Jonathan Small & Trent England | November 13, 2014
Corrections Reforms Will Make Us Smart On Crime
Jonathan Small & Trent England
Reducing crime and punishing criminals are basic functions of government. Yet Oklahoma’s corrections system is failing. Costs are soaring. The system is badly overcrowded.
Oklahoma spends more than $700 million annually on corrections efforts, which largely consist of jailing people convicted of crimes. According to the American Civil Liberties Union, our prison population has grown 446 percent since the 1980s, yet Oklahoma’s population has only grown 26 percent. OCPA believes that in order to unleash the human potential of Oklahomans, we mustn’t merely be tough on crime. We need to become smart on crime.
Incarceration of non-violent offenders and over-criminalization at both the state and federal levels are driving up the cost of other government services and robbing homes of mothers and fathers. Oklahoma should move to a system which avoids the incarceration of non-violent offenders, working instead to help those struggling with substance abuse, mental health challenges, and financial woes to pursue empowerment and improvement through restorative justice and other reforms.
A number of states are making great strides in these areas. It’s time for Oklahoma policymakers to do likewise.
Lawmakers should work to significantly increase the oversight ability of the governor’s office and the legislature as it relates to the Department of Corrections (DOC) by eliminating the DOC board and requiring the director to be appointed directly by the governor. This will lead to greater accountability and the implementation of reforms in a timelier manner.
Lawmakers seeking to be “right on crime” are making the right moves regarding corrections reform. Efforts should continue to reduce incarceration rates and strengthen families.
These and other efforts to significantly reduce the incarceration of non-violent offenders are what’s best for society and also save millions in taxpayer dollars. The Department of Corrections—like the Tourism Department, the Office of Juvenile Affairs, and many other state-operated services—can utilize the private sector to reduce the cost of providing state services. If the DOC would fully utilize the available private prison beds (“halfway” houses) as authorized by law, the state could save approximately $34 million annually (based on state costs per bed in 2009).
The topic of sentencing reform is a challenging but crucial one. Mandatory minimums and the growth of criminal statutes are the chief reasons for the ballooning growth of the corrections budget and the number of imprisoned offenders. It’s time to implement sentencing reforms which reduce or eliminate required prison time for many non-violent offenses. These reforms have been implemented in both “red” and “blue” states, including Kansas, Kentucky, Mississippi, South Carolina, Texas, and Ohio.
Four of the 10 amendments in the Bill of Rights are protections against government power to investigate, try, and punish criminals. This is where government wields the greatest power against individual citizens, and so there are risks of misuse and abuse.
Indeed, criminal law has changed and grown since the Bill of Rights was ratified in 1791. Over the last century, this growth has accelerated. Criminal law has been extended beyond traditional boundaries in ways collectively known as overcriminalization.
The traditional definition of a crime required two elements: a harmful act (actus reus) done with bad intent (mens rea). The first element prevents punishment of mere “thought crimes.” The second element is about culpability—whether a person actually deserves punishment. “Even a dog,” wrote Oliver Wendell Holmes, “distinguishes between being stumbled over and being kicked.” Harmful accidents (torts) are the proper province of civil lawsuits, not criminal prosecutions.
This distinction has been blurred in two dangerous ways. First, federal and state legislators have extended criminal punishments to acts done without criminal intent. This is particularly evident in federal environmental law, where people have been imprisoned for violations of the Clean Water Act that even prosecutors acknowledged were unintentional. Again, such a violation would traditionally be a tort, a cause for a civil suit for damages.
The other way some lawmakers and prosecutors have blurred this distinction is by increasing the potential damages for certain civil or administrative actions to punitive—that is, punishing—levels. Instead of extending the reach of criminal law, some civil penalties have become just as severe as criminal fines. Administrative courts can shut down businesses or take other actions that deprive people of their livelihoods. This form of overcriminalization is particularly insidious because it strips defendants of some of those protections in the Bill of Rights.
Lawmakers are responsible for drafting laws, especially those with criminal penalties, in ways that are clear to the public, prosecutors, and judges. Legislators can prevent some overcriminalization through legislation that makes clear that every criminal prosecution requires proof of intent. In both criminal prosecutions and civil and administrative actions, lawmakers and government officials should follow the traditional, common-sense understanding that only intentionally bad acts are worthy of punishment.
Provisional Licenses for Ex-Offenders
One of the biggest challenges to corrections reform is the over-regulation of occupational licensing, and specific prohibitions for ex-offenders who are banned from obtaining a license due to felony or other prior convictions. Non-violent ex-offenders should be allowed to obtain a provisional, or probationary, occupational license if they are otherwise qualified. Research indicates that a person who has been a law-abiding member of society for at least five years is at a low risk of re-offending. Also, according to the Federal Bureau of Prisons, ex-offenders who are employed are three to five times less likely to re-offend.
Opportunity for Ex-Offenders, Protection for Employers
Due to the litigious nature of our times, many employers are reluctant to hire ex-offenders. Employers rightly fear they will be sued in court for negligence or some other charge if a customer experiences a problem with an employer’s business that involved the ex-offender. To encourage the hiring of non-violent ex-offenders, the state should issue non-violent offenders—either while they are in prison or after a certain amount of time following their release—certificates of rehabilitation that can be presented to employers. If an employer hires a non-violent ex-offender who possesses a certificate of rehabilitation, state civil liability statutes should provide protections for those employers regarding the employment of the ex-offender.
Oklahoma policymakers have always been tough on crime. It’s time to be smart on crime.
Jonathan Small, C.P.A., serves as President and joined the staff in December of 2010. Previously, Jonathan served as a budget analyst for the Oklahoma Office of State Finance, as a fiscal policy analyst and research analyst for the Oklahoma House of Representatives, and as director of government affairs for the Oklahoma Insurance Department. Small’s work includes co-authoring “Economics 101” with Dr. Arthur Laffer and Dr. Wayne Winegarden, and his policy expertise has been referenced by The Oklahoman, the Tulsa World, National Review, the L.A. Times, The Hill, the Wall Street Journal and the Huffington Post. His weekly column “Free Market Friday” is published by the Journal Record and syndicated in 27 markets. A recipient of the American Legislative Exchange Council’s prestigious Private Sector Member of the Year award, Small is nationally recognized for his work to promote free markets, limited government and innovative public policy reforms. Jonathan holds a B.A. in Accounting from the University of Central Oklahoma and is a Certified Public Accountant.
David and Ann Brown Distinguished Fellow
Trent England is the David and Ann Brown Distinguished Fellow at the Oklahoma Council of Public Affairs, where he previously served as executive vice president. He is also the founder and executive director of Save Our States, which educates Americans about the importance of the Electoral College. England is a producer of the feature-length documentary “Safeguard: An Electoral College Story.” He has appeared three times on Fox & Friends and is a frequent guest on media programs from coast to coast. He is the author of Why We Must Defend the Electoral College and a contributor to The Heritage Guide to the Constitution and One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty. His writing has also appeared in the Wall Street Journal, USA Today, Washington Times, Hillsdale College's Imprimis speech digest, and other publications. Trent formerly hosted morning drive-time radio in Oklahoma City and has filled for various radio hosts including Ben Shapiro. A former legal policy analyst at The Heritage Foundation, he holds a law degree from The George Mason University School of Law and a bachelor of arts in government from Claremont McKenna College.