More Than 450 Oklahoma Inmates Freed as Part of Mass Commutation - What Now?
On November 1, first-term Oklahoma Governor Kevin Stitt declared that “today, we’re implementing the will of the people.” In a flurry of signatures, Oklahoma moved one step closer to removing the abhorrent distinction as the state with the highest incarceration rate in the United States and what resulted was the largest single-day commutation in U.S. history. The commutations came after a 2019 law went into effect and made it easier for Oklahoma Pardon & Parole Board to review the sentences of inmates who were previously charged with crimes that would not be considered felonies if charged under applicable laws today.
In turn, Oklahoma Pardon & Parole Board reviewed cases involving simple drug possession (now considered a misdemeanor) and low-level property cases of over 800 Department of Corrections (DOC) inmates and recommended 527 to Gov. Stitt. 462 inmates were released on November 4, 2019. The recommended inmates, on average, are 39.7 years old and have been incarcerated for three years. Overall, the single-day commutation is reported to have commuted 1,931 sentenced years - about 1.34 years per inmate. In a state which houses 26,334 inmates in DOC custody, any progress is welcomed.
It is nothing short of deserved and long overdue. It is a historical day for Oklahoma and the efforts for comprehensive criminal justice reform. But what now? Many individuals have reached out with one simple question: can I clear my record?
Oklahoma Expungement Eligibility Expanded - New Oklahoma Laws 2019
Criminal justice reform has also brought expanded eligibility to individuals still suffering from the stigma of an Oklahoma criminal record. New expungement laws went into effect on November 1 and more people will become eligible to have their arrests and cases expunged. Two categories of people affected are individuals who have two nonviolent felony convictions and others convicted of a nonviolent felony that has subsequently been classified as a misdemeanor.
Two Nonviolent Felony Convictions
Under new Oklahoma expungement laws, an individual will be eligible for an expungement if:
You were convicted of not more than two non-violent felonies;
You have not been convicted of any offense that request you to be a registered sex offender;
no felony or misdemeanor charges are pending against the person; and
at least than yeas have passed since the completion of the sentence for the felony conviction.
Prior to November 1, Oklahoma law required an individual obtain a pardon by the Governor in order to expunge up to two felony convictions. While there are certain legislative errors when adopting the language of the new statute, the intent of this change is to give Oklahomans the ability to expunge two felonies.
It is also important to know that this change will not reinstate certain rights lost as a result of a felony conviction, including firearms rights. Someone who receives all of their felony cases expunged under this section will still be prohibited from possessing a firearm and can be charged with Possession of a Firearm After Former Felony Conviction. Reinstatement of individual rights, including firearms rights, requires a pardon by the governor.
Nonviolent Felony Reclassified as a Misdemeanor
Under new Oklahoma expungement laws, an individual will be eligible for an expungement if:
You were convicted of a nonviolent felony that was subsequently reclassified as a misdemeanor under Oklahoma law;
You are not currently serving a sentence for a crime in this state or another state;
At least thirty (30) days have passed since the completion or commutation of the sentence for the crime that was reclassified as a misdemeanor;
Any restitution ordered by the court to be paid has been satisfied in full; and
Any treatment program ordered by the court has been successfully completed,including failure of a treatment program that resulted in an accelerated or revoked sentence that has since been successfully completed by the person or the person can show successful completion of a treatment program at a later date.
The purpose of this change was to make State Question 780 retroactive - effectively, it almost gets there. This new eligibility category actually requires someone to get a felony conviction first and does not account for individuals who received a felony deferred sentence for crimes that have subsequently been reclassified as a misdemeanor. To have a felony deferred sentence expunged, a person will have to wait five (5) years after the case was dismissed. Consequently, a person who is on a deferred sentence may consider accelerating their sentencing to a conviction, wait 30 days, then file for an expungement. If the Oklahoma legislature really considered this then I have genuinely lost confidence in their representation.
This change also only refers to “a nonviolent felony offense.” It is not clear if a person is eligible for one and only one expungement of a nonviolent felony offense. For instance, if a person has two separate felony cases that are simple drug possession, can only one case be expunged? If someone has one felony drug possession conviction, they more than likely have more than just one. This cannot have been the intent. The point should be to expunge all felonies that have been subsequently reduced to a misdemeanor — not just one per person.
It is also unknown how this change will affect firearms rights. It is likely that someone who receives an expungement under this new provision will still be prohibited from possessing a firearm and may still be prosecuted for Possession of a Firearm After Former Felony Conviction.
Oklahoma State Bureau of Investigation provides a comprehensive criminal history check. If you have been arrested and fingerprinted, you will likely have an arrest record. There is a $15 processing for for each person searched; the fee is set by statute and cannot be waived or reduced.
What is the process of obtaining an Expungement?
In order to qualify for an expungement in Oklahoma, an individual must satisfy one of the requirements under Title 22, Section 18 of the Oklahoma Statutes. This differs from the sealing of a court file pursuant to a Section 991(c) deferred sentence. There are several factors that weigh on your ability to qualify under this statute so it is important to consult with an experienced Oklahoma Expungement Attorney about your case.
If an individual qualifies, a civil lawsuit must be filed in Oklahoma District Court in the county in which the charges were prosecuted. This requirement applies regardless of whether the charges were prosecuted in state court or a municipal court. Once your lawsuit has been filed, a hearing date will be set within 30 to 45 days. Notice must be provided to all interested parties including the arresting agency, the prosecuting office and the Oklahoma Bureau of Investigation. It may also be necessary to give notice to the Oklahoma Department of Public Safety and any facility into which the individual was booked or held after the arrest.
If no one objects to the granting of the expungement, all parties will typically sign an agreed proposed order that is then presented to the District Judge for signature. Certified copies of the order will then be distributed to all parties and all public records of the arrest, prosecution, probation and/or conviction will be sealed to the public. Some parties, including OSBI, may require a fee to expungement or destroy records. If all parties do not agree, then the court will hold the hearing to determine if the expungement should be granted. The court will balance the need for the public to know for public safety purposes versus the harm to the privacy of the person in interest or dangers of unwarranted adverse consequences.
What happens after it’s final?
Once the expungement is signed and filed with the District Court Clerk, an individual - as well as law enforcement - may reply to an inquiry about an arrest or charge that no such event happened and be safe in knowing the law in Oklahoma says this is true. However, even with an expungement, law enforcement and prosecuting authorities will always be bale to see the sealed information in relation to law enforcement needs; they just cannot share or publicly disclose the information.
To learn more about an Oklahoma Expungement or to see if you may qualify for an Expungement in Oklahoma, call Diver Law Firm at (405) 896-8080 or email us at diverlawfirm@gmail.com to schedule a free consultation.
Click the link below and complete our free Oklahoma Expungement Application. A dedicated Oklahoma Expungement Lawyer will contact you as soon as possible!