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Priced out

HB 1269 makes drug sentencing reform retroactive—for those who can afford it

In 2016, Oklahoma voters made simple drug possession a misdemeanor instead of a felony. By voting yes on State Question 780, Oklahomans expressed a clear desire to prioritize treatment over incarceration for those struggling with addiction.

These changes raised significant public policy and moral questions. What should be done about the people serving felony sentences in Oklahoma prisons that would be misdemeanors under current law? What about the thousands more with prior felony convictions for crimes that are now less serious offenses?

HB 1269 was designed to make State Question 780 retroactive, so that people arrested for simple drug possession before SQ 780 would have the opportunity to undo the lifelong consequences of a felony sentence. HB 1269 will create an opportunity for nearly 1,000 people serving time in prison for simple possession to have their felony sentences commuted by the Pardon and Parole Board. If Gov. Kevin Stitt signs the bill, these commutations would begin in December or January.

HB 1269 is a positive step for justice reform in Oklahoma, but a recent amendment will complicate the process and create financial hurdles for Oklahomans trying to remove a felony from their records. The bill now uses expungements to erase the criminal records of those sentenced before simple drug possession became a misdemeanor. A breadwinner with a felony record has greatly diminished job prospects, so it’s important for the more than 60,000 Oklahomans with simple drug possession felonies to have an accessible path to clearing their record.

Unfortunately, the expungement process proposed in HB 1269 will price it out of reach for many individuals. The process requires numerous expensive steps and often the assistance of an attorney. At a minimum, it will cost more than $300 just to fill out the expungement paperwork created by HB 1269. Attorney fees may cost hundreds more, in addition to any other fines and fees that individuals must pay before they can file for expungement.

The new language of HB 1269 perpetuates a two-tiered justice system where those with the financial means to hire an attorney and pay these costs have better access to justice. Low-income Oklahomans, largely from rural communities and communities of color, will have great difficulty benefiting from this new system.

Lawmakers should fix this problem by waiving these expungement costs for anyone filing under the new provisions of HB 1269. Justice reforms that can only be accessed by those with money are not a real break from the failed policies of the past.

The fact that nearly 1,000 Oklahomans will be released from prison early because of HB 1269 is a profound victory for justice reform in this state. However, the bill leaves more than 60,000 Oklahomans outside prison with a costly and prohibitive expungement process.

Oklahoma voters decided that prison is not a rational or cost-effective means of dealing with addiction, and policymakers should respect this decision. HB 1269 is a positive first step, but lawmakers should address the issues left unresolved by this legislation if they hope to truly alter the direction of Oklahoma’s incarceration crisis. The future of thousands of Oklahomans depends on it.

Damion Shade is a criminal justice policy analyst with Oklahoma Policy Institute.

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