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Old crimes in the new era of Oklahoma reform

April 27, 2020 by G.W. Schulz

Many could already apply to have their criminal records expunged without knowing it

The Sooner State’s rate of incarceration was an eye-popping 80 percent higher than the rest of the nation in 2014, and an estimated one of every 12 people in Oklahoma is a convicted felon. As a result, Oklahomans are more likely to have criminal records that serve as barriers to re-entering public life than people in other states. So when voters in Oklahoma four years ago began passing a series of criminal-justice reform laws, the message was clear: the grim statistics were no longer sustainable for both taxpayers and convicts and their loved ones.

Through a first ballot measure, voters chose to reclassify simple drug possessions as misdemeanors in Oklahoma. Then two years later came the passage of a sweeping second measure now considered to be one of the most progressive medical cannabis laws in the nation. Elected officials in Oklahoma went even further last year by making these efforts retroactive and expanding the scope of crimes that could be expunged.

Suddenly, tens of thousands of Oklahomans became newly eligible to expunge past felony and misdemeanor convictions that had never been expungeable before.

“When an expungement order is in place,” according to the Oklahoma Bar Association, “the [convict] cannot be required by employers, educational institutions, state or local government agencies, or officials to ‘disclose any information contained in sealed records’ in an interview or job application.”

As early as the 1960s, studies had begun to show that “the use of arrest records by prospective employers was widespread, and the consequences of a person having been arrested, even if the charges were subsequently dismissed, were severe.”

Today, here are the lesser-known categories of people eligible for having their criminal convictions expunged in Oklahoma beyond mere nonviolent cannabis convictions:

  • Your conviction was reversed and dismissed by an appeals court, or prosecutors dismissed the charges after an appeals court reversed the conviction
  • You were declared innocent through the use of DNA evidence
  • You received a pardon from the governor of Oklahoma
  • You were arrested but prosecutors elected not to ultimately file charges
  • You were arrested but the charges were ultimately dismissed by a judge
  • You were arrested for a misdemeanor (or certain categories of nonviolent felonies) and successfully completed a deferred judgment or delayed sentence (e.g. probation)
  • You were accused of crimes committed by someone who stole your identity

What many people in Oklahoma don’t know is that expungement laws in the Sooner State trace their origins all the way back to 1987, when a colorful Oklahoma City Attorney named James Linn was acquitted of criminal charges, but was later denied an attempt to have the records expunged.

During the 1970s, Linn was one of eight people accused in courts stretching from Oklahoma to New York of dozens of charges of stock fraud, conspiracy, and the filing of false securities documents, among other things.

He’d been a larger-than-life attorney in the Oklahoma City area known for captivating juries and representing celebrity clients as diverse as the rock star David Bowie and the controversial longtime president of the Philippines and his equally controversial wife, Ferdinand and Imelda Marcos. Linn was ultimately acquitted of each of the nine counts he faced in the Wall Street prosecution, but a court in Oklahoma ruled against his attempt to have his record expunged.

“In acquitting, the jury found, in effect, only that the government had not proven Linn’s guilt beyond a reasonable doubt,” an appeals court said at the time agreeing with the Oklahoma ruling. “Linn argues on appeal that the government’s retention of his arrest records is an invasion of his right of privacy. … [However,] there is no demonstrated invasion of privacy which overrides the government’s justification in keeping the records.”

While Linn lost his crusade for expungement on appeal, his zeal for reform left a lasting impression.

The movement for expungements in Oklahoma began to accelerate rapidly during the 1990s and into the turn of the century, after which Title 22 of the Oklahoma Statutes was amended 10 times to expand the number of people eligible for expungements. Prior to the 2000’s, expungements were uncommon nationally and largely restricted to people whose guilt had not been admitted or proven.

An Oklahoma study conducted after 2000 showed that more than half of expungements were sought where convicts had been in prison or on probation or otherwise had their sentences suspended for misdemeanors and nonviolent felonies.

“An individual with a criminal record may be unable to vote, serve on a jury, purchase a firearm, travel abroad, obtain a professional license, finance an education, and access public housing,” said Alana Rosen, a Texas Tech law professor, in a study of expungements published last year. “ … Expungement legislation gives individuals with previous convictions a fresh start and a clean slate.”

Changes to expungement laws in Oklahoma continue today. As recently as 2018, the Oklahoma State Bureau of Investigation attempted to argue that the successful completion of a drug-diversion program following a guilty plea did not make one eligible for expungement. The state Supreme Court of Oklahoma overruled this position in a case from McClain County.

“One obvious purpose of the sealing and destruction of the drug-court case file is to protect a successful participant from being denied employment based on their criminal conduct, addiction, and subsequent conquering of the addiction,” the court argued. “Another obvious purpose is that this process is consistent with the overall purpose of drug court, because it allows people who commit to and succeed in the program to move on with their lives, and to remove the stigma such past drug use might cause.”

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