Gov. Mary Fallin vetoed SB 1442 on Tuesday, killing a reform that would have fixed problematic behavior within the Oklahoma Department of Corrections that Attorney General Mike Hunter considers unconstitutional.
In choosing not to sign the bill, Fallin protected a dysfunctional and unfair part of the criminal justice system that Hunter plainly described as unconstitutional in a formal opinion issued in May 2017.
That leaves Oklahoma sheriffs and county administrators with little choice other than to consider legal action against the state. If it comes to that, people should remember how a lawsuit could have been avoided.
Hunter: ‘Statute violates’ Oklahoma Constitution
At hand are millions of dollars in state reimbursements to county jails for the housing of convicted inmates sentenced to state custody.
In 2017, when Hunter was asked by then-Rep. Scott Biggs for an opinion on the matter, state statute required that a three-business-day window for the transmission of qualifying documents be met if a county wanted to receive reimbursement for housing an inmate headed to state custody.
Shortly before Hunter issued his opinion, lawmakers expanded that window to five days, but Hunter’s resultant opinion remained the same: That Article XXI Section 1 and Article X Section 9 of the Oklahoma Constitution require state dollars to be used for the purpose of state incarceration and also prohibit the use of county dollars for that purpose.
While Hunter and Assistant Attorney General Lauren E. Hammonds wrote that they “… recognize that, to some degree, these conclusions may put the department in a difficult situation,” their conclusions are blunt:
1. To the extent the three-day rule in 57 O.S.Supp.2016, § 37(E) requires a county to bear the cost of housing an inmate after a judgment and sentence has been ordered by the court, the statute violates Article XXI, Section 1 of the Oklahoma Constitution by requiring the county to support a state penal institution.
2. The housing of inmates in a county jail after judgment and sentence is ordered is a state purpose. See Bd. of dy. Comm’rs of Cty. of Bryan v. Oklahoma Dept. of Corrections, 2015 OK CIV APP 86, 362 P.3d 241. Article X, Section 9(a) of the Oklahoma Constitution prohibits the use of ad valorem tax revenues for any state purposes. Accordingly, to the extent the three-day rule in 57 O.S. Supp.2016, § 37(E) requires a county to use ad valorem tax revenues to cover the costs of housing the inmate after the judgment and sentence is ordered, the statute violates Article X, Section 9(a) of the Oklahoma Constitution.
That means SB 1442 — which passed the Senate unanimously and the House with more than 75 percent support — should have been signed by the governor to stop the Oklahoma Department of Corrections from continuing to violate the state Constitution.
If the people of Oklahoma cannot count on their government to follow the Constitution, what can they count on?