Tuesday, November 15, 2016

A Kris Steele Makeover using Misdemeanor Meth

A Train Wreck is coming

Imagine, One Meth Possession Arrest or One Hundred Meth Arrests Carrying the same Misdemeanor Penalty

Yes the people voted last Tuesday but once the ad money has evaporated the media is now running stories showing the true effects of SQ 780 and 781 on state, county, and local budgets.

Both state questions were funded mostly by the New York based ACLU which pumped 3.6 million dollars into the total budget of approximately 4 million dollars.  Both measures were written and filed with the Secretary of State by Crowe & Dunlevy, an Oklahoma City law firm on the behalf of the ACLU.  Their ultimate intent is to break the back of the commercial bail bond system, start the path to full legalization of all drugs, to flood the county jails so as to force new jails to be built, and to enrich the lucrative non profit job market so those jobs can be made available to termed out legislators and the spouses/family members of sitting legislators.

Preventing the killing of the bail bond industry is a freedom and liberty issue as it attacks our 8th Amendment that guarantees reasonable bail for those suspected of committing a crime.  Once this kicks in Pretrial counselors will decide who might be a flight risk and thus who gets bail.  There are no provisions for running down those that get out on personal recognizance bonds therefore these government bureaucrats will be reluctant to release defendants. Huge numbers of felony and misdemeanor defendants will simply leave the state once released without a cash bond.  Worse, the shrinking of the bail bond market will drive the vast majority of the 600 registered bail bondsmen out of business, driving down the competition and driving up prices for bail bonds.  Ultimately no one will be able to get out on cash bond once the process is made unprofitable and the most risky defendants are all that is left.  Not unlike Obama Care, drive out the healthy and low risk customers with high prices, leaving the old and sick customers to cover their own costs.
Under our long running system of bail bonds a defendant has the opportunity to get out of jail by posting the entire cash bond set by the court or he (or usually the family) can hire a bail bondsman that guarantees the entire cash bond in return for a 10% fee.  Rarely do defendants post their own bail, they are in jail with no access to checkbooks or credit cards, their families generally co sign and post the 10%  bail fee.  If they run the co signer is on the hook so the families tend to keep close watch on their defendant and the defendant thinks twice before jumping bail.  The result is that bondsmen ensure that 99% of all defendants show up at their court hearings with zero cost to the taxpayers.   There are crimes where bond is not allowed to be posted and the bondsmen are heavily regulated by the State Insurance Department.

What will replace the commercial bail bonds is a system of "nonprofit" businesses such as former Speaker Kris Steele's TEEM organization.  They seek to duplicate the Washington D.C. and federal system of no cash bail, relying upon a complicated calculation wrought using a series of 70 questions answered by the defendant, supposedly enabling the bureaucrat to determine who will run and who will show up for court for justice to be served.

How well does the federal system work?  64% of all federal defendants are not allowed out on bail, a percentage that would bankrupt most states and counties just from the pretrial incarceration costs. It also means the defendants are pressured to agree to plea deals, giving up their right to defend themselves in front of a jury of their peers to avoid personal bankruptcy, losing their jobs, homes, and families, due to sitting in a jail awaiting a trial where they are supposed to be presumed innocent until the jury says otherwise.

And the D.C. model?  The cost is over $60,000,000.00 per year, paid for by the federal government instead of the District of Columbia and local taxpayers.  The number of defendants is around 16,000 per year, leaving a cost per defendant of almost $4,000.00 per year.  Compare that to the approximately 9,000 felony defendants and 4,000 misdemeanor defendants in Oklahoma County alone and you are looking at approximately $23,000,000.00 tax payer dollars per year to run the program.  D.C. has over 350 District employees tracking and processing their 16,000 defendants.  Each year the D.C. no bail system has around 27% of the released defendants fail to appear at their court hearings.

 Under one plan by the supporters of SQ 781 there is a plan to charge  $80.00 per month fee per defendant if he is allowed to check in twice a month, double that if he is required to check in each week.   Do the math, between $80.00 and $160.00 per month,  $960.00 to $1920.00 per year from each defendant plus the cost of drug testing, anger management classes, and other fees.  This is more than most bail bond costs.

Worse, when one of these defendants fails to appear there is no one to chase them down.  A warrant is issued, maybe the person is caught and arrested, where they are released once more with zero personal financial cost.  No bail bond to pay, no lawyer to pay, no skin in the game at all.  New York City recently wrote off over a billion dollars in uncollected bail after spending two years and millions of dollars trying to chase the defendants down and recover the money.  Only 1.5 million was collected in two years, mainly because the criminal class was unemployed or employed off the books selling drugs or working for cash.

The argument against commercial bail bonds is that 70% of the defendants sitting in jail are there because they can't afford to pay the 10% bail bond fee.  The reality is that of those that couldn't pay a $2,000 or less bond fee there were 78% with three or more prior convictions and 60% with a prior felony convictions.  A study done at the Los Angeles County Jail showed that 88% of pretrial detainees sitting in jail for more than seven days had immigration holds, other pending criminal cases, or had already been sentenced on other charges.

Bail bonds started prior to the Magna Carta as a result of people spending years in jail awaiting trial.  Bail ensured that a defendant didn't lose house, home, business, and family before they were found guilty of a crime.  The bonds initially were promises by individuals to pay the bots or fees if the person were to run away and be found guilty and responsible for a crime.  That evolved into a system of professional bondsmen guaranteeing the defendant appearing in court and chasing down the few that refused to honor their word.  For centuries the bail bond system has worked for society.   
The argument against bail bonds is that the poor and minority defendants are most likely to sit in jail.  Well, if you don't have a job, savings, friends and family that trust you enough to raise your bail….your butt is going to sit in jail and you are probably a flight risk to boot.

Last year a similar bail reform system was passed in New Jersey with pilot programs testing the changes in four counties prior to the entire state going to a no bail system on January 1st 2017.  What those counties quickly realized was that it was going to take millions of dollars to implement so they doubled court fees, something that Oklahoma just did in the legislature last year to fund other needs.  The legislature quickly heard from their local sheriffs and county officials that a huge mistake had been made and that it needed unwound.

SQ 780 and 781 were like a lot of the state questions on the ballot.  They didn't belong there, they were there to bypass the legislature where reasoned arguments would have been heard by informed legislators and the unintended consequences revealed.  SQ 780's ballot title was one paragraph; the actual law changes are 138 pages long. Unlike proposed legislation the changes are not marked with strike through and underlined text, you have to go looking for the Easter eggs buried in the law changes by comparing the 138 page official file to the existing statutes.

An example is Title 63, 2-402 where the state question amends not only the prison and fine provisions, it also guts the provisions where second and third convictions allow gradually increased penalties.  It also repeals the felony conviction for selling or possessing drugs within 1000 feet of a school or park or if you are caught with drugs in the presence of a child.  It adds a provision where $100 is paid to a trama care fee to support the medical flight and ambulance systems.

  • Title 21 1713 has the misdemeanor time in jail cut from one year to six months
  • Title 21 1731 has the shoplifting penalty weakened.  Previously a second offense was treated twice as harshly, now first and second offense carry the same penalty.  
  • Title 21 51.3 that covered automatic felonies for second conviction petty larceny was completely repealed.

The rest of the changes changed the felony amount from $500 to $1000 along with cutting the penalties in half in many cases.
The state Attorney General warned of the misleading ballot title along with the warning that selling drugs within 1000 feet of a school or using drugs like meth in the presence of a child and that the ratcheting effect on second and subsequent convictions were gutted from the statutes.  He also warned that the 100th arrest and conviction for meth had no more penalty than the first conviction for meth possession.  However the Oklahoma Supreme Court denied his attempts to add those items to the ballot and denied his second appeal for a re hearing.

SQ 780 is bad for the state because it will increase drug sales near or on schools and playgrounds, doesn't ratchet up sentences and fines for subsequent arrests and convictions and doesn't punish people who use or sell drugs with kids around.  It transfers thousands of felonies into misdemeanors and that will fill the county jails without providing the funding being shifted from state prisons to county jails.

However, SQ 781 is even worse.  It mandates the state to calculate or estimate the "savings" from diverting inmates from the state prison system and deposit those "savings" into a fund that will be shared with drug abuse programs, post conviction rehabilitation programs, and mental health programs.  Note that there is no mention of the costs of incarcerating the convicted person in the county jail.  The new statutes do not say where this "saved" money will come from therefore it must come from the General Fund that pays for all the other state services and needs.

SQ 781 is actually quite vague as it simply creates a new statute under Title 57 section 631 that creates a new revolving fund and earmarks the funds deposited to community rehabilitative services.  Then another section labeled 632 tells the state to calculate the savings from diverting inmates from state prison into the county jails by using estimates or best available data and the new section 633 directs the state to deposit those funds into the new revolving fund.
Regardless SQ 781 was a raid on the state budget to send millions of dollars to the counties while forcing the state to slash other services and programs or raise taxes.  How many millions of dollars? 

According to the OSBI there were over 109,500 felony arrests last year so if you take the Washington D.C. rate of $63,000,000.00 to handle 16,000 defendants you have around $431,000,000.00 in new money needed to pay for the Pretrial, substance abuse, rehabilitative services, and mental health programs.  One figure bandied about but Kris Steele is a "savings" of $19,000.00 per state prisoner diverted to County jails or $52.00 per day.   Yet state figures say about $13,600 per year for a minimum security prisoner or $37.00 per day, compared to the $32.00 that Oklahoma County Jail contracted with the state for excess prisoners.

Another byproduct of the change from felony to misdemeanor will be the unwillingness of commercial bondsmen to write small misdemeanor bonds. One would think that the quantity of bonds needing written would make up for the smaller bond fee but it turns out that misdemeanor bonds are far, far, more likely to be defaulted due to economics and Oklahoma law. First, even if a bond enforcer can see the wanted criminal standing inside the home they are prevented from kicking in the door and arresting the bail jumper.  Second, if the bail jumper flees to another county the cost of finding and transporting him back to jail is more than the bond forfeited by the bail bondsman. 

Then misdemeanors are not extraditable.   An example would be a criminal accused of assault of a police officer that flees to Texas.  A bondsman would be unable to bring that person back across the state line or even if he was found and a Texas bondsman was hired to capture the fleeing criminal the Texas bondsman wouldn't be able to bring the wanted criminal across the state line.

Then take a $2,000 bond that pays a bond fee of 10%, it would cost more than $200 to hire a local bail enforcer to track down a bail jumper and if they criminal was found halfway across the state the transport costs of $1.00 per mile would prohibit going after the escaped criminal.

What will happen once these changes become law is that even more detainees will sit behind bars at the County Jail from the lack of commercial bondsmen willing to write a bail bond and the reluctance of family to post the cash bonds.

However, all of this is designed into the ACLU/Kris Steele plan.  The point isn't to lower the cost of crime as much as it is to kill off commercial bail bonds and fill the coffers of nonprofits that provide Pretrial services and rehabilitative services.  Once the jails begin filling to overcapacity there will be a cry to eliminate cash bonds as even more prisoners are unable to make bond, creating automatic personal recognizance bonds for the majority of misdemeanor and felony criminals.