Report recommends major changes to Tulsa’s criminal justice system

Agencies across Tulsa’s criminal justice system must make major changes to their current policies and practices in order to address the explosive population growth over the last few decades at the Tulsa County Jail, according to a new report from a national research and policy organization.

The Report to Tulsa County Stakeholders on Jail Reduction Strategies was completed in August by the New York-based nonprofit consulting firm Vera Institute of Justice after a year of interviews with officials and data analysis. It makes numerous recommendations for how to improve the criminal justice system in Tulsa.

The report obtained by The Frontier is scheduled to be officially presented to stakeholders next week.

The findings and recommendations in the report affirms with hard data what many in the criminal justice system and mental health system anecdotally have seen, said Mike Brose, executive director of Mental Health Association Oklahoma.

“I don’t think there’s a lot there that surprises us, but you need the data behind it,” Brose said. “A lot of times, when we’re doing real-time service for people, families, and individuals we see this, but the Vera Institute’s findings and recommendations are really supporting what we’ve been saying for a long time.”

The jail’s average daily population has grown by 383 percent since 1970, and that growth is not fueled solely by Tulsa-area population growth, as the per-capita incarceration rate increased by 200 percent during that time and 43 percent since the David L. Moss Criminal Justice Center was opened in 1999, the report states.

“The jail doesn’t simply hold more people,” the report states, “it holds a significantly greater share of the population than it once did.”

The primary driver of that growth — increases in pretrial detention, mostly because of local policies and practices.

In 2011, Tulsa’s jail incarceration rate surpassed the national average. In 2014, Tulsa County’s pretrial detention rate was 18 percent higher than the state average, 83 percent higher than the national average and 4.5 times higher than it was in 1990.

“This shows that the population growth and increased use of the local jail is not simply a matter of the expansion of the correctional system in Oklahoma generally,” the report concludes, “but reflects mostly local decisions and policies that result in incarcerating a greater share of people in jail pretrial than the county once did.”

The report makes six overarching recommendations:

• Reduce jail admissions and lengths of stay at the jail for lower-level charges.
• Reduce unnecessary pretrial incarceration by creating a pretrial release process that is individualized and not based on financial bail.
• Reduce lengths of stay by expediting simpler cases and identifying and reducing unnecessary case processing delays for more complex cases.
• Ensure that alternatives to incarceration and diversion programs are accessible during the earliest stages of a case.
• Reduce admissions for failures to pay and reduce applications to accelerate and revoke.
• Expand oversight and accountability mechanisms for the local justice system through an inter-agency criminal justice coordinating council.

Each includes several more specific recommendations as well as ways to begin implementation of those recommendations.

The report also contained data on those who were booked into jail, who arrested them, what they were booked in for and how long they stayed.

Almost half of all admissions to the jail had a misdemeanor or municipal offense as the most serious, or “top” charge, the report found, the average length of stay was 20 days, the most common top charge of those booked in was first time drug possession and five of the top 15 most common top charges were for probation failures or failure to pay court costs, the report states. Felony admissions are driven mostly by nonviolent crimes related to substance abuse and inability to pay costs fines and fees, according to the report.

The report also found significant disparities in the race of those booked into the jail.

Relative to population, black people were overly represented in the jail and have a longer than average stay in custody, the report states. Though that disparity existed for all offense classes and types, the largest disparities in jail admissions were for the lowest-level charges — municipal offenses, which are enforced by the Tulsa Police Department. Black women were booked in at 3.5 times the rate as white women, and black men were booked in at 3.8 times the rate of white men on municipal charges, the report states.

The approval by voters in November of State Question 780, which lowered virtually all felony drug possession cases to a misdemeanor offense, also creates uncertainty and possible additional burdens for the jail, the report states, since those offenses may require jail sentencing instead of a prison sentence.

“Until we can find a way to fix that underlying problem (lack of treatment options), I think to a certain extent we’re still going to deal with the problems we’re dealing with now and trying to rectify,” said Tulsa County Sheriff Vic Regalado. “The criminal justice system is not equipped to deal with the addiction problem, so until we implement something that does deal with that and there’s a treatment program, you’re still going to see those people offending.”

However, Regalado said he too believed the Vera report’s recommendations are a good starting point for policy-makers in the criminal justice system to come together to find solutions. And though implementation of the recommendations would likely help lower the jail population, it is unclear how large the effect would be, he said.

“I think we all want to find a way to decrease the jail population and find alternative avenues and pathways to deal with people’s criminal charges without incarceration,” Regalado said. “I think it’s a good first step.”

Melissa Baldwin, criminal justice reform consultant for Mental Health Association Oklahoma, said the responses to the report by stakeholders in the criminal justice system have been mostly positive so far.

“Everyone locally, is in agreement that a lot of these structural changes need to be made and there’s buy-in from different agencies at all levels,” Baldwin said. “Of course, there are going to be differences of opinions and things like that, but overall what is prevailing is this general sense of readiness and willingness to address some of these really complex issues.”

Though changes won’t be easy, Brose said, there is enough momentum for change among criminal justice stakeholders to make him “cautiously optimistic.”

“Systems have trouble changing themselves,” Brose said. “One system can’t change unless another system that butts up against it changes. The court system can’t change unless the DA makes some adjustment. Law enforcement can’t change unless what happens at booking changes, for example. All of these things interact, that’s why change is so difficult. But we’ve got so many people talking about it, we’ve got a shot at it.”

The study by Vera was paid for by the George Kaiser Family Foundation, the Tulsa Board of County Commissioners, the Tulsa Regional Chamber of Commerce, the Oklahoma Department of Corrections and the Anne and Henry Zarrow Foundation.

Reducing stays for lower-level charges

Lack of jail alternatives in Tulsa, the inability of Tulsa police officers to issue non-municipal misdemeanor citations and a lack of understanding about the patterns driving “high utilizers” to be repeatedly booked in is creating an “overuse” of the jail for low-level offenders who probably don’t belong in jail, the Vera report states.

In addition to taking up jail space and increasing the cost to the county to incarcerate them, even a short jail stay for a minor infraction can impact an individual’s ability to stay employed and keep them out of trouble, the report states.

“The overuse of jail incarceration is thus not only a matter of fairness and fiscal prudence; it may actually contribute to bad public safety outcomes,” the report states. A more sparing use of the jail and early diversions would “help Tulsa focus its criminal justice resources where they are most needed.”

The Vera Institute recommended that the Tulsa Police Department use citations in place of arrest and booking for appropriate misdemeanor charges. Currently, the department only issues citations for municipal offenses for municipal court, and there is no mechanism to issue misdemeanor citations for district court.

The Tulsa County District Attorney’s Office is already collaborating with the department to come up with a misdemeanor citation process and what misdemeanor crimes citations could be issued for, according to the report.

Once a misdemeanor citation program is in place, Vera also recommended that police officials encourage officers to use citations when appropriate, rather than arrest.

“The decision to arrest someone versus some other police action may be influenced by internal performance and evaluation metrics,” the report states. “In order to reduce arrests and jail bookings for citable offenses, TPD should review internal practices and revise policies that incentivize arrest over citation.”

Vera also recommended that an intermediate step between citation and arrest be implemented — a book and release system that has been implemented by other cities.

An increased use of citations, however, would likely cause concern that a person may not appear for their court date. Using an alert system — similar to the one currently used on a limited basis by the Tulsa County Public Defender’s Office, known as CourtBot — would help reduce the chance of people failing to appear for court, the report states. Such a system should be managed by the District Court, rather than the public defender’s office, however.

Another recommendation to reduce the number of people in jail on low-level offenses is to examine and address the causes of racial disparity found in municipal offense bookings, according to Vera. Tulsa isn’t unique in the racial disparity of jail bookings, the report states, and there are many reasons for it, such as structural inequality in education and opportunity. Addressing the issue would also help improve confidence in Tulsa’s criminal justice system.

“This should not be an exercise in finger-pointing,” the report cautions, “but an opportunity for collaborative problem-solving.”

Finally, to address the issue of low-level offenders the report recommends forming an interdisciplinary, interagency team to identify and develop targeted responses to “high utilizers” of the jail, most of whom are repeatedly booked in on low-level charges and many of which likely have mental illness, substance abuse issues, or both.

Changing the pretrial release system

The majority of the Tulsa County Jail’s population are people who have not yet been convicted and are awaiting disposition on state misdemeanors or felonies.

“Financial bond is the default pretrial release decision-maker,” the report states, and bond amounts are determined by a bond schedule set by the district court. Bond is also calculated cumulatively based on all charges, meaning that the more charges someone is booked in on, the higher and harder to pay their bond will be.

In addition, individuals on average are not assigned an attorney until after their second video court appearance, Vera’s report states, meaning there is usually no attorney present to argue for a reduced bond or a “personal recognizance” bond (which means they do not have to pay a cash bond to be released).

Both personal recognizance and use of Tulsa County Court Services’ Pretrial Release Program are “underutilized and inconsistently granted,” Vera states.

The heavy reliance on cash bonds may contribute to the overrepresentation of black people and women, who account for about 25 percent of admissions, in the jail, the report states.

Vera’s assessment concludes that Tulsa County relies too heavily on cash bonds, and should move to a more individualized assessment when setting bond.

“Oklahoma law requires that the pretrial release decision be an individualized assessment of a defendant, taking into account risk of flight, risk to the community, and financial means,” the report states. “The primacy of cash bond in Tulsa, however, has created a system whereby judicial decision-making regarding public safety risk, flight risk, and ability to pay is abrogated by the bail schedule.”

To make the system more individualized and posting bond easier, Vera recommended implementing four short-term strategies and three long term strategies.

First, end the practice of calculating bond cumulatively by charge and set bond on the top offense a person is charged with, the report advises. Cumulative bond — which is not required by state law, but is common practice — could be done away with by a standing order of the district court, Vera states.

The report also recommends that the court allow individuals to post “partially-secured” bonds, which would mean that the individual posts 10 percent of their bond amount with the court, rather than a bail bondsman. After their case is finished, the individual would have the money returned to them or the money would be put toward court costs, fines, and fees. If they fail to show up for court, the individual is liable for the entire amount of the bond. It would be an unusual practice, Vera stated, but it is not disallowed by state law.

Assigning defense attorneys to an individual earlier, shifting from a “charge-based” to a “risk-based” early release system and improving the consistency and timing of releasing people for supervision by Tulsa County Court Services  are also an important steps, Vera states.

Long term, the organization recommended educating stakeholders in the criminal justice system about risk-based pretrial release decision making, use a risk-assessment tool that has been validated on Tulsa County’s population and expand non-financial pretrial release options.

“Implementing an evidence-based risk tool to inform pretrial decision-making results has demonstrated both improved public safety and reduced jail populations,” the report states. “Such a reorientation, however, is challenging, and will require a significant change for local justice system stakeholders.”

Expedite the simple, reduce delays in the complex

Though the average length of stay at the jail is one day or less, those who stay longer than a week make up a greater share of the jail’s average daily population, the report states. The vast majority of the “long-stayers” were there 60 or more days, and are usually in jail on felony charges.

The most frequent felony charge found by Vera that a person is booked in on is first offense drug possession, which came with an average stay of 33 days.

Vera found that there currently is no way to identify and fasttrack simple cases and that there are a high number of continuances, or delays, in cases but no consensus on why. One reason for the high number of delays, Vera speculated, was high caseloads at the public defender’s and district attorney’s offices.

Cases that require the defendant to undergo a mental competency evaluation have the longest disposition times, Vera found, and private attorneys may sometimes delay cases until they get paid.

Vera recommended having attorneys present at arraignments to provide an opportunity to speed up case resolution, that the court do data analysis to see where cases are slowing down and why, and to target “long-stayers” for possible reductions in case processing times.

In addition, the organization recommended a strategy that had been tried before at the Tulsa County District Court, but ultimately did not work — an “early resolution” docket for simpler cases, such as those likely to not end with jail or prison time for the defendant. The first attempt, Vera states, had little in the way of structure or commitment, and the organization recommended the court examine the reasons it failed, making changes where necessary and trying again.

Accessing jail alternatives and diversion

It’s no secret that for those who cannot afford to pay and who are not in the criminal justice system, there is a dearth of community behavioral health and substance use treatment resources in Tulsa County.

And for those who are in the criminal justice system and in need of substance abuse treatment, the options are limited and costly.

The substance abuse treatment system available to those in the criminal justice system takes a one-size-fits-all approach to those with substance abuse issues assigned to their docket, Vera states, and there is no wide spectrum of individualized treatment options based on a person’s needs.

Options such as drug court often come with costs attached that often discourage attorneys from recommending indigent clients to participate, Vera states. And while drug courts may help divert people from prison, they do not divert people from jail incarceration.

In addition, people who might be helped by drug court can spend months in jail before being entered into the program since the process of entering the program usually doesn’t begin until after a preliminary hearing, the report states.

Vera recommended that Tulsa County create a new process to more quickly refer and screen eligible defendants earlier in the process, invest in a continuum of diversion programming, and ensure Tulsa’s sobering center currently under development meets the needs of those being booked into jail.

Failure to Pay

One of the most common paths to jail are individuals who have violated probation or failed to pay court costs. When that happens, a prosecutor may submit to the court an application to revoke or accelerate the individual’s deferred or suspended sentence or probation. Those individuals held on applications to revoke or accelerate often have longer stays than other people at the Tulsa County Jail, the Vera report states.

Vera found that 1,163 people were admitted to the Tulsa County Jail in a year with a top charge of failure to pay court costs, and it was the fourth most common reason for admission overall and third most common for women.

For many who go through the legal system, the array of fines, fees, and costs can sometimes be dizzying.

“People who incur fines and fees often lack complete information about the entirety of their legal debt and do not know what to prioritize,” the Vera report states. “Different fees and costs need to be paid in different locations.”

Vera also found that, with a few exceptions, indigency determinations are not conducted at Tulsa County District Court until after fines and fees have been assessed, and usually not until after a person has missed a payment and been found in noncompliance.

The organization recommended conducting indigency determinations early in the court process, and those determinations could be combined with applications for public defender representation.

“Early determination of indigency can ensure that people are not jailed simply for being poor,” the report states.

The group also recommended developing alternatives to jail for applications to revoke or accelerate for failure to pay costs and fees, and tailoring district attorney probation fees to meet an individual’s ability to pay early in the process.

Finally, the group recommends giving Tulsa police officers in the field the ability to determine what a warrant is for, and in cases where the warrant is for failure to pay issuing a summons to appear at the District Court’s cost docket to resolve the matter, rather than taking the person to jail.

Expanding Oversight and Accountability

Though Vera found that agencies and organizations that are part of the county’s criminal justice system have formed effective collaborative efforts in the past, such as the Policy Council and the Tulsa County Criminal Justice Authority, there is currently no collaborative body with oversight of the local justice system and jail as a whole.

While some agencies do collect data about the jail and share it, there is no collaborative, data-informed decision-making about how the jail is used, Vera states, and the collection of racial and ethnic data is not consistent across agencies, making racial disparities difficult to analyze and address.

In short, there is no collaborative effort to monitor or review what policies and practices are driving jail population growth and no shared accountability, the report concludes.

“There is no place for creating a shared vision for the criminal justice system in Tulsa and directing the coordinated implementation of strategies that will help achieve that vision,” the report states. “There is also no shared accountability for results, which can lead to finger-pointing when new approaches don’t work out as planned, and inhibits the opportunity to learn from failure and build on and sustain successes.”

Vera recommended first hiring a criminal justice coordinator to coordinate policy reform work across the system, then establishing an inter-agency criminal justice coordinating council to research, monitor and oversee reforms. The committee must be a public one, Vera states, to ensure transparency and public accountability.

Tulsa County Commissioner Ron Peters said he supports the formation of such a committee to create a united front in implementing the report’s other recommendations.

“I told them I would certainly support that effort,” Peters said. “There’s no one group or individual who can make this happen, it’s going to take a united effort.”

Improved data collection by agencies could be done through partnership with the criminal justice coordination council, which would be able to apply for grants and help bring resources in, the report states.

So far, Baldwin said, there is no timeline to form the committee. Oklahoma City, which also had the Vera Institute evaluate its system more than a year ago only recently formed a similar committee, Baldwin said.

“It’s definitely a process,” Baldwin said. “It’s not something that’s going to happen overnight.”

The report also recommends improving and systematizing agency data collection on race to better understand the disparities that exist and to create strategies to overcome those disparities.

“It is likely that these disparities exist throughout the decision points of the local justice system—from arrest to sentencing,” the report states. “Addressing these disparities is hard, and it’s critical that the data used to evaluate the problem and identify potential strategies to alleviate it are accurate, useful, and trusted. Anything less than shared acceptance by the public and local justice system stakeholders about the magnitude of the problem will hinder a substantive discussion of the issues.”