By John Thompson.

A first post described Oklahoma Christian University’s Complex Dialogues with Bryan Stevenson, and Stevenson’s passionate call for ending mass incarceration. His keynote address followed a series of panel discussionson the criminal justice system that appealed to both our emotions and intellects.

Christy Sheppard’s introductory presentation personified the forum’s balanced appeal to “the Head” and “the Heart.” She poignantly introduced a fact-driven discussion on the injustices of our system, as well as Stevenson’s call for grace and mercy. Ms. Sheppard is the cousin of Debbie Carter, whose murder in Oklahoma led to the wrongful convictions featured in Netflix’s “The Innocent Man,” based on the true story which inspired John Grisham’s famous novel. The two men convicted for the crime spent more than a decade in prison before being exonerated by DNA evidence. Sheppard is now a widely admired reform advocate.

Other forum participants included the ACLU/OK’s Ryan Kiesel, former Speaker of the Oklahoma House Kris Steele, a public defender, an assistance district attorney, a judge, a journalist, former inmates, and many others who are intimately familiar with Oklahoma’s horribly flawed criminal justice system.

Stevenson’s keynote was devoted to a renunciation of the “politics of revenge,” and a call for “friends of faith … to lift up our voices.” However, the noted attorney and author was free to make such a passionate case because he has three decades of experience in using facts to defend his clients. Stevenson also made an understated observation which helps explain what may be the greatest flaw of the system. He explained, “Our courts are too committed to finality, not fairness.”

Ryan Kiesel was more blunt in describing what I (a former legal historian) would indict as the original sin of the system. Prosecutors drive a system where 95 or more percent of cases are settled with a plea bargain. The system would break down if many defendants asserted their right to a jury trial. This means that district attorneys exercise their unchecked power to overcharge, to intimidate defendants into accepting a plea bargain.

As Kiesel explains, “the DA’s have a home field advantage and they make the most of it.” Our state’s legal history has thus empowered a group of democratically elected district attorneys to be “committed to perpetuating the misery of their constituents.”  As Kiesel and other local experts explained during the forum, the district attorneys’ greatest motivation for opposing sensible and balanced reforms “rest in their desire to maintain their outsized leverage against the accused.”

Kiesel praised the Oklahoma legislature and voters who showed compassion and common sense in starting us down the path toward a rational and humane criminal justice system. In 2016, the Justice Safety Valve Act allowed courts to deviate from certain mandatory minimum sentences, to eliminate mandatory life without parole for some repeat drug offenders, and make important initial reforms to the civil asset forfeiture system.

The passage of SQ 780 and SQ 781 by nearly 60 percent of Oklahoma voters then served as signal that criminal justice reform had become one of the driving political forces in Oklahoma. As Donald Trump carried all of Oklahoma’s 77 counties, the voters in one of the most conservative states in the nation made simple possession of all drugs a misdemeanor and increased the amount necessary before some property crimes could be considered a felony.

On the other hand, district attorneys responded by disrespecting the will of the people. After voters made their intent clear, prosecutors could have honored the spirit of the law. But even as the new law took effect, they continued to file felony charges against defendants who had been arrested just before it took effect so they were sentenced under the pre-SQ 780 law. Worse, they increased the number of felony drug cases by charging more defendants with Possession with the Intent to Distribute. Some D.A.s increased those charges by up to 400 percent. Consequently there was a 20 percent increase in persons being imprisoned for Intent to Distribute, after possession became a misdemeanor.

Former Speaker Steele further explained the complex institutional inertia which must be overcome. Even though 32 states have reduced both their incarceration rates and crime rates, Oklahoma D.A.s are still resisting the bipartisan effort to make SQ 780 sentences retroactive.

Even though the Assistant D.A. who participated in the forum denied that nonviolent persons were incarcerated for simple drug possession, Steele reported that Oklahoma still has 1100 inmates serving simple possession. Moreover, an African-American forum participant, Jimmy Johnson, was sentenced to 20 years for his first violation, a nonviolent drug offense.

Neither have D.A.s committed to the fight against excessive fees and fines. Due to tax cuts at a time when Oklahoma continued the mass punishment of nonviolent offenders (and their families), fines and fees typically comprise about 80 to 90 percent of the state court system’s budget. That is about $150 million annually and half goes to other agencies.

By handing felons the bill for rampant tax-cutting, after imposing draconian penalties for nonviolent offenses, we created an immense tragedy. It’s not just the fact that that a felony conviction drastically reduces a person’s chances of getting a job, it saddles them with thousands of dollars in fines and fees. This further undermines their ability to provide for their family and produces a downward cycle of generational poverty and, too often, more crime. Oklahoma’s system is so difficult for former inmates to navigate that by 2015 about 1/4^thof admissions to the system were for technical violations, not new crimes!

To further paraphrase Stevenson, will “we reckon with the trauma our society has caused to people of color and people in poverty,” and then “embrace the truth and heal?” Will we “recognize that we all need mercy, we all need justice, and – perhaps – we all need some measure of unmerited grace?”

Even if the challenge of creating a humane criminal justice system were not so complicated, the complexity of our moral and emotional dilemmas would still be daunting. Oklahomans and Americans must ask: Who are we?

What do you think? Are we still the people who created such a racist and brutal system, leaving prosecutors’ power unchecked? Are we still the society that was so panicked by illegal drug use in the 1980s and 90s that we succumbed to “an absence of compassion” and further corrupted our already flawed justice system? Are we still the people who viewers see when they turn on documentaries such as ABC’s The Last Defense, about the dubious trial which sent Julius Jones to Death Row and “The Innocent Man?”

Featured image by the_kid_cl, used with Creative Commons license.