There is massive confusion over which offenses are violent and why. What is this statute that defines violent offenses, and why is it relevant for SQ 805? Are there violent offenses not included on the list? Buckle up—it’s time for a history lesson.

Oklahoma’s incarceration problem isn’t new. We faced a similar problem in the mid-1980s. In 1984, the legislature, in an effort to fix the problem, passed the Oklahoma Prison Overcrowding Emergency Powers Act, which was signed into law by Governor George Nigh. The law said that when the Department of Corrections reached 95% capacity in the prison system, it could begin releasing inmates who had served most of their sentence until DOC was back below 95%. As part of the law, the Oklahoma legislature carved out certain offenses. If an inmate was serving time for one of the offenses listed, they were not eligible for early release under the statute.

In 2001, Governor Frank Keating signed a law repealing the Act. This came on the heels of three new private prison contracts in the state. Contracts were awarded to Davis Correctional Facility in 1996, Cimarron Correctional Facility in 1997, and Lawton Correctional and Rehabilitation Facility in 1998. Since passage of SQ 780 and 781, the state has closed Cimarron Correctional Facility.

Even though the Act was repealed, the list of violent offenses stuck around. And that’s where SQ 805 comes into play. This is important: the list was originally designed to keep certain offenders from early release. Similarly, SQ 805’s effect on so-called “sentence enhancements” excludes the crimes listed in the statute.

Does the list include every single offense that we might consider violent? No. It’s simply a list of offenses the legislature has deemed so violent that early release would not be an option. If SQ 805 is passed, sentence enhancements for prior felonies could not be used except for those offenders convicted of one of the crimes on the list. There’s no reason to think this wasn’t a good list when the legislature first drafted it, or that it’s not a good list now.

Had the drafters of SQ 805 gone through and included every single offense that might be considered violent, they would have inevitably included offenses that could encompass both violent and nonviolent behavior. Good public policy avoids drawing bright lines through gray areas. If an offense could include violent and nonviolent behavior, it makes no sense to treat all those instances as violent.

The naysayers would have you believe that people who commit crimes not on the list will be treated as a first-time offender every time. That is simply untrue. The sentencing range is designed to account for things like criminal history. Even Governor Keating—who debated my colleague, Trent England—admits that he would typically give a first-time offender DA probation and ratchet up punishment from there when he was a prosecutor. That’s what should happen. And if SQ 805 passes, that is how things will continue to work.