While Oklahoma continues to lead the nation in incarceration rates, one of the most notable pieces of criminal justice reform to come out of the 2019 legislative session was a bill making the provisions in State Question 780 retroactive.
However, several other proposed reform measures failed. Bail reform, which some consider an important part of reducing the state’s leading incarceration rate, was among those which did not make it very far.
“There was a law presented this past session that did not ever proceed forward because they decided to study it further. It’s a huge, it’s just a big issue,” Rep. Tammy Townley, R-Ardmore, said regarding proposed bail reform measures in the 2019 legislative session.
Several Oklahoma lawmakers, including Townley, met last week to discuss the topic of bail reform.
While there is somewhat of a variance in bail policies throughout the state, according to District Attorney Craig Ladd, Townley said the main concern among proponents of bail reform is low-income and non-violent offenders not being able to afford bail; and therefore spending lengthy amounts of time in jail while still not having been found guilty of a crime.
In 2018, the Oklahoma Policy Institute reported that the state incarceration rate was over 50% higher than the national incarceration rate at 1,079 per 100,000 residents. In Carter County, the jail population typically stays around 200-210 inmates, according to Sheriff Chris Bryant.
Of that population, Bryant said around 75% to 80% of them are usually non-violent offenders. Non-violent crimes are defined as property, drug and public order offenses which do not involve a threat of harm or an actual attack upon a victim, typically including drug possession, burglary or larceny.
While most arrestees in the Carter County Jail are taken before a judge to have their bond set within 48 hours of their arrest, a bond must be posted on behalf of the defendant in order for them to await trial outside of jail, Ladd said. The judge can set an own recognizance bond, or an O.R. bond, as an exception in some cases.
O.R. bonds allow the defendant to promise to appear in court in writing rather than paying a bail amount. However, those who receive a bond amount and cannot afford it can sometimes spend up to six months in jail awaiting trial.
"Sometimes arrestees in Carter County gather the money to bond out, but “most of them just sit it out,” Bryant said.
Proponents of bail reform argue that this waiting period can take a substantial toll on the lives of low-income arrestees, Townley said.
“They haven’t been convicted of anything, and yet we’ve got them sitting in jail. So while they’re sitting in jail and they’ve never been convicted of anything yet, they may be missing work, they may be missing out on child care,” Townley said. “There is just a laundry list of things that could go wrong in this person’s life because they’re sitting in jail.”
Some legislators suggest bail reform aimed at letting more people out on O.R. bonds as a solution, Townley said.
While using O.R. bonds more frequently would reduce the amount of low-income, non-violent offenders in county jails, it would not, however, have much of an impact on the state incarceration rate, Ladd said.
“It would obviously lower the number of defendants detained pre-trial in our county jails, but our infamously high state incarceration rate pertains to defendants who have been convicted of felony offenses and have been sentenced to prison time,” Ladd said.
Opponents of bail reform argue that allowing more arrestees to await trial outside of jail would potentially put others at risk, Townley said.
“We are also letting out potential criminals on the streets,” Townley said. “They’ve not been convicted, but we’re still letting these kinds of people out on the streets with no one, if they’re out on an O.R., then there’s no one watching them basically. Where at least bail bondsmen try to keep up with them and know where they’re at.”
The bond amount for a particular individual is typically set based off of an assessment on the defendant’s flight risk or risk to public safety. The judge setting bond asks a series of questions of the defendant, ranging from “Where do you work?” to “Do you own any property in Carter County” to “Have you ever been in trouble before?” Ladd said.
The judge will also check to see if the defendant has a history of failing to appear, if the defendant is charged with an offense that could be enhanced due to prior convictions, and their criminal history from other states usually provided by prosecutors, among other things.
“To some degree the arrestee’s demeanor and attitude towards the judge also likely has an impact on the judge’s perception as to whether the arrestee is taking the matter seriously,” Ladd said.
All of these factors cause the bond amount for non-violent offenders to vary greatly, case by case. Ladd referred to an individual who was arrested and charged with burglarizing four automobiles in late September, 2019 as an example.
“He is looking at four lower level, non-violent felonies,” Ladd said. “But the judge and prosecutors are aware that his name is continually popping up in other cases and anyone who sees him can readily see that he appears to be strung out on drugs.”
The individual managed to post bail and was arrested for breaking into a relative’s home three weeks later before a preliminary hearing conference could be conducted in his car burglary case, Ladd said.
“In this second case the judge sets a cash bond, which is typically harder to post. Just this afternoon I received a new report where the same young man had actually committed a burglary of someone else’s home recently as well,” Ladd said, adding that this case is fairly indicative of many defendants whom the court deals with.
While there might not be a clear answer to reforming the bail system in Oklahoma yet, studies like the one the House conducted last week open up the door to more questions, Townley said. The discussion does not always get translated into written law, but it allows legislators to say ‘This is what we would like to see happen’.
“These are the kinds of things that need to happen before you start making laws. So I totally appreciate this whole process,” Townley said. “Hopefully somebody has really dug into these questions and they produce some really good information.”