State Questions for 2016
By: Miles Pringle
Currently there are seven State Questions on the ballot this November. As ballot titles are limited to 200 words, here is additional information to consider this fall. [NOTE: Any opinions expressed in this article are that of the author and not of the Oklahoma County Bar Association or the Briefcase Committee]
State Question 776: Death Penalty
State Question 776 seeks to add an amendment to the Oklahoma Constitution providing the legislature with authority to make “changes in methods of execution”. The language of the proposed amendment states that “[a]ny method of execution shall be allowed, unless prohibited by the United States Constitution.” Given that the state of Oklahoma has executed the second most people since reinstatement of the death penalty in 1976, one might think that there was a constitutional mandate for execution. That would be wrong. The only provision in the Oklahoma Constitution relating to the death penalty limits the Governor’s power to parole death sentences. Okl. Const. Art. VI, § 10 (“the Governor shall not have the power to grant paroles if a person has been sentenced to death or sentenced to life imprisonment without parole.”).
State Question 776 does not actually amend or change anything. The Oklahoma Constitution does not limit the death penalty, and the legislature has the authority to mandate methods of execution. See e.g. 22 O.S. § 1014 (amended effective November 2015 to include nitrogen hypoxia as a means of execution along with a lethal quantity of drugs, electrocution and firing squad). Regardless of one’s stance on the death penalty, this measure would have no immediate impact on the status quo of Oklahoma law.
State Question 777: Right to Farm
State Question 777 is probably the most controversial state question on the ballot. It provides that “the rights of citizens and lawful residents of Oklahoma to engage in farming and ranching practices shall be forever guaranteed in this state.” It also prohibits the legislature from passing any law which “abridges the right of citizens and lawful residents of Oklahoma to employ agricultural technology and livestock production and ranching practices without a compelling state interest.” Thus, SQ 777 appears to be an attempt to prevent any future regulation of the agriculture industry.
Agriculture is fundamental for America’s and Oklahoma’s prosperity and security. Looking at the food lines in Venezuela really makes one appreciate the abundance of food resources we have in the United States. State Question 777, however, is impractical and unworkable. Agriculture and livestock are catchall terms which can include many things from fishing to farming cotton to raising cattle or poultry (or even puppy mills as noted in former Attorney General Drew Edmondson’s excellent article in OKC Pets Magazine). While fundamental to our society, it is worth noting that agriculture is a small part of our economy. In total, agriculture accounts for approximately 1.5% of Oklahoma’s gross domestic product[i], and similar amount in share of jobs[ii].
Agriculture and livestock operations are incredibly complex today. We are not talking just about small family farms. While “most cropland was operated by farms with less than 600 crop acres in the early 1980s, today most cropland is on farms with at least 1,100 acres, and many farms are 5 and 10 times that size.”[iii] “The shift of acreage to larger farms is part of a complex set of structural changes in crop agriculture”, and are accompanied by greater specialization.[iv] Technology has been fundamental in this development, “from bigger and faster capital equipment to information technology, chemical herbicides, seed genetics, and changing tillage techniques”, and reduced amount of labor used in agriculture.
I recently had a long conversation with a fraternity brother about his family’s cattle and swine operations in Minnesota, which he helps operate. The cattle operation is impressive, including lots of moving parts such as transportation, veterinary bills and commodity prices. Just figuring out the right amount of feed is paramount, because the feed is itself a fluctuating commodity. We even talked about how some cattle farmers recycle manure into energy to operate the farm (in a process of capturing methane gas), but his farm was not large enough to make that process cost effective. Even more complex is the swine operation. My friend explained that pigs are very susceptible to diseases and other conditions, and that their care is a real science. For example, swine need special truck beds for transportation, and the beds must be thoroughly sanitized after each ride to avoid spreading any contagions.
Forever is a long time. Agriculture is vastly different today than during the dust bowl era, and will continue to evolve well into the future. Who knows what the next 50 years will bring. How far does this amendment reach? Will the legislature be unable to regulate water rights because they “abridge” some corporation’s farm? Agriculture already receives preferential treatment from the government as compared with some other industries. Ranchers and farmers have access to preferable farms loans (which are partially guaranteed by the government), subsidies to control supply and prices, tax credits, and special bankruptcy provisions. Farming and ranching do not need more protection from the government, it is their best friend (which is entirely appropriate in most circumstances).
Agriculture is an important industry, but an industry nonetheless, susceptible to dangers and hazardous activities. Oklahomans, through their legislature, have the right and need to pass laws relating to farms, ranches, puppy mills, grow houses, and water rights when appropriate. There are other arguments against SQ 777, such as the amendment’s benefit to foreign corporations and its protection of animal abuse as discussed by General Edmondson. In sum, it is hard to find a good reason for this measure to be passed.
State Question 779: 1% Sales Tax for Oklahoma Education Fund
State Question 779 would raise the Oklahoma Sales Tax by 1% to create an education fund. The fund would be distributed 69.5% to the common education fund (including a $5,000 per year raise for teachers), 19.25% for higher education, 8% for early childhood education, and 3.25% for career and technology training. The measure includes a provision that its funds may not be used to offset any current education funding.
Some critics of SQ 779 have argued that the law may provide no tangible benefits. This is an interesting argument to make when Oklahoma City public schools literally had to shut down early last year and delayed buying new text books and other student supplies due to budget short falls. The tangible benefits would be full school years, new textbooks, and a blanket teacher pay raise (whose average pay is the third lowest in the nation[v]).
There are more effective arguments against the measure, such as: 1) Oklahoma’s sales taxes are already high, and 2) budget shortfall can be better resolved by repealing recent tax cuts and will hopefully benefit from increased oil prices. Repealing recent tax cuts would be a better way to shore up Oklahoma’s shortfall, although that did not happen this year in spite of massive budget shortfalls. If someone knows how to raise international oil prices (short of bribing the King of Saudi Arabia), please let me know!
Raising the sales tax may not be the best way to raise funds for education. Oklahoma pays approximately the sixth highest average sales tax by state in the nation.[vi] A sales tax is a regressive tax that disproportionately affects the poorest Oklahomans. SQ 779 is an incomplete and imperfect solution to a real and serious problem for Oklahoma. One could view it as a good start, or not worth the cost.
State Question 780: Criminal Justice Reform
State Question 780, self-titled the “Oklahoma Smart Justice Reform Act”, amends certain state drug laws and property crimes. It would make possession of small amounts of drugs a misdemeanor and raise the threshold of property crimes to $1000 for a felony. The best statement in favor of SQ 780 is made within its proposed Section 1, which states:
The people of the state of Oklahoma find the fact that Oklahoma has the second-highest overall incarceration rate in the country, and the highest incarceration rate for women, is inconsistent with Oklahoma values, and drains resources away from investments that can do more to promote public safety. Therefore, the people intend, in enacting this initiative measure, to implement criminal justice reforms that: (1) stop wasting taxpayer money keeping people who commit low-level offenses behind bars for years; and (2) saddle fewer people who commit low-level offenses with felony convictions that will follow them through life and prevent them from getting an education or a job.
It is hard to disagree with this statement. Moreover, drug crimes in particular disproportionately affect African Americans. For example, nationally, blacks are 3.6 more likely to be arrested for selling drugs and 2.5 times more likely to be arrested for possessing drugs, even though “whites are actually more likely than blacks to sell drugs and about as likely to consume them.”[vii] After serving out their sentences, ex-felons can spiral right back into prison as they face tough job restrictions, numerous fees and fines, and prohibition from participating in government programs for the poor.[viii]
Will SQ 780 help with Oklahoma’s overcrowding prisons? Yes, but there is a caveat. According to the Oklahoma Policy Institute, the main driver of Oklahoma’s prison population growth is the 85% rule.[ix] That is, felons convicted of more serious crimes (e.g. first & second degree murder, human trafficking, and child pornography) are “required to serve not less than eighty-five percent (85%) of any sentence of imprisonment imposed by the judicial system prior to becoming eligible for consideration for parole.” 21 O.S. § 13.1. This law originally became effective in 1999, and inmates subject to its provisions continue to linger in prison as more roll into the system. What assures the 85% population’s continued growth is that Oklahoma prison sentences continue to grow in length. “Between 1990 and 2009, the average time served by Oklahoma prisoners increased by 83 percent, the fourth biggest jump in the country.”[x]
With that said, the majority of Oklahoma prisoners are not subject to the 85% rule. The population of drug related offenders alone is 7,588, or 26.3% (which does not include County Jail Back-up, Escapees, and Interstate Compact Out (LARC-IC) figures).[xi] This makes the drug related population that has made it into the DOC system larger than the towns of Seminole, Anadarko and Noble. Over time, SQ 780 should have positive impact on Oklahoma’s prison population.
State Question 781: Rehabilitation Funding
State Question 781 is contingent upon SQ 780 passing, and would use funds saved from SQ 780 to create the “County Community Safety Investment Fund”. Monies in the fund would be distributed to counties in proportion to their population to provide community rehabilitative programs, such as mental health and substance abuse services. The purpose of the new law, as stated in Section 1, is to enact “criminal justice reforms that focus on treating the root causes of crime by increasing funding for rehabilitation services like drug and mental health treatment, job training, and education programs.”
As stated above, Oklahoma has the second highest number of people incarcerated per capita, and when leaving prison, ex-felons face a litany of obstacles in reintegrating into society. What also needs to be pointed out is that Oklahoma prisons operate as mental health facilities. In 2015, more than half of DOC inmates had a history of mental illness, and 46% currently had symptoms of mental illness.[xii] “Of incarcerated men, 30% currently exhibit symptoms of a serious mental illness, [and] 58% of female offenders currently exhibit symptoms of a serious mental illness.”[xiii] “Serious mental illness” being defined as: “a DSM-IV-R Axis I mental disorder that causes maladjustment and/or personal suffering to the extent that medication is needed and prescribed by a psychiatrist or an Axis I diagnosis in the groups of psychotic disorders, Bi-Polar, or Major Depression.”
This is a difficult issue. Investment in treating substance abuse and mental illness is important. Currently, Oklahoma leans far too much on DOC to treat these issues, which it is not designed to do. However, if DOC is allowed to keep any savings from SQ 780, then theoretically it can make important investments, such as staffing, infrastructure improvements, and better treatment of substance abuse and mental health (so long as the Legislature lets DOC keep the savings). SQ 781 is a tough call.
State Question 790: Removal of the Prohibition against State Sponsorship of Religion
According to Wikipedia, Moses was born circa 1400 B.C., and died circa 1201 B.C. Somewhere during that time Moses brought down from Mt. Sinai the words of the Lord, which included the Ten Commandments. In 2016, some 3,200 years later, the Oklahoma Legislature enrolled State Question 790, which proposes to remove the prohibition of government using public money or property for the direct or indirect benefit of any religion or religious institution. This is the Legislature’s response to the Oklahoma Supreme Court’s ruling regarding the Ten Commandments monument on the State Capitol. Prescott v. Okla. Capitol Pres. Comm'n, 2015 OK 54, 373 P.3d 1032 (“Because the monument at issue operates for the use, benefit or support of a sect or system of religion, it violates Article 2, Section 5 of the Oklahoma Constitution and is enjoined and shall be removed.”).
The Supreme Court has held that a monument to the Ten Commandments in Texas did not violate the Establishment Clause of the United States Constitution. Van Orden v. Perry, 545 U.S. 677, 125 S. Ct. 2854 (2005). This case was not a blanket endorsement of having the Ten Commandments on all state capitol grounds; however, the Court did note the role that the Ten Commandments have played in our Nation’s history. “We need only look within our own Courtroom. Since 1935, Moses has stood, holding two tablets that reveal portions of the Ten Commandments written in Hebrew, among other lawgivers in the south frieze. Representations of the Ten Commandments adorn the metal gates lining the north and south sides of the Courtroom as well as the doors leading into the Courtroom. Moses also sits on the exterior east facade of the building holding the Ten Commandments tablets.” Id, 545 U.S. at 688. Regardless of the Oklahoma Supreme Court’s ruling, removing Oklahoma’s separation of church and state is a terrible idea.
In 1802, Thomas Jefferson said “Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.”
As further explained by the Supreme Court: “Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.” Lemon v. Kurtzman, 403 U.S. 602, 622, 91 S. Ct. 2105, 2116 (1971). “We have an expanding array of vexing issues, local and national, domestic and international, to debate and divide on. It conflicts with our whole history and tradition to permit questions of the Religion Clauses to assume such importance in our legislatures and in our elections that they could divert attention from the myriad issues and problems that confront every level of government.” Id, 403 U.S. at 622-23.
Although repealing Article 2, Section 5 of the Oklahoma Constitution will have no effect on the Establishment Clause of the U.S. Constitution, separation of church and state is a pillar upon which out free society stands. There should be no undermining of this basic principle, which was contained in Oklahoma’s original Constitution in 1907.
State Question 792: Alcohol Reform
No research needed, just vote yes.
[i]Evans, Monty, “Oklahoma Economic Indicators”, p. 9, Oklahoma Employment Security Commission, published August 2016; citing U.S. Department of Commerce, Bureau of Economics Analysis.
[ii] Wilkerson, Chad, “The Oklahoma Economic Databook”, Federal Reserve Bank of Kansas City, published Aug. 22, 2016.
[iii] MacDonald, James, Korb, Panni, and Hoppe, Robert A., “Farm Size and the Organization of U.S. Crop Farming”, United States Department of Agriculture, Economic Research Report No. 152, published Aug. 2013.
[v] Strauss, Valerie, “How much teachers get paid – state by state”, The Washington Post, published Dec. 15, 2013.
[vi] Forbes.com, “10 States with the Highest Average Sales Tax Rates”.
[vii] Rothwell, Johnathan, “How the War on Drugs Damages Black Social Mobility”, The Brookings Institution, published Sept. 30, 2014.
[viii] Perry, Gene, “Every sentence is a life sentence: 3 barriers to life after prison”, Oklahoma Policy Institute, published Jan. 21, 2015.
[ix] Gentzler, Ryan, “What’s driving Oklahoma’s prison population growth?”, Oklahoma Policy Institute, published Feb. 9, 2016.
[xi] Oklahoma Department of Corrections, “2015 Annual Report” (“Inmates sentenced by the court to the ODOC are housed in county jails until reception into ODOC custody.”).
[xiii] Oklahoma Department of Corrections, “Mental Health Services”, available at https://www.ok.gov/doc/Organization/Administrative_Operations/Health_Services/Mental_Health_Services/ (last accessed Sept. 8, 2016).
This Article was originally published in Oklahoma County Bar Association’s Briefcase Vol. 49 No. 9 in September 2016.