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By Eric Allen Kauk*
Oklahoma recently commuted the sentences of more than 500 inmates. This mass commutation followed a state legislature reclassification of low-level drug possession and property crimes. The legislature announced that the state will apply these changes retroactively. This state action may seem like a huge win in a society thirsty for criminal justice reform, but we should put the parades and confetti on hold until we see how these individuals are supported after release. A commutation reduces the sentence, but it does not absolve societal peceptions of guilt or relieve the collateral consequences of a conviction. After release, convicted individuals face daunting challenges on the journey toward redemption.
In many states, incarceration for drug-related offenses includes mental health evaluation and drug treatment measures intended to serve a rehabilitative function. Mental health and addiction treatment services improve post-incarceration outcomes. Commuting sentences for low-level drug possession and property crimes might save the state money and make politicians feel good in the short term. But releasing inmates without providing support for their individual mental health and drug treatment needs can directly lead to costly and heartbreaking reincarceration.
Additionally, successful reintegration of convicted individuals back into society requires many types of crucial support services. When an individual is released from prison, reacclimating to the most basic functions of life might not be easy. The U.S. Commission on Civil Rights released a report in June 2019 that outlines the collateral consequences of convictions. For example, many apartment communities and neighborhood associations have policies that restrict renting to formerly incarcerated individuals, which makes finding a place to live a challenge. Most state licensing boards restrict myriad professional licenses from individuals that have been convicted, which complicates starting a professional career. Individuals who have been convicted of a drug-related offense are restricted from federal financial aid programs, so going back to school is out of the question for most. And, in a competitive job market, having a criminal record makes finding even entry-level employment an intimidating challenge. An individual that discloses a prior conviction too early in the interview process risks being eliminated from consideration while there are many other applicants in the hiring pool. However, telling the employer too late in the hiring process can result in an applicant being dismissed because they are perceived to have not been “forthright” with their criminal history. Individuals whose sentences are commuted face all these challenges, as well as added skepticism from those that disagree with the concept of mass commutation on principle.
Wisely, Oklahoma embedded a simplified path to expungement within their commutation legislation to help those with old drug possession and low-level property convictions get a second chance at a normal life free from the “scarlet letter” that often comes with a prior conviction. However, throughout the United States, overzealous law enforcement, abuses of prosecutorial discretion, “cake or death” plea deals, extreme minimum mandatory sentences, and the overcriminalization of drug possession have led to a culture of incarceration where, as of October 2019, the FBI reports more than 77 million American adults (1 in 3) have a criminal arrest and fingerprint record.
Without question, Oklahoma’s reclassification of low-level drug possession and property crimes represents a strong strike in the battle against antiquated retributive sentences. Recently, other states like California, Utah, Connecticut, and Alaska have also reevaluated their stance on sentencing issues by passing laws that apply new standards informed by modern values. However, to ensure success and systemic change, mass commutations must be paired with post-release mental health and addiction support services, as well as life skills training, career counseling and re-employment services.
Many believe that a society can be judged by how it treats its incarcerated, but I propose that the best version of the United States grabs hold of the hands that are reaching for redemption. In order to accomplish meaningful change, we must extend support and resources to convicted individuals after their release. Oklahoma shines just a bit brighter today, but celebration of mass commutations is short-sighted if we fail to prevent recidivism. Commuting sentences is a noble first step, but it is only one step on a long road.
*Eric Allen Kauk is a fully restored individual, is in his third year at Stetson University College of Law. He can be reached at ekauk@law.stetson.edu.