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Governor Fallin Orders Early Release Credits for Offenders Convicted of 85% Crimes

| July 8, 2015

Governor Fallin of Oklahoma last week issued a gubernatorial memorandum directing the State Board of Corrections to amend its policies in regards to early release credits for offenders convicted of 85% crimes. After two legislative sessions in which a bill with similar effect failed, Governor Fallin has taken this step as a way to initiate a change in policy recommended by various entities.

According to the Governor’s memorandum, before 1999 there were few exemptions in Oklahoma to the early release credit policy. These few exemptions explicitly stated that the offender would “serve a minimum of fifty percent (50%) of the sentence received prior to becoming eligible for” early release credits.

When the state passed truth in sentencing legislation in 1999, it created a list of crimes for which, if convicted, the offender would be required to serve 85% of the sentence received. The aim of this legislation, according the Governor’s interpretation, was to cap the amount of early release credits an offender could earn at 15% of their sentence, effectively requiring them to serve 85% of the time. This new standard was designed to replace the “prior to becoming eligible” exemptions created before 1999.

Despite no explicit statutory exemption to the early release credit policy for these new “85% crimes,” the Department of Corrections applied the same “prior to becoming eligible” criteria, denying offenders the ability to earn early release credits until they served 85% of their sentence. As a result, offenders are now serving closer to 90-93% of their sentence.

Further bolstering her legal standing, the Governor notes in the memorandum two statutes that were amended by the legislature specifically to limit the ability to earn early release credits for drug and human trafficking offenses. The statute states “the person shall serve eighty-five percent (85%) of the sentence before being eligible for any earned credits.” No other “85% crime” statute carries such a provision.

During the Justice Reinvestment Initiative process, the Council of State Governments (CSG) recognized this discrepancy and recommended in their final report that the state clarify the intent of the 85% law and allow offenders to earn early release credits during their sentence. They also projected a significant growth among this inmate population as more offenders are sentenced for 85% crimes and as a result spend a longer time in prison. In 2012, 6,132 inmates were sentenced under the 85% laws. They project the number of inmates serving “85% crimes” sentences will rise to 8,698 by 2021, an increase of over 40%. The additional cost to the state during this period will be $259 million, or 53% of the entire Department of Corrections annual budget for fiscal year 2016.

According to the Governor’s General Counsel, the immediate impact of the policy change will be felt by the roughly 6,000 inmates in DOC custody serving 85% crimes and could save the state up to $2.3 million just in the next 18 months.

The memorandum issued by the Governor is the legal equivalent of an executive order, however, the Board of Corrections must implement the policy change through a vote at their regularly scheduled meeting on Thursday, July 9th.

Amending this policy to reflect the intent of the statute will aid in stemming the growth of Oklahoma’s inmate population. Governor Fallin has again demonstrated the intent of her administration to make meaningful changes to better use taxpayer dollars in order to create a more effective correctional system in Oklahoma. Yet another sign the door remains open for further reforms in the coming legislative session to continue advocating for safe communities, fiscal responsibility, and efficient government.


ADAM LUCK is the Oklahoma State Director of Right on Crime. He is an Oklahoma native; he and his wife Sarah grew up in Broken Arrow. Shortly after graduating high school he joined the Air Force. He has a B.S. from Embry-Riddle Aeronautical University and a Master of Public Policy from the John F. Kennedy School of Government at Harvard University.