Criminal Justice

State Sen. Connie Johnson said she intends to introduce legislation next session that would end life-without-parole prison sentences for nonviolent drug convictions, a sensible and pragmatic idea that could save the state a lot of money.

But will her legislation get a fair hearing, and will Republicans budge on the issue?

In recent comments, Johnson, an Oklahoma City Democrat, referred to the case of 61-year-old Larry E. Yarbrough, who was sentenced to life without parole in 1997 after a cocaine trafficking conviction. His extreme sentence was mandatory because he had two prior felony convictions. The Oklahoma Pardon and Parole Board recently voted to commute his sentence to 42 years, which could make him eligible for parole next year. Gov. Mary Fallin will make the final decision in the case.

Johnson called Yarbrough a “poster child” for extreme sentencing.

The case reflects important issues facing our state and federal criminal justice system right now.

One issue is the exorbitant amounts of money Oklahoma, other states and the federal government spend each year to lock up nonviolent drug offenders. Johnson pointed out it costs Oklahoma taxpayers an average of $23,000 to house an inmate annually. Johnson’s proposed legislation, along with other ongoing efforts to reduce sentences for nonviolent offenders, could save the state millions of dollars. Overall, the so-called War on Drugs, started in the 1970s by then-President Richard Nixon, has cost a staggering $26 billion in state and federal costs this year alone, according to one organization. By many accounts, the “war” has been an abject failure, filling our prisons with nonviolent offenders. The current process is not sustainable. We should focus on treatment and community sentencing for nonviolent offenders.

Another issue is the U.S. Constitution’s Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Life sentences without parole are not in themselves unconstitutional, and sometimes there are pressing public safety reasons to keep certain individuals locked up, but one can make a legal argument that nonviolent offenders who face life without parole are receiving cruel and unusual punishment. It’s really just a form of modern-day, psychological torture. Just because a political body, such as a state legislature, sanctions excessive punishment, doesn’t mean it’s right.

Can common sense trump the let’s-get-tough-on-criminals mentality that has led to these three-strike laws throughout the country? It’s ultimately going to take a legislative solution. It’s rarely politically expedient for any governor or elected official to release someone from prison or commute a sentence. What if the convicted person goes on to commit another crime? That could ruin a political career. We need to remove politics from the parole process as much as possible.

(What does the recent court ruling on California's Proposition 8 mean for Oklahoma's gay community? Read DocHoc's commentary this week in the Oklahoma Gazette.)

The Jerome Ersland murder case has now produced so many cultural narratives and case twists it’s beginning to take on symbolic significance for the state and its criminal justice system.

Ersland is a local pharmacist charged with first-degree murder. He is accused of killing robbery suspect, Antwun Parker, 16, at Reliable Discount Pharmacy on May 19, 2009. Prosecutors claim Ersland shot the unarmed Parker, left the store to chase another robbery suspect, who was armed, and then came back and shot Parker again. The second shots were unnecessary and killed Parker, prosecutors allege.

A surveillance video of the shooting, part of the above news report, has been widely posted on the internet, and the case has generated a tremendous amount of local media coverage. Ersland’s attorney Irven Box and Oklahoma County District Attorney David Prater have continued to comment on the case to reporters, sometimes verbally sparring with each other. Meanwhile, the forensic evidence in the case has come under scrutiny and a judge has taken herself off the case.

Here is a partial rundown of how the case has taken on larger, symbolic and philosophical dimensions.

The video. The video appears to show Ersland coming back into the store, retrieving another weapon and then opening fire again on Parker. The video does not show Parker during the second volley of shots so it’s hard to discern his condition. Whatever the case, the video made its way around the Internet and provoked strong, divisive feelings about guns, self-protection and crime in general.

Gun rights advocates. After the charges were filed, gun rights advocates rallied around Ersland as they tried to make the case a Second Amendment issue. Here’s an example of their arguments. Ersland is also a military veteran, which made him receive even more sympathy from gun rights advocates.

Race. Ersland is white and shot the black suspect several times after he had fallen to the floor. The local National Association for the Advancement of Colored People held a press conference after the charges were filed, according to a media report, commending Prater for bringing the charges but not taking sides in the case. Now, some local African American leaders are criticizing Prater for trying to remove the judge in the case. The judge is an African American.

The forensic evidence. The initial forensic evidence was reviewed by the then-chief medical examiner, Dr. Collie Trant, who was later fired from the office. Trant argued that Parker died in the second volley of shots. However, Box argued another pathologist, Dr. Chai Choi, who reviewed the case after Trant, gave a different interpretation, according to a media report. Eventually, Pater decided to proceed with the case. Was the first shot fatal? The entire case may ride on the answer to that question.

The judge. Oklahoma County District Judge Tammy Bass-LeSure recently removed herself from the case after a request from Prater. After she did so, a media report surfaced that Bass-LeSure allegedly told her “personal trainer” he would not do jail time on drug charges in a case she was handling. In one meeting, the trainer, according to the report, said LeSure recommended three attorneys he might hire. One of those attorneys, Jeff Brett Reynolds, also helps represent Ersland. A new judge has been assigned to the case.

So far the case then has spawned a sensational video, gun rights rhetoric, comments from the NAACP, CSI-like complications with the evidence and a judge who steps down. What’s next? How does all this look to people outside the state? How do they perceive our criminal justice system? How do we now perceive our criminal justice system? How does the internet, the local media and political posturing—gun rights rhetoric and the NAACP comments—affect how we view the case?

It may well be that an Oklahoma jury will never convict Ersland because of a prevailing sense of the right to self-protection and the right to bear arms, but the case, for better or worse, reflects the power of new media, political division and specific aspects of our criminal justice system that should raise questions. There are no winners here.