Friday, September 20, 2019

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V. Oklahoma Female Incarceration Rate: Why So High?

      Politicians and judges in Oklahoma do not want to have a reputation for being soft on crime. That Oklahoma has the highest incarceration rate of any state is testimony to the fact that politicians respond to their constituents' fears. Oklahoma's incarceration rate of 130 women is almost twice the national average of 67. Possible explanations for this high incarceration rate include public fear, treating non-violent crimes as harshly as violent crimes, and the underfunding of social programs for both men and women.

      The attitude of the people in Oklahoma toward incarcerated women is exemplified by this statement of the former head of the sociology department at the OU: “Oklahoma just has mean women.” This statement by a head of the sociology department at Oklahoma University expresses the problematic opinion that the kind of women in Oklahoma has more to do with Oklahoma's high incarceration rate than Oklahoma's crime policies, poverty levels, and drug problems. This is simply not true, however, as this paper has previously dispelled with the “meaner women” theory. A more plausible explanation is that, as University of Oklahoma Professor Susan Sharp said, Oklahoma incarcerates people for things that other states would not. Indeed, it has also been observed that more simple assaults are being charged as felonies. Thus, Oklahoma needs to change its attitude toward incarcerated women in order to effect change in the system.

      Oklahoma's attitude toward female offenders is not the only attitude that needs to change though. Oklahoma's million-dollar audit of its State Department of Corrections was premised on the assumption that “no systematic change is likely or practical in Based on this premise, the audit called for more maximum-security beds even through more than 50 percent of the crimes that result in incarceration in Oklahoma are nonviolent. Therefore, while an attitude change is needed toward female offenders in particular, a change in attitude toward the Department of Corrections as a whole is also necessary.

      As a state, Oklahoma seems to have overreacted to its fear of violent crime. The crime rate increased 14 percent from 1974 to 2001, while the incarceration rate went up 440 percent during the same time period. As Public Defender Robert Ravitz said, “[w]hen we react to the aberrational crime, all sentences go up, even for those whose criminal act is considered a routine crime, not aggravated or Thus, politicians caught wind of the public's fear and created an extremely harsh criminal system in Oklahoma.

      One way to measure exactly how harsh Oklahoma's criminal system has become is to look at the number of people on death row in the state. Oklahoma is number one with 3.2 people executed per one million population as opposed to the national average of 0.24 per one million population. This harshness is especially relevant to women because, as explored previously, “harsh on crime” includes harshness on the property and drug offenses that women are more likely to commit than men.

      The harshness of the criminal system in Oklahoma is a main reason for Oklahoma's high incarceration rate of women. One point of interest about Oklahoma incarceration rates is that while Oklahoma has the highest incarceration rate of women, it has the fifth highest incarceration rate of men. If men and women were committing the same crimes, it would seem logical that Oklahoma would be first for both. So, what are the differences in men and women's experiences with Oklahoma government and criminal justice system that creates this discrepancy?

      The answer to this question is that Oklahoma sentencing laws do not differentiate between the amounts of drugs possessed or sold. In 2009, 85 percent of all incarcerated women were incarcerated for property (burglary, larceny, forgery and fraud) or drug crimes (i.e., non-violent crimes), as compared to 73 percent of men. However, there is only a 3 percent difference between men and women incarcerated for property crimes. In contrast, 56 percent of women are incarcerated for drug crimes as compared to 47 percent of men. Thus, a difference in the way Oklahoma treats drug crimes would give rise to a discrepancy in incarceration rates sufficient to create the divide in placement in the national incarceration rates and should be exposed in part by comparing Oklahoma's drug statutes with other states.

      It is interesting to note that about equal percentages of women were incarcerated for distribution (21.8 percent) as possession (20.5 That means 20 percent of the incarcerated female population is subject to the five-year minimum associated with distribution of cocaine. Approximately the same percentage of male offenders has distribution as their controlling offense as well. Women involved in the distribution of drugs, however, are usually at the bottom of the distribution train and, therefore, do not have valuable information to exchange for reduced sentences. So, revisiting the example in the introduction, Holt probably did not even have enough information to give police to try to reduce her sentence from life to a lesser number of years. She probably would still be sentenced to more than the statutory minimum, but her case is not typical due to the quantity of drugs involved. For most other cases, the statutory minimum does have a huge impact on women if they are not dealing the same quantities as their male counterparts and yet subject to the same minimum sentence.

      The real difference between the drug crimes of men and women is the percentage that has possession as a controlling offense. For incarcerated women, possession is over 20 percent of the controlling offenses. In contrast, possession is the controlling offense for under 10 percent of men. This means that if there is a statutory difference that contributes to Oklahoma's female incarceration rate, it will be found in differences in the harshness of drug possession penalties.

      The largest drug abuse problems for incarcerated women in Oklahoma are by far marijuana and alcohol use. Of these women, 41.2 percent reported using THC several times a week or daily, 35.5 percent of women reported using alcohol daily or several times a week, 34.5 percent reported using Methamphetamine daily or several times a week, and 18.9 percent reported using crack several times a week or daily. Simple possession of any amount of marijuana gives an offender exposure up to one year, which is on the higher end of the sample states, since some impose just a fine for possession. Where Oklahoma differs from other states, however, is that a second offense involving any amount of marijuana is automatically a two-year minimum and a ten-year maximum.

      Unlike other states, Oklahoma does not break down punishments for distribution or possession by the quantity of drugs found by police. If Oklahoma made its system more flexible by decreasing the minimum sentence for small amounts of drugs, Oklahoma should see a drop in its incarceration rate for both men and women. Since women still possess and deal lower quantities of drugs, however, the rate of incarcerated women should drop more sharply than the men.

      The Oklahoma Academy suggested such a solution in their 2008 recommendations for Oklahoma's criminal justice system. In 1998, Oklahoma considered putting a sentencing matrix into place along with an 85 percent rule, but ended up adopting the 85 percent rule without the sentencing matrix. According to the Oklahoma Academy, this is like “nitro without glycerine; peanut butter without jelly, and ham without eggs. It just doesn't work as

      Another reason for the drastic increase of women as compared to men in the prison system could be due to the way that violent crimes (murder, robbery, and aggravated assault) that men are more likely to commit are treated as compared to nonviolent drug crimes. When looking at the Oklahoma statute, it is striking that Oklahoma gives similar exposure to those accused of first-degree rape (five years to death penalty) as to those caught distributing cocaine for the first time (five years to The harshest minimum punishment that sexual assault crimes carry is half as much as the second time caught distributing drugs (i.e. a minimum of ten Thus, the second nonviolent offense carries twice as heavy a minimum sentence as the most violent of sexual assaults. Since women are more likely to commit drug crimes than violent crimes, they receive as harsh or harsher incarceration sentences than men who commit violent crimes. This may contribute to Oklahoma's first place ranking in the incarceration rate of women while being fifth for men.

      In order to collect a sample to see if Oklahoma is odd in its treatment of drug crimes versus sexual assault, five states' statutes with the highest incarceration rates of women were compared against the five states' statutes with the lowest rate of incarcerated women. Wisconsin was also included as a state with an incarceration rate (40) slightly lower than the average of 67. The sale of cocaine was chosen as the drug crime to which sexual assault is compared to, because its national status as a drug of choice, and because it is considered “worse” than marijuana, but “better” than heroin. In the states with sentencing matrixes, the punishment associated with the highest amount of drugs was chosen to compare to the others. The results are shown in table form in Appendix 2 and graphically in Appendix 3.

      As shown in Appendix 3, other states have different discrepancies between how they punish drug versus violent crimes. While not having as much exposure for sexual assault (only up to 60 years instead of the death penalty), the Wisconsin statute has a lower exposure (up to 40 years) for the first distribution of drugs, even at the highest amount level. The states with the five lowest female incarceration rates, in order of lowest to highest incarceration rate, punish rape as follows: in Massachusetts up to a life sentence (bringing 28 grams into the state, up to 25 years ), in Rhode Island 10 years to life (selling more than one kilogram, 20 years to life ), in Maine up to 30 years (selling any amount, up to 10 years ), in New York up to 25 years (selling more than 57 grams, 15 to 25 years ), and in New Hampshire 10 to 20 years (selling more than 142 grams, up to 30 years ). The other four states with the highest female incarceration rates, in order of lowest to highest incarceration rate, punish rape as follows: in Idaho one year to life, in Arizona five and a quarter to fourteen years, in Louisiana up to twenty-five years.

      Unfortunately, there does not seem to be any correlation between the female incarceration rate and the way the state punishes rape as opposed to distribution of cocaine. State handling of these crimes was a proxy of how a state treats violent versus non-violent crime. What can be taken from Appendix 3 is that the states with the highest female incarceration rates all give a great deal of discretion to the sentencing entity with the exception of Arizona. None of the states with the highest female incarceration rates have any statutory controls based on how much cocaine is sold, while most of the lower states do. Three of the five states with the highest incarceration rates can sentence a person up to life in prison for a first conviction of cocaine distribution. In addition, distribution does not only mean the sale of cocaine, but includes all exchanges and sharing. The only state with a low incarceration rate of women that allows a possible life sentence is Rhode Island, but this state reserves the punishment for those caught distributing more than a kilogram of cocaine. The fact that Rhode Island's female incarceration rate remains low is consistent with the observation that while women are caught selling drugs at an equal rate as men, they usually deal lower quantities.

      Besides having a state government that may be hypersensitive to public fears about crime and harsh on nonviolent crimes, Oklahoma has a long history of underfunding alternatives to incarceration as well as services like welfare programs that would decrease the need for incarceration. Oklahoman women have a greater need for these services too, as 62.3 percent reported reliance on social assistance at the time of their arrest, 67 percent of incarcerated women have a moderate to high need for substance abuse treatment, and 69 percent (69 percent previously treated or currently exhibiting as opposed to 48 percent of men ) have been previously treated for mental health issues. Oklahoma's 1996 expenditures on social services ($16.04 per capita) ranked it thirty-eighth in the nation with the national average being $23.52 per capita. If Oklahoma brought its expenditures up to the national average, the study would expect that the female incarceration rate would decrease by 4 per 100,000. Oklahoma ranked twenty-seventh in 1997 for expenditures for mental health and substance abuse services ($4.89 per If it brought its expenditures up to $6.39 per capita (California's rate of expenditure), the female incarceration rate could be expected to drop by 12.5 per 100,000. Thus, much of the money that Oklahoma puts into the prison systems could be better used by funding programs to prevent the need for incarceration.

      Giving more money to programs, however, is arguably not enough. Lowering the incarceration rate by a total of 16.5 would still leave Oklahoma with the highest incarceration rate, as Idaho is second with an incarceration rate of 104. Also, a change in public policy would arguably do more. If Oklahomans stopped thinking of incarcerated women as just “mean women” and responded to reason instead of fear and emotion, not only would money then be spent on alternatives to incarceration and prevention, but the reform needed within the programs would be easier to achieve as well.

      Oklahoma must also learn to recognize the very real economic and human consequences of incarceration. Whenever the state talks about how much the state is spending, the public always hears about education and healthcare, but the fact is that the Department of Corrections is the second largest budgetary expense in Oklahoma, despite the fact that Oklahoma spends the least amount per person incarcerated of any state in the United States. Yet, providing treatment to the individuals who need it would cost less than incarceration and significantly reduce the human cost not just to the female offender, but to her children as well. Children have more problems with mental health, substance abuse, and school after their mothers are incarcerated. This continues the cycle of trouble with the law, which really hit home for one judge when he started sentencing the third generation of the same families. Oklahoma needs to re-weigh the need to punish offenders against the economic and human costs of punishment.

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Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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