Trent England | October 8, 2020
State Question 805 and the Bill of Rights
Police and prosecutors have difficult jobs, made even more difficult by the Bill of Rights. Nearly half (4/10) of those first 10 constitutional amendments are about protecting the rights of those accused of—or even convicted of—committing a crime. If James Madison were around today, no doubt he’d be attacked for being “soft on crime” or even for “coddling career criminals,” just like proponents of State Question 805.
This state question would return Oklahoma law to the way criminal law always used to work: each crime has a defined range of punishment. Consider second-degree burglary, which includes breaking into garages, sheds, tents, and railroad cars with the intention to steal something. That Oklahoma statute says that a person convicted of that crime can be sent to prison for zero to seven years. But a law passed in 1999 says that a person with one prior felony conviction (any felony, including nonviolent crimes) can be sent to prison for the rest of that person’s life. State Question 805 would get rid of that inhumane sentence enhancement for people who have never been convicted of a crime that the Oklahoma Legislature previously classified as “violent.”
The American Founders were criminal justice reformers, driven by their Christian faith and their revulsion at the abuses of the British system.
Neither James Madison nor the campaign for 805 is coddling criminals. In fact, Madison knew that government power is always dangerous—even in the hands of well-meaning people and even when the job is to keep us safe. Good intentions are no protection of civil liberties. And even those accused of crimes are still entitled to certain rights. In fact, a civilized society that believes in individual rights will protect those convicted of crimes from being subject to “cruel and unusual punishments.”
The simple description of a prosecutor’s job is to get plea bargains. Nearly all prosecutions end in plea bargains, which save prosecutors time and money. Television might glamorize courtroom trials, but that represents a tiny percentage of all prosecutions (typically five percent or less). How does a prosecutor win plea bargains? By threatening a severe punishment but then offering a lesser punishment in exchange for the accused pleading guilty.
What if the accused is not guilty? We claim, in our system, that a person is innocent until proven guilty in a court of law. Is that true if 98 percent of defendants are convinced to admit guilt rather than go to trial and face the possibility of a much longer prison sentence? Of course, many of the accused probably are guilty, but even an innocent person might accept two years in prison to avoid the possibility of spending two decades there. If that is the case, are people really innocent until proven guilty?
If James Madison were around today, no doubt he’d be attacked for being “soft on crime” or even for “coddling career criminals.”
What about the right to a trial before a jury of your peers? Government cannot usually punish a person for exercising his or her constitutional rights. You do not need a permit to exercise freedom of speech, and Oklahoma now recognizes that you do not need permission to exercise the right to bear arms. Yet prosecutors can threaten you with a ten-times-longer prison sentence for asserting the right to take your case before a jury.
Many prosecutors oppose State Question 805, arguing that it will make their job more difficult. It is true that their job is made easier by threatening people with inhumane punishments in order to prevent them from exercising their right to a trial.
Imagine you have an adult child who years ago had a drug problem. That person was arrested once and convicted of a felony. But now the neighbor is mad—accusing your child of breaking into his shed in a failed attempt to steal a lawnmower. Your child is innocent, but the police believe the neighbor. Under current Oklahoma law, the prosecutor’s job is easy: your child can either go to trial and risk a sentence of up to life in prison, or admit guilt and the prosecutor will reduce the charge and ask for a sentence of just two years.
State Question 805 eliminates absurdly long sentences that kick in on second and third offenses. It would only apply to people who have never had a conviction for a crime the legislature previously listed as “violent”—including things like murder, attempted murder, assault with a deadly weapon, and robbery.
The American Founders were criminal justice reformers, driven by their Christian faith and their revulsion at the abuses of the British system. It is good to see Oklahomans following that same path.
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.