Failure to Protect: Conflicting Sentencing Recommendations in Rebecca Hogue Case

The pre-sentencing investigation conducted by the Oklahoma Department of Corrections (DOC) adds yet another twist to the case of Rebecca Hogue, the Cleveland County mother convicted by a jury in November 2021, of first-degree murder. Ms. Hogue faced charges after her boyfriend — who killed her two-year-old son — took his own life before he was taken into custody.

The jury found her guilty of the charge, but it recommended life imprisonment with the possibility of parole. Instead of imprisonment, the DOC report recommends that the judge sentence Ms. Hogue to a residential mental-health facility to receive treatment followed by probation supervision upon her release.

Factors considered by the DOC in making its recommendation

The defendant was scheduled to return to court for sentencing on February 11, 2022. As is often done following a conviction, the judge ordered a pre-sentencing investigation.

According to a news story, the investigation results, along with the DOC recommendation of no imprisonment, are contained in a pre-sentence report that will be available to the judge for consideration when imposing a sentence. It is essential to keep in mind that, regardless of the sentencing recommendations from the jury and DOC, the final decision rests solely within the discretion of the judge who presided over the trial.

Some of the factors that led DOC investigators to make the recommendation contained in the report were the following (according to news outlets):

·      Investigators determined that the defendant does not pose a threat to the community.

·      Any threat posed by the defendant is to herself. Investigators reported that she was remorseful, emotionally distraught, and grieving.

·      Investigators suggested that a course of long-term mental health treatment in a residential facility would benefit the defendant and help her overcome the emotional trauma she currently exhibits.

It is interesting to note that investigators also mentioned misgivings on the part of the prosecutor handling the trial about the strength of the evidence against the defendant. Specifically, the prosecutor doubting the ability of the state to meet its burden of proof in showing the defendant knew that her boyfriend was abusing her son.

The prosecutor's statement was made outside the presence of jurors. It was consistent with statements made by the lead detective in charge of the investigation into the child's death. The detective was heard on a recording expressing doubts that the mother had committed a crime; however, any reservations he may have had could not be revealed to jurors according to an evidentiary ruling by the judge.

Why do we send people to prison?

The United States incarceration rate far outpaces that of other countries. The incarceration rate per 100,000 people in England is 131, France is 93, and Germany is 69. The U.S. rate is 639, which even surpasses El Salvador, Brazil, and Turkey.

Imprisonment is a popular sentence in the U.S., particularly when the defendant has been convicted of a violent crime. When considering the available sentencing options, judges must be mindful of the underlying purposes of sentencing, which are deterrence and retribution.

The sentence must deter the person convicted of committing the offense from doing so in the future. It also should deter anyone else who may consider engaging in similar behavior from committing similar crimes in the future as well.

Retribution — whether by taking away a person's freedom through incarceration or forcing an offender to give up money through the imposition of a fine — exacts a price for the wrongful conduct committed by a person convicted of a crime.

With this in mind, though, it’s imperative to remember that incarceration is not the only option to accomplish these goals when imposing a sentence. In Hogue’s situation, the DOC recommendation clearly recognizes this aspect by offering an alternative that can still provide deterrence by addressing any of the defendant’s potential mental health issues and affording “punishment” by taking away freedom through confinement at a treatment facility followed by probation supervision.

What did the court eventually decide?

All things considered, the jury heard the facts of the case as proven by the evidence and returned a verdict convicting the defendant with a recommended sentence of life in prison with the possibility of parole. It’s important to keep that sentence in context, though: When someone is convicted of first-degree murder in Oklahoma, the only sentencing options available to the jury are life in prison with the possibility of parole or life in prison with no possibility of parole.

As such, even if the jury had wanted to recommend a different sentence than those two, they were not allowed under Oklahoma law. DOC, which had access to information not available to jurors, suggested a residential treatment facility followed by probation.

On the afternoon of February 11, 2022, the district judge on the case heard argument and sentenced Hogue to a total of sixteen months incarceration. The judge ordered Hogue receive credit for the time she has already served in custody, which amounts to approximately three months. As such, she will spend close to thirteen months in prison. Since first-degree murder is considered an “85% crime” in Oklahoma, Hogue will be eligible for parole until she serves 85% of the sixteen months.

The sentence is a favorable outcome when considering the alternative (life in prison); however, the “victory” still seems somewhat empty. Sadly, Rebecca Hogue may also be a victim in this matter. Although her son was a victim of her boyfriend’s actions, Hogue is a victim of Oklahoma’s antiquated position regarding “failure to protect” legislation…or the lack thereof.

Only time will tell if our lawmakers step in and rectify this error in the law.

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