Oklahoma Poised to Follow the Lead Of New Mexico’s Failed Bail Policies

As Senate Bill 252 makes it way to the House Floor, the Oklahoma legislature is set to create chaos in the criminal justice system in Oklahoma should S.B. 252 pass.  This legislation reforms how bail is regulated and performs Oklahoma.  At first glance, we honestly thought that there was no way the legislature would be duped into such a concept, given the disaster of a bail reform in New Mexico and other states.  In fact, New Mexico’s failed system prompted former Governor Martinez to record a video cautioning other states to go in this direction – while she was Governor.

The first thing to know is that detention without bail is limited in Oklahoma.  This is typical of many jurisdictions.  There is a right to bail by sufficient sureties, except in a narrow class of exceptions.  In Oklahoma, those narrow exceptions are capitol cases, life in prison cases, three or more time felons, violent felons, and those facing a drug felony sentence of more than 10 years.  Otherwise, everyone else charged with a criminal offense has a right to have bail set in Oklahoma by a judge.  And, right now, if a prosecutor does not seek detention, then a judge must set a bail.  If the defendants post bail, they get out, if they don’t post bail, they stay in.

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Under the new system created by SB 252, only those who are eligible for preventative detention, and for whom a prosecutor proves a danger to the community by clear and convincing evidence, will remain in jail pending trial.  Everyone else is getting out.  Page 3, line 2-4 is where this language is inserted.  This means an unposted bond, even if determined to be appropriate, cannot serve to detain anyone.  This creates a right to an affordable bail in Oklahoma, rather than the Eighth Amendment standard contained in the U.S. Supreme Court seminal bail opinion Stack v. Boyle, which requires bail to be set at an amount reasonably calculated to assure the defendant’s appearance in court as required but no higher.

So, what are prosecutors going to have to do when the Eighth Amendment has been upended in Oklahoma?  Seek detention in all eligible cases, knowing everyone else is walking, and then everyone that they can’t prove a danger is then also walking.  This will require putting on a bail mini-trial to arrive at proof by clear and convincing evidence, otherwise everyone is getting out on a get out of jail free card, or at least on a get out of jail based on how much money you have on you at the time card. 

Yet, this legislation does not, similarly to New Mexico’s failed policies, provide the funding necessary for District Attorneys to handle the load.  Plus, defendants will have to be represented at such hearings, which will be another cost.  Example: today a prosecutor asks for a $100,000 bond on a violent felony offense.  Defendant argues for less, Judge declines.  Bond set at $100,000.  Defendant does not make the $100,000, defendant remains in jail.  Under new system, if a prosecutor seeks $100,000 or any number, the defendant is for sure getting out because a bail that is not excessive may detain a person in jail.  The measure of security is what they got on them—not what is “sufficient sureties” to guarantee safety and appearance.  Thus, a prosecutor will have to let them get a get out of jail free card, or file a motion for preventative detention and put on a mini-trial and prove it by clear and convincing evidence.  This is going to put extreme resource pressure on the system.

This legislation will also virtually wipe-off the map private bail agents, who, according to national research are the true long-arms of the law when a defendant flees a state court.  The language disallowing a constitutionally imposed bond that goes unposted to detain in this legislation is nearly identical to language in the Washington, D.C. system which generally means that bail will not be used except in the rarest of cases if at all.  Similarly, under this language in the New Jersey system, only 47 monetary bonds were set in all of 2017.  Today, misdemeanor and many felony defendants would escape justice but for bounty hunters bringing them back to court.  Under this bill, the burden would fall on law enforcement to chase absconded suspects and bring justice to victims of crime. 

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Legislatures around the country have been rejecting the movement to create a right to an affordable bail and to expand the use of preventative detention all winter and spring because these programs fail to address the real concerns.  Instead, we point to other solutions in our Fourth Generation of Bail Reform.

This legislation, while perhaps well intentioned, is so fatally flawed in concept that it is going to create huge problems in Oklahoma, problems difficult to unwind.  In Alaska, Senator Mia Costello, who voted for similar bail reform measures, championed legislation to roll back bail reform in 2018.

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Prosecutors are going to be powerless—everyone today who is held on a bond that they do not post is immediately going to be sprung from the jail doors.  Instead, we think a more thoughtful and reasonable approach is in order.