ... is not only smart, ... it's the right thing to do;" in his words, "it is part of a compassionate society to give someone another chance." Similarly, President George W. Bush in his 2004 State of the Union Address spoke passionately about the importance of showing compassion (and providing job training and placement services) to convicted offenders because "America is the land of second chance."
You can download the Professor Berman's full amicus brief below http://sentencing.typepad.com/sentencing_law_and_policy/files/final_lett_amicus_as_filed.pdf
Check out Professor Berman's blog: http://www.sentencing.typepad.com/sentencing_law_and_policy/
