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Governor’s veto fails to resolve dispute over incarceration costs

By: Randy Ellis

Oklahoma Gov. Mary Fallin has vetoed a bill that would have eliminated financial consequences to counties for failing to properly notify the Department of Corrections within five days of a county jail inmate being sentenced to state prison.

The veto puts Oklahoma Sheriffs in the uncomfortable position of having to violate the Oklahoma constitution under circumstances over which they have no control, according to Ray McNair, executive director of the Oklahoma Sheriffs’ Association.

It also leaves unresolved a funding dispute between county sheriffs and the state Department of Corrections that has been going on for years.

The dispute centers on the payment of incarceration expenses between the time a county jail inmate is sentenced to state prison and the time the inmate is actually transferred to the state prison system.

Under current Oklahoma law, it is generally the responsibility of the state Department of Corrections to pay for the housing and medical care costs of a county jail inmate from the date they are sentenced to the date of transfer and beyond.

However, another clause in the law requires the county to provide the Department of Corrections with a copy of the judgment and sentence within five business days. Failure to do so puts the responsibility for paying incarceration costs back on the county until the proper paperwork is provided.

The bill the governor vetoed, Senate Bill 1442, would have eliminated the five-day notification requirement, but left the state with the responsibility for paying incarceration costs during the transition period, regardless of when the Department of Corrections received notification.

Twelve days before the governor’s veto, Department of Corrections Director Joe M. Allbaugh wrote a letter to the governor warning that allowing the bill to become law would have adverse financial consequences for the state.

“Prior to having any timeline for when counties were required to submit sentencing documents to ODOC, counties could hold sentencing documents indefinitely, which resulted in ODOC being unaware of the number of inmates awaiting reception and unaware of its financial obligations,” Allbaugh wrote. “Removing this provision … will almost surely result in ODOC needing a supplemental (appropriation) every year to cover county jail backup expenses for which we are unable to predict and plan.”

Allbaugh noted that Tulsa County commissioners and the Tulsa County Criminal Justice Authority currently are suing the corrections department for about $12 million over situations where the department did not pay the county because county officials “did not comply with the law in submitting the sentencing documents timely.”

The governor’s veto may have resolved a problem for the Department of Corrections, but it has exacerbated the financial and legal problems of county sheriffs, McNair said.

McNair pointed to a 2017 opinion by Oklahoma Attorney General Mike Hunter that found it would be a violation of the state constitution for a county to use its tax revenues to cover the cost of housing inmates after they have been sentenced to state prison.

Although it might appear that the simple solution would be for the counties to always meet the five-day notification requirement, sheriffs can’t always do that because of issues outside of their control, McNair said.

“People don’t understand, except for the courts, that the Sheriff has no control over when he gets the sentencing documents,” McNair said. “He can’t demand them. That’s up to the courts when the courts release the sentencing documents and then the Sheriff can send them to the Department of Corrections.”

“Every court in this state works differently,” he said, noting that some judges will not give a Sheriff a sentencing document for 10 days while they wait to see if a decision is going to be appealed.

“Some judges have three or four counties they operate in and you may not see that judge for a week, two weeks,” he added. “Documents have to go through so many people’s hands when somebody has been sentenced to be signed off on — district attorneys, the defense attorneys.”

McNair said there wouldn’t be an issue if Sheriffs had the ability to get sentencing documents on the day the sentences are handed down, but they don’t and that puts Sheriffs in a bind.

“For years they’ve put the Sheriff in jeopardy of some citizen filing a lawsuit for misuse of ad valorem tax,” McNair said, citing the attorney general’s opinion that is a constitutional violation to use county funds to pay for the incarceration of inmates once they become the responsibility of the state.

The dispute isn’t over, but what happens next is unclear, McNair said.

One option would be to try to get the Legislature to overturn the governor’s decision. Another would be a lawsuit.

“That’s kind of a last resort,” McNair said. “Anything that’s resolved in the courts costs everybody a lot more money than just trying to get it worked out one way or another.”

“It will have to be a decision of what my board wants to do,” he said.

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