Below are a number of ideas that I have that I believe would improve the state of Oklahoma an improve our state. Some people may be surprised that these ideas come from a criminal defense lawyer, however I believe all of these ideas would benefit the both defendants and the general public alike.
Changes to DUI Punishment
Every year Oklahoma has over 200 deaths that result from drinking and driving. While this number represents an improvement over the amount of deaths our state had 25 years ago, it is still a staggering number.
Our state will never be able to eliminate all deaths from drinking and driving, but I believe there is a simple change to our statutes that will help reduce the deaths from drinking and driving even further.
In the decade that I have been practicing criminal law I have represented individuals responsible for the death of 10 people while drinking and driving. Our statutes punish those that kill others while drinking and driving harshly and I believe that harsh treatment for DUI Manslaughter offenders represents good public policy. However, since people that kill others while drinking and driving do not intend to kill people, I believe that the punishment for all DUI offenders should be increased to deter the behavior that leads to these deaths.
Presently, under Oklahoma law the sentencing range for first time DUI is 10 days to 1 year in the county jail. (See Title 47 O.S. Section 11-902) However, it is my experience that very few first time DUI offenders ever spend anytime in the county jail. I believe that it is commonly known among individuals that frequent bars and drink and drive regularly, that even if they are arrested they will not spend anytime in jail.
My suggestion is that the range of punishment be modified to require all first time DUI and DWI offenders to spend a weekend in jail. It is my suggestion that if the law made it clear that if an individual is convicted of DUI or DWI, that even a first time offender, will be required to spend a weekend in county jail that it would have a great deterrent effect on the number of DUIs in our state. The statute would have to be clear that the weekend in the county jail could not be suspended under any circumstances.
I believe that if this change was made in the statute, that it would not take long for the word to spread and our state would see a decrease in the amount of DUIs and DWIs. I would hope that with this change in the statute that our state could finally get below 200 drinking and driving deaths a year. (In 2008 there were 266 deaths and in 2009 there were 209 deaths.)
By making jail time a certainty for even first time DUI and DWI offenders I believe that we would reduce the behavior and therefore reduce drinking and driving deaths. The statute could require the cost of the weekend incarceration to be charged to the offenders as part of the cost of the case, so that the local county jails are not burdened with new expenses.
I believe this small change in the statute would reduce drinking and driving, reduce drinking and driving deaths, save the tax payers money and deter many individuals from long prison sentences by changing their behavior before it results in tragedy.
Changes to the Prescription System
Every year dozens of individuals are arrested for obtaining prescription by fraud. Currently, I am representing an individual in federal court that is charged with a conspiracy to distribute oxycodone. That case involved drugs received through forged prescriptions. In that case the United States Attorney’s Office believes that 35,000 oxycodone pills were obtained in a matter of months through forgery.
In the case I am involved in the ringleader simply printed up the prescriptions using a computer and a printer.
Common sense dictates that for every individual that is caught obtaining prescription by fraud that there are a number of others that are not discovered. Prescription forgery is a large source of illegal drugs in our communities and it also results in the arrests and convictions of numerous individuals that we then have to bear the expense of prosecuting and incarcerating.
It would be easy to change the system to eliminate this problem. If the state adopted a requirement that all narcotic prescriptions require contact directly from the doctor’s office in order for the pharmacy to fill the prescription, than it would eliminate the ability for individuals to forge these types of prescriptions. The process could be mad even more secure by requiring a passcode from the doctor’s office to be given to the pharmacy before the narcotic prescription could be filled.
Changes to the Knowingly Concealing Stolen Property Statute
Under Oklahoma law it is a felony for an individual to receive stolen property. (See Title 21 O.S. Section 1713) Clearly this behavior should be against the law. However, the statute does not have a dollar value attached to the statute. In other property crimes there is a threshold value amount before the behavior becomes a felony.
For example under the embezzlement statute that will go into effect on November 1, 2011 (See Title 21 O.S. Section 1451) if the value of the property embezzled is less that $500 than the offense is a misdemeanor.
For another example the crime of larceny of merchandise from a retailer (Title 21 O.S. Section 1731) for a first time offender who steals less than $500 worth of merchandise the crime is a misdemeanor.
The absence of a dollar value being attached to the Knowingly Stealing Stolen Property statute can led to absurd results. For example lets say one individual steals an iPod from a local store and sells it to another individual. Under the current law the individual that steals the IPod is guilty of a misdemeanor and the individual that buys the stolen IPod is guilty of a felony. It makes more sense to attach a monetary value to the stolen property that is received before it becomes a felony.
Changes to the Judicial Modification Statute
Title 22 O.S. Section 982a allows a sentencing judge to modify the sentence imposed any time within (12) months after the sentence was imposed “if the court is satisfied the best interests of the public will not be jeopardized.” In 2010 the legislature modified this statute to include the following language “Further, without the consent of the district attorney, this section shall not apply to sentences imposed pursuant to a plea agreement.”
In principal I agree that a defendant should not reach be allowed to enter into a plea agreement with the state and then be able to return to court within a year and ask the judge to impose another sentence without the agreement of the state. However, when a judge gives a sentence after a Pre-Sentence Investigation Report (PSI), it makes sense to give the judge the authority to set a judicial review at the time of sentencing.
There are different types of plea agreements that defendants enter into with the prosecution. Sometimes a defendant and the prosecution will agree that a defendant will serve a number of years in the Department of Corrections. Other times the agreement will be to a term of years and whether the sentence imposed is incarceration, a suspended sentence or a deferred sentence is up to the judge after the judge has had an opportunity to review the pre-sentence investigation report.
A few month back, because of the changed statute, I witnessed a Tulsa County Judge sentence a defendant to less time in prison because the state would not agree to a judicial review. In the case I witnessed the individual was involved with a robbery and pled to a 8 year term to be determined after a PSI. (A plea agreement of this type would be referred to as an “8 PSI”.) The judge wanted to sentence the defendant to a term of 8 years in prison and bring the defendant back for a judicial review after a year and if the defendant was doing well then consider a modification. The prosecutor would not agree to a judicial review so the judge gave the defendant 2 years in prison and 6 years probation. So in this case, because the change in the law the defendant potentially spent less time in prison.
Often times a judge will sentence a defendant to the entire period of time in prison called for in the agreement and set a judicial review to see how the defendant is doing in prison. This provides a powerful motivation for a defendant to change their behavior and to take advantage of as many programs as they can while in DOC. This type of sentence helps the process of rehabilitation and helps reduce recidivism rates.
It makes good sense to tweak the statute to allow a judge that imposes a sentence, that is a result of a “PSI” plea agreement, to set a judicial review at the time of sentencing. Most of the judges in our state are very experienced and through their experience have gained a good understanding of how to motivate an individual to change.
Establish Requirements for Death Penalty Counsel
Federal statutes require that when a defendant is charged with a capital offense that the Court shall assign “2 such counsel, of whom at least 1 shall be learned in the law applicable to capital cases.” (see 18 USC Section 3005) Death penalty cases are complex and more difficulty than any other type of case that a defense counsel will ever handle. These cases require an experienced attorney to handle them effectively.
Death penalty trials are very expensive and traumatic for all parties involved. Death penalty verdicts are reversed at a higher percentage than any other type of sentence, both in the Oklahoma Court of Criminal Appeals and in Federal Court. The state has a legitimate interest in ensuring that these cases are done right the first time.
On multiple occasions the issue of unqualified counsel handling death penalty cases has arisen in Tulsa County. The last time the issue arose, I had communication with members of the Tulsa County District Attorney’s office about the issue. The district attorneys I spoke with did not want to see the case continue to trial with an unqualified attorney representing a defendant that may receive a sentence of death. Fortunately, in the case I am referencing the unqualified attorney decided that she was unqualified and withdrew.
However, I know of cases where unqualified attorneys continued to represent defendants facing the death penalty for various reasons.
I suggest that the state establish requirements for attorneys in death penalty cases. My suggestion is that the state law go past the requirements of the federal statute and require minimum qualifications for attorneys that are appointed or retained. Whether in favor or opposed to the death penalty we all have an interest in ensuring the trials are done right the first time.
Change in the Punishment for Simple Possession of Marijuana
Under Oklahoma law the first time simple possession of marijuana is a misdemeanor. However, also under Oklahoma law the second and subsequent simple possession of marijuana is enhanced to a felony and is punishable by from 2 to 10 years in the state penitentiary. (See Title 63 O.S. 2-402 (B)(2).)
However, there is some confusion in the law regarding whether or not the second and subsequent possession of marijuana can be enhanced under the habitual offender act. (See Title 21 O.S. Section 51.1) Those that believe that the second a subsequent possession of marijuana can be enhanced believe that you can enhance the offense from a misdemeanor to a felony by proving the prior conviction for possession of marijuana and then enhance the sentencing range from 2 to 10 years to 4 to 20 years by proving a separate prior felony conviction. Under this interpretation our state could potentially pay to incarcerate some defendants for up to 20 year sentence for possession of a single joint of marijuana.
Admittedly a defendant sentenced to 20 years for simple possession of marijuana would only serve 7 or 8 years, but the sentence alone would cost the tax payers well over $100,000.
It is my belief that a conviction for the second and subsequent possession of marijuana always carries from 2 to 10 years. Some judges in Tulsa County agree with me and other judges do not. I’m aware of no case in which the Court of Criminal Appeals has addressed this issue.
Regardless of which position a lawyer or judge takes regarding the appropriate punishment range under this statute both sides would agree that ambiguity in the law is not a good thing. Removing this ambiguity in the law would improve the system.
However, modification of the punishment range for felony simple possession of marijuana would make sense. Under Oklahoma law DUI is a misdemeanor for the first offense and a felony for the second. However, the second offense DUI only carries a term of imprisonment of up to 5 years in prison. A second felony offense (third DUI offense counting the misdemeanor conviction) for DUI carries a sentence from 1 to 10 years in prison.
The punishment for aggravated assault and battery, which has a statutory requirement of great bodily injury, carries a punishment range of 0 to 5 years in prison. (See Title 21 OS 646 and 647) And and the recently passed statute that goes into effect on November 1, 2011 anyone convicted of domestic assault and battery with a dangerous weapon can be punished up to 10 years in prison. (See Title 21 OS Section 644)
Under our statutes the simple possession of marijuana (second offense) can send you to prison longer than your first felony DUI, as long as your second felony DUI, twice as long than if you committed aggravated assault and battery with great bodily injury upon someone, and as long as you could receive for domestic assault and battery by dangerous weapon.
The punishment range of simple possession of marijuana simply does not fit the crime. In these tough economic times it does not make sense to incarcerate an individuals for years for the simple possession of a marijuana joint. I have witnessed multiple defendants receive multiyear sentences for simple possession of marijuana.
I would suggest that the punishment range of up to a year in county jail and a felony conviction would be a more appropriate range of punishment for second and subsequent convictions of simple possession of marijuana. This range of punishment would save the state hundreds of thousands, if not millions of dollars a year, by removing the cost of state imprisonment for those individuals caught with a small quantity of marijuana for second and subsequent times.
Second time offenders would still become convicted felons, they would just be incarcerated in the county jail instead of the state prison system.