Retroactive Simple Possession Law Could Affect Thousands of Oklahomans

Oklahoma has come a long way in recent years in its efforts toward criminal justice reform. One of the biggest triumphs was a reduction in the classification and penalties associated with simple drug possession. Historically, Oklahoma has had some of the toughest drug laws in the nation, and, as a result, has ranked among the nation's highest incarceration rates.

According to the Oklahoma Policy Institute, simple drug possession was the most common charge for state prison admissions. In 2016, Oklahoma voters decided enough was enough. They showed that they were tired of over-zealous prosecution and penalization of minor drug crimes by passing State Question 780, which reclassified simple possession, or drug possession for personal use, as a misdemeanor rather than a felony, and thereby taking away the possibility of prison time for the offense.

Making Oklahoma's Drug Possession Law Retroactive

Now, Oklahoma Governor Kevin Stitt has taken the measure a step further by signing legislation that would make SQ 780 retroactive. In other words, the law doesn't just apply to drug possession convictions occurring on or after July 1, 2017, when SQ 780 first took effect, but it now applies to all simple drug possession convictions. How will this affect Oklahomans who were convicted under older, harsher drug laws? Experts say it could bring relief for more than 60,000 people convicted of felony drug crimes for the now-misdemeanor offense of simple drug possession for personal use.

Governor Stitt signing the legislation is a great start. It theoretically gives inmates the ability to use the new, more lenient punishment ranges to their benefit if they were originally convicted under the old laws that made simple possession of any schedule I drug (aside from marijuana) a felony offense on a first-time charge. However, Stitt’s signature on the law is only the beginning.

The question now becomes, “how will inmates achieve any relief moving forward?” The expungement aspect is not an issue. That is a simple fix. Changing the sentences for inmates will be a different issue though. Having the legislation at one’s disposal is only half the battle, however. There needs to be a proper and preferred legal procedure in place to alleviate unnecessary litigation. Unless and until there is some sort of discussion or administrative position taken by the Department of Corrections, inmates will be forced to rely on civil lawsuits or extraordinary writs in order to get their case back in front of a judge.

Similarities to Past Law Changes

This issue reminds me, to a certain extent, of the battle my office, and a few other attorneys, had with the Department of Corrections when we successfully challenged the Oklahoma sex offender laws. In that situation, we were arguing the converse of the current argument: our efforts led the Oklahoma Supreme Court to rule that the new sex offender laws were NOT retroactive, and therefore they should not be applied to people who were sentenced prior to the new laws being enacted. In that situation, we had to bring civil lawsuits against the Oklahoma Department of Corrections to enforce the Oklahoma Supreme Court’s ruling and give defendant’s the benefit of the laws in place at the time they actually pled guilty or were otherwise convicted.

Here though, inmates and their counsel will be arguing the opposite position: the new laws ARE retroactive, and they should receive the benefit of the changes to the sentences of their crimes of conviction. So, what is the best way to achieve that benefit?

Moving Forward

There is always the possibility of filing a writ of habeas corpus to get the original case brought back in front of a judge on the argument that the new laws should apply. That would be one method, although it may require more moving parts than our current system can accommodate. The hearings and the transportation of the inmates to the county district courts could become overwhelming. Our justice system in Oklahoma is already stretched further than our legislature will account for in budgets and discretionary spending.

Another potential avenue would be post-conviction relief. With the retroactivity issue hopefully settled for good, most prosecutors should be happy to oblige a post-conviction application based on the argument.If all parties agree on the matter, the controlling law, and the intended resolution, it is possible to achieve an agreed order granting post-conviction relief. In my opinion, that would be the most economical and efficient method for resolving the upcoming disputes.

Regardless of the new legislation and the Governor’s agreement through signature, there will undoubtedly be some push-back from at least a few prosecutors across the state. Consequently, any individual or family member hoping to take advantage of the new legislation making the mandates of State Question 780 retroactive should consult with, and hire, an attorney to make sure that the issue is resolved correctly in their favor.

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