National policy institute criticizes "overcriminalization" in Oklahoma
A national policy research institute has released a study criticizing Oklahoma for "overcriminalizing" behavior and punishing people otherwise acting in good faith or doing their jobs.
The Manhattan Institute, a New York City think tank, released "Overcriminalizing the Sooner State: A Primer and Possible Reforms for Oklahoma" on Nov. 17.
Oklahoma is the fifth state the institute has studied.
The report points out the Oklahoma criminal code contains 1,232 sections sprawling over 629 pages. On average, the state has created 26 new crimes every year over the last six years, of which 91 percent fall outside the criminal code. The new crimes are placed under 21 other statutory titles, according to the report.
Kris Steele, a former Republican House speaker, said the report's recommendations are steps in the right direction.
Steele also led the Oklahomans for Criminal Justice Reform coalition, whose two ballot initiatives passed in November. Those reforms will make simple drug possession a misdemeanor, provide treatment for drug offenders and also raise the threshold on property crimes that trigger a felony charge.
"It's concerning that Oklahoma is so willing and apt to send people to prison or incarceration for so many offenses, especially when the research indicates that incarceration for many offense does not equate to a reduction in crime or an increase in public safety," he said.
"Oftentimes, when we incarcerate low-level offenders, we make a bad situation worse by warehousing that individual in a bad situation and placing a felony conviction — a scarlet letter — upon that individual," Steele said.
"The report does indicate that the trend in Oklahoma is slowing, but we create 26 new crimes each year. There's no indication that creating additional crimes and imposing harsher penalties for these low-level offenses is in the best interest of public safety," he said.
How we compare
Compared to its bordering states, Oklahoma's penal code has hundreds more sections than Arkansas, which has 900. Kansas has 362 sections and Texas's criminal code contains 387 sections. The Model Penal Code, created as a template by scholars and attorneys in 1962, contains only 114 sections.
"New regulatory and licensing offenses do not typically involve conduct that is self-evidently wrong and do not typically require that an individual know or understand that his actions violated a legal or social norm," the study states.
"When governments, especially acting outside the legislative process, criminalize ordinary conduct, some good-hearted people will inevitably be surprised to find themselves in handcuffs."
The study uses as an example the February arrest of bartender Ian McDermid by Oklahoma City police for serving vodka infused with bacon at his northwest Oklahoma City bar, The Pump. The Oklahoma Alcoholic Beverage Laws Enforcement Commission overturned the prohibition on infused drinks in July. McDermid was not charged.
"Every time a well-meaning farmer or small-business owner gets ensnared in the enforcement of shoddily created, overreaching statutes, respect for the law erodes. Such respect is essential for a well-functioning society," the study states.
"In many areas, our crime rate continues to increase," Steele said. "I think that what happens is, when people become involved in the criminal justice system, particularly if they get a felony conviction, I think they're more likely to continue to be involved in the criminal justice system."
Steele said the stigma of a felony conviction leads not only to a loss of freedoms, but excludes them from employment and other "pro-social" activities.
"When hope is gone and an individual feels like they have no other option, they engage in other antisocial behavior," he said. "For the more serious crimes and crimes that involve hurting or crimes against another person, for sure, these are crimes that deserve incarceration.
"But, at the same time, there is no question that we overincarcerate, that incarceration is not always the best remedy, and for us to continue to be willing to incarcerate so many, is in my estimation, not in the best interest of Oklahoma."
Another issue in the state's criminal code is that no effort has been made to remove archaic or outmoded laws while adding additional offenses, according to the study.
"This compounding makes it more difficult for citizens to identify, read and comprehend the offenses for which they can be criminally sanctioned," the study states.
Under Title 59, covering professions and occupations, 35 of the 150 new crimes added to the books fall under that statutory code. Professions facing new regulations include welders, scrap metal dealers, locksmiths, plumbers, dietitians, barbers, interior designers and athletic trainers.
"State lawmakers should give serious consideration to whether criminal enforcement (often without regard to criminal intent), of many of these regulations unnecessarily raises the costs of doing business in the Sooner State and unjustly lands workers in jail," the study states.
The study criticizes the legislature for passing over a "default mens rea standard" introduced in the state House of Representatives this year. "Mens rea" is a legal term that means knowledge or intention of wrongdoing.
"Regardless of whether you knew the act you were committing was a crime or if you accidentally committed the crime, the consequences are likely the same. It's simply unsustainable," Steele said.
As policy recommendations, the Manhattan Institute recommends creating a bipartisan legislative task force in the state to look at overcriminalization, creating a commission to review criminal laws, and enacting a default mens rea provision.
It also suggests converting these criminal offenses to civil infractions, eliminating potential jail time for them, and codifying the rule of lenity, or giving the benefit of the doubt to defendants when statutory language is ambiguous.
"The reforms that we suggest would set Oklahoma on the path toward a coherent, effective criminal law and help establish the state as a national leader in criminal-justice reform," the study concludes.