Low felony threshold helping to fill state prisons

Monday, April 30th 2001, 12:00 am

By: News On 6

OKLAHOMA CITY (AP) _ Oklahomans like their state to be tough on crime, but that toughness can make felons out of relatively minor offenders and expose them to years of prison time.

A $50 bad check in Oklahoma is a felony offense under state law that can lead to a $5,000 fine and up to a year in the county jail. If the check is for more than $500, the sentence is up to 10 years in state prison.

The theft of something valued at less than $500 is also a felony that carries a $5,000 fine and up to a year in the county jail. If the value is more than $500, the penalty is up to five years in prison.

And Oklahomans who have a fictitious or forged driver's license or one that contains the photograph of somebody else are subject to as much as seven years in prison and fines of up to $10,000.

``Think of all the teenagers who are getting into clubs. And they charge them with felonies,'' said Jack Pointer, president of the Oklahoma Criminal Defense Lawyers Association.

Oklahoma's low felony threshold troubles Pointer and some state lawmakers who have watched with alarm as the state's incarceration rate has risen to become the nation's third highest.

``We have laymen with this lock-em-up-and-throw-away-the-key mentality,'' Pointer said.

But Richard Wintory, an assistant district attorney in Oklahoma County who has been active in law-and-order issues, said more frequent and lengthy prison sentences have contributed to a decline in Oklahoma's crime rate since 1996.

``We are getting a significant return in fewer victims in Oklahoma,'' Wintory said.

A report released last week by Amnesty International, a London-based human rights organization, said the state incarcerates 681 people per 100,000 residents _ far higher than the national average of 481 per 100,000.

Only Louisiana, with a rate of 793 per 100,000 residents, and Texas, with an incarceration rate of 779 per 100,000, have higher rates, the report said.

Sen. Cal Hobson, D-Lexington, said Oklahoma's low felony threshold and liberal use of the state's habitual offender law by prosecutors has caused the state's inmate population and corrections costs to soar.

``That law is part of the problem that is breaking the bank,'' Hobson said.

The habitual offender statute authorizes mandatory minimum prison sentences of 20 years for multiple felony offenders, even those convicted of non-violent offenses like shoplifting and writing bad checks.

In one recent case, a jury that convicted a habitual shoplifter of her fourth offense recommended a 47-year prison sentence, Pointer said.

More than 22,800 Oklahomans are serving time in the state prison system, 66.1 percent of them for non-violent offenses like burglary, larceny and bogus checks, said Jerry Massie, a spokesman for the state Department of Corrections.

That figure does not include the approximately 33,000 people who are on probation or parole.

The Legislature appropriated $364 million to the Corrections Department last year to keep the state's growing number of inmates behind bars. Hobson said it costs about $16,000 to incarcerate an inmate for a year.

Pointer and Hobson said the escalating cost of the state's prison system will force authorities to turn to alternative forms of sentencing that are less expensive and more effective than jail

``Money and numbers are going to force the district attorneys to go to community sentencing and drug courts,'' Pointer said.

Recidivism rates for defendants ordered to complete treatment and prevention programs by one of the state's drug courts is about 10 percent compared to 40-60 percent recidivism rates for those required to serve only jail time.

But Pointer said Oklahoma prosecutors have been slow to accept community sentencing, an alternative sentencing program that frequently includes probation and participation in a substance abuse or similar program.

District attorneys must recommend a defendant before the offender is eligible to participate in a community sentencing program.

``They don't want to appear to be soft on crime,'' Pointer said. ``It's a political decision. We think it should be a judicial decision.''

``There are good reasons why we vest this authority: To protect the public safety,'' Wintory said.

Efforts are under way in the Legislature to increase the felony threshold for certain offenses, including the $50 threshold for bogus checks.

``It's by far the lowest in the country,'' Hobson said. A measure that would increase the threshold to $500 _ the national average _ is pending in a House-Senate conference committee, Hobson said.

Hobson said many district attorneys have launched hot check collection programs that give violators an opportunity to pay the debt and avoid the risk of a felony conviction and jail time.

``I think that's a far better approach,'' Hobson said. ``It does the merchant no good to not be paid back. The offender can't do that if he is sitting in the city or the county jail.''

``Usually these are people who are on the fringes, having a very hard time,'' Pointer said. Frequently, they are single mothers or people with substance abuse problems.

``And all of a sudden they're in the criminal justice system,'' Pointer said. ``They had problems anyway. Now we're going to label them felons.''

Wintory said it is appropriate for the Legislature to review felony thresholds and change them if needed.

But Wintory said it is the non-violent multiple offender who is at risk of receiving a lengthy jail sentence, not the first-time offender.

``That's how you can go to the joint behind one of these crimes,'' he said.

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