DA holds firm on stance that parole board is violating law
BY CARY ASPINWALL World Staff Writer
Sunday, August 12, 2012
8/12/12 at 7:54 AM
Oklahoma County District Attorney David Prater is not backing down from his stance that the Pardon and Parole Board has violated state law by considering any type of clemency for offenders serving mandatory "85 percent" sentences.
"The legislature can restrict the powers of the board by statute, even if they can't do the same for the governor," Prater said. "It's ridiculous to say otherwise. If you look at the plain language of the statute, what it says is: They're to serve 85 percent of their judicially imposed sentence."
Earlier this week, Prater released a nine-page letter outlining what he said are deceptive practices by the board to place inmates on a "Pre-Docket Investigation" list without proper advance notice under Oklahoma's Open Meetings Act.
He listed 50 inmates whose parole hearings he said were invalid because the board did not give enough public notice under the Open Meeting Act. He also alleged that inmates convicted of 85-percent crimes were getting parole consideration in violation of state law.
State law prohibits convicts of certain crimes - including murder, manslaughter, rape, shooting with intent to kill, child abuse - from parole eligibility until they have served at least 85 percent of their court sentence.
But state officials are now debating whether the 85-percent rule can prevent those inmates from receiving recommendation for a commuted sentence by the board.
Pardon and Parole Board officials maintain they've never violated the law and have not granted parole to anyone serving an 85-percent sentence - the board has only recommended commutation in a few cases of 85-percent crimes.
Commutation - the governor's ability to shorten or modify prison sentences - is a separate power under the constitution that is not subject to the legislation that created the 85-percent rule, they said.
Terry Jenks, Pardon and Parole Board executive director, said they were investigating Prater's list of inmates, but a preliminary review showed only five out of the 50 were serving 85-percent sentences. Any of those would have been recommended for commutation, not parole, he said.
The board and Gov. Mary Fallin said they will ask Attorney General Scott Pruitt to issue an opinion regarding the issue, "to make sure the integrity of the parole process is unimpeachable," Fallin's spokesman, Alex Weintz, said.
"With that said, the governor's office interprets the Constitution as clearly giving the governor the power to grant commutations to all offenders, including on '85 percent' cases," Weintz said.
The governor has the sole power to grant pardons and commutations, provided an offender has received a majority approval vote by the Pardon and Parole Board, Weintz said.
Oklahoma's constitution clearly spells out that parole and commutation are entirely separate powers of the executive branch, said Randall Coyne, who teaches criminal and constitutional law at the University of Oklahoma College of Law.
"The 85 percent rule cannot trump the constitution," Coyne said. "And the fact that the constitution mentions both seems to suggest that they are different things."
For instance, he said, why would the board be allowed to consider commutations for offenders serving life, life without parole or death sentences - which it has for decades - but not offenders serving 85-percent sentences for lesser crimes?
The governor's power of commutation exists "because the courts and jurors, more frequently than we like to admit, are just flat wrong," Coyne said.
Legal wrangling may have omitted evidence from consideration, witnesses can give false testimony or identification - commutation exists in case someone has been convicted or sentenced in error, he said.
Oklahoma has sentenced to death 10 inmates who were later exonerated, records show.
"We do get it wrong," Coyne said.
The only way that powers outlined in the constitution can be altered is if the state's residents vote to do so by State Question - not by any action of the Legislature, he said.
Pruitt announced Friday he was opening his own investigation into allegations that the board violated state laws.
Pruitt said he would reserve comment on the legal differences between commutation and parole until he issues a formal opinion. But Oklahomans support the truth in sentencing laws that were passed starting in 1999, he said.
"It cannot be lost that these are some of the most heinous crimes we're looking at," Pruitt said. "And it's the desire of the people of Oklahoma to see them serve what they've received."
Prater said he is certain the Legislature chose "purposeful" wording for the 85-percent sentencing laws to ensure that anyone convicted would serve at least 85 percent before they could be considered for clemency by the Pardon and Parole Board.
"You have to look at 'What is the intent of the law?'" he said. "It would be absurd to think that the Legislature wouldn't have written the 85-percent law to apply to commutations."
He researched several months of Pardon and Parole Board agendas and did not find "commutation dockets" clearly listed on any of them, he said.
"The agendas are not specific enough that the average citizen could understand what actions the board will be voting on during each portion of the meeting," he said.
Prater also alleges that the board is violating its own administrative code and withholding "objection letters" from district attorneys in cases they had recommended to the governor.
He said his office will continue to investigate and weigh the option of filing criminal charges against board members for Open Meeting Act violations.
What Oklahoma's Constitution says
Article VI, Section 10:
The Governor shall have the power to grant, after conviction and after favorable recommendation by a majority vote of the said Board, commutations, pardons and paroles for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as may be prescribed by law. Provided, the Governor shall not have the power to grant paroles if a convict has been sentenced to death or sentenced to life imprisonment without parole.
Clemency: How it works
Pardon and Parole Board's administrative code defines parole as "the conditional release of an offender who has served part of the term for which they were sentenced to prison, provided that such may be revoked if the parolee fails to observe the conditions of parole."
The next Pardon and Parole Board meeting is scheduled for Tuesday-Friday at Hillside Community Corrections Center in Oklahoma City, where members will review the cases of nearly 600 offenders. Copies of the parole docket are posted on the Internet a few weeks before the meeting at tulsaworld.com/paroleboard
There are multiple dockets on the website, including those for prisoners seeking medical parole and a "stage II" docket for violent offenders. Offenders being considered for commutation, the shortening or modifying of a sentence, will eventually appear on one of the supplemental dockets for a "commutation hearing."
Each case takes months of review by case workers and enormous prep work on the part of the parole board members and administration, including hundreds of letters and pages of documents that they must read and consider.
Then there are three to four days of public meetings each month, interviewing inmates via video and listening to district attorneys and victims' protests, along with pleas for mercy from inmates' families.
In the end, all cases recommended for parole must go to Gov. Mary Fallin, who has final say.
Oklahoma remains the only state where the governor has final say in all types of clemency. From February 2011 through June of this year, Fallin approved 51 percent of paroles recommended by the board.
In November, voters will decide the fate of State Question 762, which, if approved, would remove the governor from the parole process for nonviolent offenders. Paroles of violent offenders would still require the governor's approval. Fallin has said she supports the measure.
A study released in 2011 by the Northpointe Institute of Public Management asserted that only 11 percent of Oklahoma inmates eligible for parole get approved for release, contributing to near-capacity prisons and costing taxpayers an average of $80 million per year.
Oklahoma statutes (§21-13.1.) mandate that anyone convicted of the following crimes "shall be required to serve not less than 85 percent of any sentence of imprisonment imposed by the judicial system prior to becoming eligible for consideration for parole."
1. First-degree murder
2. Second-degree murder
3. Manslaughter in the first degree
4. Poisoning with intent to kill
5. Shooting with intent to kill, use of a vehicle to facilitate use of a firearm, crossbow or other weapon, assault, battery, or assault and battery with a deadly weapon or by other means likely to produce death or great bodily harm
6. Assault with intent to kill
7. Conjoint robbery
8. Robbery with a dangerous weapon
9. First-degree robbery
10. First-degree rape
11. First-degree arson
12. First-degree burglary
14. Any crime against a child
15. Forcible sodomy
16. Child pornography
17. Child prostitution
18. Lewd molestation
19. Abuse of a vulnerable adult
20. Aggravated trafficking
21. Aggravated assault and battery upon any person defending another person from assault and battery
Oklahoma Pardon and Parole Board members
Richard L. Dugger, Oklahoma City: Former district attorney for the second judicial district between 1972 and 1988 and from 1991 to 2002. He also worked as an assistant district attorney, as a private-practice attorney and two years as executive director of the District Attorneys Council. Appointed to the board in 2004 by the Court of Criminal Appeals.
Lynnell Harkins, Midwest City: Oklahoma City attorney, former special judge in Oklahoma County, served as an attorney for the Oklahoma Court of Criminal Appeals and former director of personnel service for Oklahoma City Public Schools. Appointed in 2004 by the Oklahoma Supreme Court.
Currie Ballard, Langston: Former historian for Langston University and past member of the Oklahoma Human Rights Commission. He was appointed in early March by Gov. Mary Fallin but previously served from 1999 to 2003.
Marc Dreyer, Tulsa: The senior pastor of Memorial Baptist Church since 1993. He was an agent for the federal Drug Enforcement Administration from 1966 to 1977. Appointed in early March by Fallin and previously served nearly nine months, filling an unexpired term under former Gov. Frank Keating.
David Moore, Edmond: Former vice president of operations of Avalon Correctional Services. He previously worked for the Oklahoma Department of Corrections and the Department of Human Services. He is a former Secret Service agent. He was appointed in early March by Fallin.
Original Print Headline: DA continues with board probe
Cary Aspinwall 918-581-8477