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Misdemeanors, Municipal Crimes, and Old Warrants: The True Story of What Happened to People Released Under HB 1269

/By  Felicity Rose, Director of Research and Policy, Criminal Justice Reform
“Of the 442 people released in November 2019, 22 had returned to prison by the end of 2021, a recidivism rate of 5%.”

In November 2016, Oklahomans voted overwhelmingly for SQ 780 to make simple drug possession and some low-level theft crimes misdemeanors rather than felonies. This change would have a number of benefits: misdemeanor crimes could not be subject to prison time and the state would save money by reducing its reliance on punishment to respond to substance use-based crimes. The hope, embodied in SQ 781 which passed at the same time, was that those savings would be redirected into substance use and mental health treatment. SQ 780 was not applied retroactively, meaning that it did nothing to help people who had been convicted of these crimes in the past – including those who were still in prison serving time for these crimes.

Before SQ 780 passed, simple possession was the number one crime for which people went to prison in Oklahoma. Over 2,700 people were in prison for this crime on any given day and the average sentence was eight years. After passage, the number of people going to prison began to decline, but many were left behind serving long sentences that would no longer be legal if the crime was committed today. The state legislature decided to address this issue by passing HB1269, which created a special commutation docket to help release people who were still in prison for simple possession and low-level theft. Governor Stitt signed this law in May 2019 and it went into effect November 1, 2019.

As instructed by the law, the Pardon and Parole Board voted in favor and the governor approved a special commutation docket of people who would not have gone to prison under the current law, leading to early release for 442 people and saving a collective 1,931 years of incarceration.

Two years later, the Oklahoma State Bureau of Investigation conducted a review of what had happened to these 442 people in the time following their release. Using the results of this review, The Oklahoman published an inflammatory article stating that half of them had been rearrested and insinuating many of these rearrests were for very serious crimes. This is misleading at best. We took a look at the same data used by The Oklahoman to better understand the full picture of what happened with people released under the initial docket for HB1269. (A few notes on methodology below.)

Of the 442 people released in November 2019, 22 had returned to prison by the end of 2021, a recidivism rate of 5%. By contrast, 32% of people released from prison nationally are back in prison within two years, according to the Bureau of Justice Statistics. An additional 184 (42%) had been arrested since release. But these topline numbers tell only a small sliver of the story. 

Of the 184 people arrested since release who have not returned to prison, only 35%, or just over 1/3, were arrested for a new felony offense. An additional quarter were arrested for a misdemeanor, 20% for a municipal offense such as public intoxication or possession of drug paraphernalia, and 20% for either an old warrant (from before their prison release) or a technical violation such as failure to pay fines and fees. 

“...over half have had no further contact with law enforcement, and those that have been rearrested have mostly been for crimes driven by substance use and poverty such as low-level municipal crimes, misdemeanors, and failure to pay.”

The most common offense for which people were rearrested when they did have a new arrest was simple possession of a controlled substance — the exact crime that had sent them to prison in the first place. This illustrates what researchers have been saying for years — imprisonment is an ineffective response to substance use disorders and dependency.

Of the 422 people released in 2019, 112 or 25% were women. Women were significantly less likely to be rearrested than men, with only 35% of women having any rearrest compared to just over 50% of men. Women were also significantly more likely to be arrested for failure to pay, failure to appear, or a municipal offense (30% of rearrests vs 10% for men), and much less likely than men to be rearrested for a new felony or for a felony bench warrant. Only one woman released on the original HB1269 docket has been returned to prison. Her new arrests were all for property and drug crimes.

Black people released under HB1269 were more likely to be rearrested than white people (58% vs 44%) but no more likely to be returned to prison (6% vs 5%). This is an important illustration of how over-policing impacts certain communities more than others, and why rearrest is such an unreliable measure of recidivism. 

While a small number of people released under HB1269 have committed very serious crimes, over half have had no further contact with law enforcement, and those that have been rearrested have mostly been for crimes driven by substance use and poverty such as low-level municipal crimes, misdemeanors, and failure to pay. Rather than alarming and misleading headlines, Oklahoma’s voters have the right to know that their votes worked — but that the promise of SQ 780 and SQ 781 remains unfulfilled without the funding meant to help people get their lives back on track.

 

Methodology: Most serious rearrest type and offense were coded from information provided by law enforcement agencies to OSBI. A hierarchy of rearrest type was coded as follows: 1) new felony arrest, 2) new misdemeanor arrest, 3) new municipal arrest, 4) felony bench warrant, 5) misdemeanor bench warrant, 6) failure to appear or failure to pay, 7) new arrest – charges not filed or specified. Some rearrests could not be coded in any of these categories because charges were dismissed (without noting what they were) or it was simply listed as “Arrest.” A bench warrant signifies that someone had not committed a new crime but was being arrested on an old warrant, usually for a crime committed before their commutation. If someone had multiple arrest types, they would be listed under the highest ranked type, for instance if they had a new misdemeanor arrest and a felony bench warrant, they would be listed under new misdemeanor arrest.

A similar ranking was done for offense type. Offenses were ranked in the following order: 1) murder, 2) domestic abuse or assault, 3) assault or assault & battery (non-domestic), 4) illegal possession of a firearm, 5) burglary, 6) a drug-related crime other than simple possession or possession of paraphernalia (this includes drug trafficking and distribution), 7) driving under the influence, 8) unauthorized use of a vehicle or larceny of a vehicle, 9) reception/possession of stolen property, 10) possession of a controlled substance, 11) larceny of merchandise or grand larceny, 12) trespassing, 13) obstructing, eluding or resisting an officer. Because of the way offenses were listed (without a statutory reference), these categories had to be applied broadly and the hierarchy was meant to approximate seriousness. If someone had both a burglary arrest and a possession arrest, they would be listed under burglary. Some offenses could not be coded because of a lack of full information. Offenses for which only one person in the dataset was arrested were not coded.

Rearrest information from OSBI was merged with Pardon and Parole Board dockets tracking releases from the HB 1269 docket in November 2019. Both data sets were matched to Department of Corrections data for demographic information.

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