No one has done more than Governor Kevin Stitt to dig Oklahoma out of the hole it dug as one of the country’s largest incarcerators. One of the ways he has used his power as governor to correct overly harsh sentences has been through the use of his commutation power. A commutation is “a change of a sentence to one that is less severe.” According to the Oklahoma Pardon and Parole Board website, a commutation “is intended to correct an unjust or excessive sentence.”

Proposed rules recently introduced by the current Board seek to undermine this process by making it much more difficult for an individual to seek a commutation. Current rules allow for most inmates to request a commutation so long as they have not been denied one in the last three years. The rules, as proposed, would limit commutation applications to those who meet one of four very specific criteria:

• The sentencing range for one or more of a prisoner’s current offenses has statutorily changed. For instance, if a legislative proposal to create a felony classification system is implemented, some prisoners may become eligible for commutation.

• The prisoner does not have a projected release date and has served at least 30 years.

• The prisoner has a favorable recommendation from a trial official, such as a district attorney or judge.

• The prisoner has a favorable recommendation from the governor.

There is no doubt these rules will drastically reduce the number of applicants for commutation—making it more difficult for governors and the Board to make individual assessments of worthy candidates for commutation. The rules also go beyond the authority of the Board and delve into policymaking reserved for the Legislature. To that effect, I submitted the following comments to the Board (see below), and I hope the Board will reconsider this unlawful power grab. If not, I’m sure the Joint Committee on Administrative Rules will remind the Board of who gets to set policy.

January 5, 2024
Oklahoma Pardon and Parole Board
2501 N. Lincoln Blvd., Suite 201
Oklahoma City, OK 73105

Re: Proposed Rule Changes to Chapter 15

In Morrison v. Olson, 487 U.S. 654 (1988), Justice Antonin Scalia delivered one of his most enduring lines:

Frequently an issue [dealing with the separation of powers] will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

Like the proverbial wolf that comes as a wolf, the rules proposed by the Pardon and Parole Board are a naked power grab from the Legislature—the governmental department tasked with setting policy.

The Oklahoma Constitution contains an explicit separation of powers clause, forbidding any department from “exercise[ing] the powers properly belonging to either of the others.” Ok Const. Art. 4, § 1. Accordingly, “[a]n administrative agency may not under the guise of its rule making power exceed the scope of its authority and act contrary to the statute which is the source of its authority.” Adams v. Pro. Pracs. Comm’n, 1974 OK 88, ¶ 11, 524 P.2d 932, 934. “It is, however, necessary and proper for administrative agencies to adopt rules of procedure as to matters coming under its jurisdiction.” Id. The Board’s proposed rules to Chapter 15 go from implementing rules “to facilitate administration of legislative policy” 75 O.S. § 250.2 and into the realm of policymaking. Thus, the proposed rules violate the agency’s duty to enact rules in accordance with the policy of the Legislature.

Oklahoma law has strict limitations on who is eligible for consideration for parole. 57 O.S. § 332.7. In other words, the Legislature is familiar with how to set policy for who is considered eligible for action by the Board. The fact that the Legislature has chosen to set forth eligibility criteria for parole but not for commutations means commutations should be given individual review based on the merits of the application without undue limitations outside the statutory scheme. The proposed rules which would limit commutation consideration to four groups do not comport with the statutory scheme in Title 57.

The first eligibility criterion in the proposed rules clearly violates the statutory scheme. The Legislature has clearly demonstrated it knows how to create this kind of policy as it did in 2019 with HB 1269—now reflected in 57 O.S. § 332.2(F). HB 1269 created an accelerated single-stage docket for crimes that had been reclassified from a felony to a misdemeanor. If the Legislature wants to ensure inmates sentenced under a prior sentencing scheme are eligible for commutation based on the change in policy, it can do so as it did with HB 1269. The Board is without authority to limit eligibility to this and a few other criteria.

The second criterion is perhaps the most draconian and also unlawful. As mentioned above, the Legislature has outlined similar provisions for parole 57 O.S. § 332.7 (imposing time-served requirements for parole). However, the Legislature has not set forth a similar policy for commutations. For the aforementioned reasons, this rule wades into unlawful policymaking, violates the separation of powers, and is an overstep of the Board’s authority.

The final two criteria for eligibility are also unlawful in that they contradict established policy set by the Legislature. First, trial officers already have the ability to provide “a written recommendation or protest prior to consideration of the application.” 57 O.S. § 332.2(C). The Legislature clearly intended judicial officer input to be a check on the application—not a prerequisite for the application. Likewise, Section 332.2 already provides a gubernatorial recommendation as one option for consideration by the Board. Making it one of four requirements for an applicant to be eligible clearly violates the established policy set forth by the Legislature in the statutory scheme. The Board is not free to go outside the policy set forth by the Legislature in the exercise of its rulemaking authority.

Not only do these proposed rules violate the duty of the Board to carry out the legislative policy set by the Oklahoma Legislature—they will also harm the State of Oklahoma by drastically reducing the number of people eligible for commutation. Oklahoma is consistently ranked as one of the worst states with its high incarceration rates—this despite not having correspondingly high rates of violent crime. The Board has a crucial role in correcting “an unjust or excessive sentence.” Placing new and unnecessary roadblocks does not further this important role of the Board. Accordingly, the Board should not adopt the new rules with respect to commutations.

Sincerely,

Ryan Haynie
Criminal Justice Reform Fellow and General Counsel
Oklahoma Council of Public Affairs