Oklahoma Criminal Defense Blog

When the big prison riot at North Fork Correctional Facility in Beckham County erupted in October, 2011, it required help from lots of law enforcement from surrounding communities.  The facility is owned by Corrections Corporation of America (CCA), but the private prison does not have the wherewithal to put down a riot, especially one of this magnitude.  Forty six prisoners were injured, sixteen of them taken to local hospitals, and three of them were critically injured.

The Oklahoma Department of Corrections wants to know what happened.  None of the perpetrators has yet been prosecuted.   Department of Corrections did not have what it considers adequate reports, nor does the local  district attorney have reports adequate to prosecute anyone. Department of Corrections would like to demand more, but there is apparently a hole in the laws, such that Department of Corrections seeks an amendment in the laws for reporting by private prisons.

The proposed change in law would require a private prison to provide information to the Department of Corrections regarding an riot, escape “or other serious emergency and facility operations”  upon request of Department of Corrections.

A couple of months after the riot, neither the Department of Corrections nor local law enforcement had received any reports from CCA.  Now CCA says it has long since submitted its report.  However, the local prosecutor says he is still waiting for something in a form he can prosecute.

CCA sent its own investigators who compiled a 2,700 page report on the riot, and they delivered it several months after the riot.  One of the the problems is physical evidence needed for prosecutions.  It has been kept somewhere in lockers and has not been prepared for use in the courtroom.  The CCA investigators did not have the necessary forensic experience to prepare a case for the courtroom, or else they forgot what they once knew.  Assembling physical evidence, the testimony of witnesses and otherwise putting a case together for effective use before a jury is not just  an exercise in logic, nor are all the methods necessarily intuitive.  It requires experience to know how to do it.  Ask any criminal defense attorney.  Cases are won and lost every day in courtrooms from the success or failure to fit such pieces together.  Some of the physical evidence in this matter has just sat in a locker and was never sent to the laboratory for analysis.  That includes blood analyses and fingerprint comparisons.

What about the cost for all the local law enforcement required to put down the riot, a riot that took place on private property?  Apparently, it’s just the cost of doing business, since the CCA prison brings a $20 million per year payroll to Beckham County and is the largest employer in Sayre.  Obviously, the area residents consider the prison to be an economic contributor, so no one is complaining about the cost borne by local governments for the riot.  That is surely why the district attorney and the local law enforcement officials are now diligently down-playing any complaints about CCA.

Neither is anyone complaining that all the prisoners are from California, shipped here due to California’s overfull prisons.  Apparently, people believe that prisoners bring economic benefit whatever state they may come from.  But all 2,000 of those California prisoners at the North Fork Facility are projected to be gone by the end of 2013. The only issue officially from the Oklahoma Department of Corrections, is that private prisons are not required to provide sufficient reporting to the Department.

Elderly prisoners, both male and female, are the most rapidly growing group in American  prisons.  Staff in the prisons are facing increasing difficulties in providing these prisoners
appropriate housing and medical care.  Because of their higher rates of illness and physical and mental impairments, older prisoners incur medical costs three to nine times as high as those for younger prisoners.

Some reports put the number of convicted state and federal prisoners who are 65 or older at growing between 2007 and 2010 at 94 times the rate of the overall prison population.  The number of sentenced prisoners 55 years or older grew at six times the rate of the overall prison population between 1995 and 2010.  Commentators have reminded us that prisons were never designed to be geriatric facilities, and they simply do not have adequate facilities for the aged prisoners.  Yet prisons are operating what amounts to old age homes behind bars.

Many of today’s prisoners will not get out of prison, thanks to the trend toward long sentences, until they are very old.  Some, of course, will never get out, but they will live longer than prisoners in earlier years.  Nearly one in ten prisoners in state prisons, more precisely 9.6 percent,  is serving a life sentence. An additional 11.2 percent of state prisoners have sentences longer than 20 years.

A study of twenty prisons of 20 prisons in nine states interviewed prison officials, corrections and gerontology experts, and the prisoners. The study found officials scrambling to respond to the needs and vulnerabilities of the older prisoners.

Yet even with these added burdens, the prisons are experiencing shrinking budgets.
They have other obstacles in old prison architecture that is not designed for common age-related disabilities.   Prison officials also must deal with limited medical staff and medical facilities, lack of planning and a paucity of support from elected officials.  And prison officials must deal with all these issues in the context of meeting the press of day-to-day operations.

Serving time in prison can be hard for anyone, but it is particularly challenging for the growing number of older prisoners who are frail, have mobility, hearing, and vision impairments, and are suffering chronic, disabling, and terminal illnesses or diminishing cognitive capacities.

Prison facilities, rules, and customs were created with younger inmates in mind, and they can pose special hardships for older inmates. Walking a long distance to the dining hall, climbing up to a top bunk, or even standing for count can be virtually impossible for some older prisoners. Incontinence and dementia present special problems.  Prisons with high proportions of elderly prisoners have reported staff behavior has had to adapt to the realities of aging bodies and minds.  For instance, staff who work with the elderly know it makes no sense to yell at a prisoner who doesn’t understand what is being yelled.  Older prisoners have to be given more leeway when it comes to enforcing the rules.

Unless there is some moderation to the policies that tout being especially “tough on crime,” the number of aging prisoners will continue to grow.   These policies include long mandatory minimum sentences, increasing life sentences, and reduced opportunities for parole. These policies keeps many older prisoners remain incarcerated even though they are too old and infirm to threaten public safety if released.

A collection of statistics gives some particularity to these descriptions:  One in ten state prisoners is serving a life sentence;  fifteen percent of state prisoners age 61 or older have been in prison more than 20 years;  Eleven percent of federal prisoners age 51 or older are serving sentences ranging from 30 years to life, and there is no federal parole; in Florida, the 16 percent of the prison population 50 years or over accounts for 40.1 percent of all episodes of medical care and 47.9 percent of all hospital days.

Some ideas for addressing these issues including a review of sentencing and release policies to determine which could be modified to reduce the growing population of older prisoners without risking public safety.  Knowledgeable critics have proposed other ideas as well including developing a comprehensive plans for housing, medical care, and programs for the current and projected populations of older prisoners and modifying prison rules that impose unnecessary hardship on older inmates.

When talk turned to letting prison inmates out early with ankle monitors, who thought about losing money?  Apparently, the people who operate the private prisons who lose inmates from such a program.

On the first day of this month, the Department of Corrections implemented a new statute, HB 2131, that released on GPS monitoring those inmates convicted of non-violent crimes who were serving a sentence of less than five years and have only ninety days of their sentence left to serve.  The only recent change in the law is that it makes eligible those who have ninety days left on their sentences rather than 180 days.

The largest for-profit provider of halfway houses in the state of Oklahoma was so concerned about losing this business that they met with officials of the Department of Corrections, then met with the governor and the Speaker of the House, who was the author of HB 2131.  Avalon Correctional Services explained their concern, with a straight face as just a concern for public safety.  Speaker Steele explained that Avalon met with him just to be sure he understood how good their programs are.

The company has seen a big drop in its halfway house populations.  Their halfway house in Tulsa was only 60 percent to capacity this October versus 97 of capacity in October, 2010.  Since Department of Corrections pays Avalon $33.75 per day per inmate, the total drop could reach $120,000 per month for only one of the Avalon facilities.

The Department of Corrections claims to have 10 years of studies that show this type of release works.  The Department’s director, Justin Jones, said he got an avalanche of telephone calls for people concerned that hundreds of inmates would be released under the new law.  But, in fact, fewer than 170 inmates were released early for the GPS monitoring.

The new law is aimed at reducing the terrific costs of housing inmates in times of budget shortfalls.  It did not change who is eligible; it just changed time frame of remaining sentence from 180 days to 90 days.

The Department of Corrections claims this program has a 90 percent success rate for women and an 87 percent success rate for male inmates.   This is better than any of the specialty programs, like drug court or community sentencing, both of which are excellent programs with excellent track records.

Avalon helped address the state’s budget shortfalls two years ago when it agreed to accept a 5 ½ percent decrease in the per diem rate Department of Corrections paid for halfway house occupants.   The department budget fell from $503 million in 2010 to $462 this year.

Staff disciplinary actions by the Department of Corrections give some insight into the culture and people at the Department of Corrections and at least one of the prisons in Oklahoma.  Department spokesmen say in deciding the penalties, they consider various factors to arrive at an appropriate punishment, including obviously the nature of the violation in question and disciplinary actions in the past.

Mabel Bassett in McLoud is one of three correctional facilities for women in Oklahoma. Opened in 1998, it is a maximum security facility.  Of three of the employees of the facility who were disciplined, the nature of the violation, the type of discipline exacted, and, for two of them, the response of the employee to that discipline, offers light on the kind of employees who work there and what kind of organization they work for.

Some of the employees found good in their having been disciplined, that is, in learning a lesson.   Corporal David Juber was suspended for two days without pay in January, 2009.  His offense was accepting three to four letters “of a sexual nature” from an inmate and then not informing supervisors of the letters.  Juber stopped accepting the letters and told officers he was having marital problems at the time and explained that he liked the attention he got in the letters.  In response to the Department’s discipline, Juber wrote, “I know what I did was wrong. This type of action will never happen again. “ And, so far as we know, it did not.  But in February, 2010, CPL Juber received a four-day suspension, this time for breaking the rules on the use of tobacco, to wit, by taking chewing tobacco from a bathroom hiding place.

An independently-financed study has concluded that Oklahoma’s parole process is keeping the prison population too high for taxpayers to afford.  Still another study with the same conclusion.  The Northpointe Institute for Public Management conducted the study which was financed by the George Kaiser Family Foundation.

Oklahoma is the only state that requires the governor to approve paroles.   Not mentioned in any of the studies is that the political pressure on governors to “lock ‘em up” which is a constant force against governors’ granting paroles.  That is likely one of the significant reasons no other states allow (i.e., make) the governor  to make those calls.

The parole board has an approval rate that  is approximately 13 percent, but the parole approval rate from governors is closer to 11 percent.  This is what the legislature is looking at closely as money shortages continue in state budgets.  If parole approval rates increased to 20 percent, it would save the state an estimated $9.7 million the first year.  Further calculations show that a 60 percent parole approval rate would produce an estimated $33 million.

Director of Corrections Director Justin Jones said this study came to the same conclusions as a study in 2007, that Oklahoma had one of the lowest parole approval rates in the country.   But this study expresses its conclusions in terms of dollars saved, a cost-benefit analysis.  He thought it was the most in-depth study done, and, one done without tax dollars, since a private foundation paid for the study.

Oklahoma’s prisons are now at 98 percent capacity at 26,000 prisoners.  Since 2006, inmate population has been increasing every year from 8,500 each year to 9,000 last year.  Meanwhile, releases from prisons decreased from 8,700 in 2008 to 8,500 this year.  The estimated cost of keeping inmates for 2.4 years while they are eligible for parole is $192 million.

Inmates often waive parole now because their sentences are shorter than waiting for the parole process.  The parole process takes 130 days on average, and the cost of this delay taxpayers is $3 million.  A prisoner who is near the end of his sentence would rather wait a little longer before release and then be released without the conditions of parole.  Additionally, denial of parole would prohibit an inmate from eligibility for the GPS monitor program.   There are 6,913 inmates coming up for parole for the first time in the next year, and there are 5,305 inmates without life sentences serving time past their first parole eligibility.   An inmate who is denied parole must wait for another chance at parole for at least one year in the case of non-violent sentences and at least 3 years for those convicted of violent crimes.

Pending now before the legislature is House Bill 2131, sponsored by Speaker of the House Kris Steele, which would allow the governor to grant paroles in cases of certain crimes.  The Bill provides the parole board’s decision in all other cases would automatically go into effect unless the governor took action within 30 days.  The bill would also extend eligibility for inmates for community sentencing and GPS monitoring.

Year after year, the Oklahoma Department of Corrections comes back to the legislature again and again for supplemental funding.  They can never get enough money.  It’s the same in every state.

“Corrections spending is a Pac Man in state budgets everywhere.  It’s eating into all other priorities,” Michael Thompson, executive director of the Council of State Governments Justice Center said.  He spoke earlier this week at a forum to discuss corrections policies.   He and other experts, discussing what other states are doing about problems in corrections, said Oklahoma legislators seem to be headed in the right direction.

This year the Oklahoma legislator has proclaimed corrections a top priority.  Its consumption of money has been a black hole for years, and there is no end in sight.  The prison population has been exploding from one of the highest rates of incarceration in the country.   The Speaker of the House said, “I don’t believe we can afford to continue on the path we are on.”   That is an understatement.

The experts offered some ideas from other states.  The state of Washington decided in 2002 to reduce sentences for drug offenders.  The cost savings were dedicated to drug courts.  The crime rate now is 43% lower than it was in 1980, yet spending for criminal justice has increased 117 % during that period.   The director of the Washington State Institute for Public Policy, Steve Aos, offered a perspective.  “If you put everybody in prison, your crime rate will go to zero.  If you put nobody in prison, your crime rate is going to go up.  Where you want to be on that curve is a very important policy call,” he said.

That is why policy changes in the state of Washington have brought savings to the state budget.  Aos said the state’s budget deficit this year would be 25% greater if not for the savings from the changes in corrections policies.

Thompson said the state of Kansas is safer now even though it spends less on corrections.  The state of Kansas adopted changes similar to those of Washington, and its prison spending went down even as its crime rate went down.  He said Oklahoma has a huge reliance on prisons because it does not use enough other options in probation, parole and community sentencing or other alternate sentencings.

Among the proposals pending in Oklahoma are requiring more alternative and community sentencing and removing the governor from the parole process for nonviolent offenders.  Why take the governor out of the process?  The governor, like all politicians, cannot appear soft on crime.  That’s why the number of paroles has declined over the years, even while the legislature enacts harsher penalties and higher minimum sentences and the courts stuff more inmates into the system every year.  More in, fewer out.  It just cannot go on because we ran out of money a long time ago.

There were 2, 760 women in Oklahoma prisons in 2010.  Of that number, 1,744 or 63% were in need of substance abuse treatment, but programs are not available for them.  Education programs are even more scarce.   A substance abuse treatment program requires 4 to 12 months to complete.   Of the 885 women inmates released last year, only 28% of those who needed such a program had done so.

Substance abuse programs have a budget of $611,404 from state, federal and private funds.  Of that total, federal funds are $161,050 and $200,314 come from the George Kaiser Family Foundation.  The state must match any federal contributions

About 71% of women coming into prison need general education.  That is defined in terms of Department of Corrections programs as literacy, adult basic education and the GED (General Education Diploma).   There were 1,500 who did participate in one or more of the general education programs.

Inmates also have access to programs sponsored by Career Tech rather than the Department of Corrections.  Last year, 329 women participated in their programs in the electrical and manufacturing trades.  Inmates are discouraged from pursing the health and some other fields because of employment restrictions on those with felony convictions.  Of these, 222 completed their program, 82 are still working on it, and 22 did not complete it.  Incompletion can result from disciplinary action but also from transfer, discharge or parole.

Courses in manufacturing and computer skills are the most popular.  Manufacturing includes learning inventory and warehousing.

The Department of Correction spends $74,000 a year for basic education classes.  Career Tech spends $5.7 million on skills courses for all inmates, of which $627,513 is spend on programs for female inmates.  Male inmates makeup 90% of the total prisoner population in Oklahoma.

Every criminal defense attorney knows that substance abuse programs and education programs, especially literacy, cut recidivism.  Warehousing prisoners just prepares them for the next cycle back into  prison.  It’s always a question of money, of course.  But fitting a 13 month sentence into a 12 month program is a problem as well, when the first 2-3 months of the sentence are taken up with initial processing.   Thirteen months is the average sentence for a non-violent offender, which is what most drug offenders are, and, as noted above, it takes from 4 to 12 months to complete a substance abuse program.  So it’s not just money.  But the money is never there.

After constant problems in New York’s youth prisons, the Department of Justice threatened to take over the state juvenile system.  The state of New York and the Justice came to a compromise, putting four of the youth problems under federal supervision.

A settlement agreement was filed in U.S. District Court, formalizing the agreement between federal and state officials.  The federal inquiry began in 2007 after a number of incidents, including the death of an emotionally disturbed 15-year old in 2006.  The problems in New York facilities might be even worse than those attacked in a lawsuit pending in federal court against the Oklahoma Department of Human Services.

The settlement will place four of New York’s most dangerous prisons under strict federal control.  There will be tight limits on the use of physical force by guards.  Also dozens of psychiatrists, counselors, and investigators will be hired for the juvenile facilities.

The majority of the juveniles in custody have drug or alcohol problems, developmental disabilities, or other mental health problems, yet the state did not have even one full-time psychiatrist on the staff.  Henceforth, guards, known as youth counselors, will be not be allowed to use physical force on those in custody except in cases of escape or in cases of danger to a person’s physical safety.

On occasion guards force a youth face down to the ground.  This is a controversial method, and the guards will be allowed to use it only for three minutes with evaluation by a doctor within four hours on each occasion.

The Justice Department insisted the state take significant steps to fix the problems in the system so bad many inmates never receive any treatment or services that would help them adust to life out of custody.  The Department of Justice threatened to take over the entire state juvenile justice system unless the state did so.

The four facilities placed under federal supervision are the Lansing Residential Center and the Louis Gossett Jr. Residential Center in Lansing and two residences at Tyron Residential Center in Johnstown, New York.  Federal investigators had found that the staff routinely used physical force to discipline the youth at that the four facilities.  The force resulted in broken bones, shattered teeth, concussions and dozens of other serious injuries over a two-year period.

Governor Peterson had been trying to fix the problems in the system.  He introduced a bill last month that would allow a judge to sentence juveniles to the youth prisons only if the juveniles had been found guilty of a violent crime or a sex crime or were otherwise found to be a serious danger to themselves or to others.

The federal oversight plan will include two monitors jointly chosen by federal and state officials who will watch the implementation of the plan.  The monitors will make regular reports over the next two years to a federal judge, who then must approve the settlement before it goes into effect.  Funding for the improvements was included in the state budget just approved.  Those improvements include one full-time psychiatrist at each of the four facilities, five licensed psychologists and about a dozen nurse practitioners and social workers.

The changes in the settlement are similar to the suggestions made in the recommendations made by a state task force, which found recommended expanding mental health care and replacing most of the residential youth prisons with a system of smaller centers closer to where the incarcerated youths live.

An inmate in the Oklahoma County Jail has a good chance of dying.  In 2006, the Oklahoma County jail had a mortality rate higher per 100,000 inmates than Los Angeles County Jail, Cook County Illinois, among many others.  Three inmates have died there this year.  Fourteen inmates died in the jail in 2007 and 2008.

The U.S. Justice Department keeps track of the facilities with which it does business, including the business of housing federal inmates.  There is no federal jail in Oklahoma City, so the Justice Department contracted to place its inmates in the Oklahoma County Jail.  Until last year, that is, when a D.O.J.  report found so many serious deficiencies that the federal inmates were all moved out.  They were sent to the Grady County Jail, which was very happy to be paid the higher per-prisoner rate.

The D.O.J. report found high instances of violence between detainees, lax supervision of inmates, poor suicide prevention, and poor health care.  Any local criminal defense attorney can verify especially the latter: poor health care. Whenever one of my clients with a medical condition has to spend any time in the jail, either pretrial or post-trial, I cringe.  The greater the medical needs of an inmate, the less likely those needs will be met.  Send all the letters you want, communicate on a daily basis with the authorities as needed, it still may not be enough to get the attention of the medical personnel to get the right medication or treatment as needed.

The jail’s spin on all this?  “…[A] natural death is a part of life,” Mark Myers, spokesman of the Oklahoma County sheriff’s office said.  He said this year’s deaths have been from natural causes.  He said the “majority” of deaths from the previous two years have also been from natural causes.  He further said the jail calculates that .01 percent of the 44,000 inmates who come to the jail annually will die while in custody.  Many inmates are in poor health when they come to the jail, he correctly points out.  If it weren’t for the federal government’s study, such a statistical approach might make you think all those deaths were just statistical inevitable.  Are the inmates in Los Angeles or Chicago just that much healthier?

Jail administrator Major Jack Herron said a new company is overseeing the jail’s health care now, and about 10 additional staff and a full-time physician have been added in the last few months for inmate’s health.

My suggestion is that one check back in a year, and one will notice the same problems, and one will hear the same responses from the jail, something like, “we just added a new wing to really improve things, and we just gave most of the walls a nice new coat of pain, etc., etc.” This has been going on for years, so every time the latest study comes out, sudden improvements are announced just in time to respond to the latest criticisms.  Then things return to normal.

In May, 2007, Christopher Beckman died after a struggle with jail guards.  Two Oklahoma County jail guards, Mark Isch and Gavin Littlejohn, were indicted in February for that death.

The three who died this year did, indeed, die of natural causes.  The medical examiner made that determination, not the jail.