Criminal Justice

Trent England | August 3, 2020

Prosecutor misleads on SQ 805

Trent England

Oklahoma imposes unusually long prison sentences, which has led to one of the highest incarceration rates in the country. Last week, I talked with News 9 about State Question 805, which is designed to reduce sentences for crimes the legislature considers nonviolent. You can watch that story here. What caught my eye was the response from District Attorney Laura Austin Thomas.

State Question 805 would limit the use of a sentencing “enhancement” in Oklahoma law. Crimes in state law have an associated punishment range. For example, it might be zero to five years in prison, or two to ten years in prison. This range allows sentencing authorities to weigh the gravity of a crime, including whether a person has committed prior offenses, in determining the length of a sentence. But Oklahoma has another law that allows far longer sentences for those with prior convictions.

Many other states have laws like this, but they are often limited only to violent crimes. Prosecutors in other states may also use them selectively. But in Oklahoma, the law applies to nonviolent crimes and is used almost every time. This contributes to the overcrowding in Oklahoma prisons. And research shows that long prison sentences do not help reduce recidivism (the rate at which people released from prison commit new crimes).

Here is District Attorney Laura Austin Thomas’s quote:

Rewarding criminal behavior by saying “now, if you do this again it’s the same penalty,” is nothing more than positive reinforcement of negative behavior … it’s shameful.

This seems designed to mislead and, ultimately, makes no sense. Now I’ve written about Austin Thomas before, so I’m not surprised. But let’s consider both the moral and legal underpinnings of her statement.

First, remember there is a sentencing range for most crimes even without the enhancement that 805 would limit. Austin Thomas knows this, but she hopes you don’t. At best, her statement suggests that she seeks the most severe sentence every time for every crime and every offender, since that’s the only way she would be limited from ratcheting up a sentence for a person who commits the same crime again.

Second and more important, consider the lack of moral sense in Austin Thomas’s words. Punishing a person again is never a “reward.” If a person is addicted to opioids and starts feeding their habit by stealing, that person should be punished but ultimately needs help. The idea that we must ratchet up punishment indefinitely, even for nonviolent crimes, is immoral.

As the father of three children, I know some things about punishment. It should be sure and swift. It should also be rational and, of course, moral. The first time a child gets mad and throws a toy, you might go easy on him. The second time, especially if soon after the first, warrants sterner results. But no tantrum, even the 20th time, justifies beating a child or locking him in a closet and throwing away the key.

Even if State Question 805 passes, Oklahoma will still send many nonviolent offenders to prison for longer sentences than most other states. Some of this has to do with our state laws, some is caused by district attorneys who measure their success by how many people they can put into prison, the longer the better. Government power to lock people up should be used sparingly, only when justified by the practical purpose of public safety and the moral cause of justice.

Trent England David and Ann Brown Distinguished Fellow

Trent England

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.

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