The Norman Transcript

January 27, 2013

DA, judges at odds over offender referrals

By Mick Hinton
The Norman Transcript

NORMAN — District attorneys across the state used to rely on fees from working bogus check cases to keep their office budgets in the black.

But those days are gone.

“Hardly anybody writes hot checks anymore; they use credit cards,” said Cleveland County District Attorney Greg Mashburn.  Businesses also contract with a private service that verifies immediately whether people have money in their bank accounts.

Now, district attorneys fear there is another threat on the horizon that could whittle away at their sources of revenue.  They fear judges may stop sending to them as many jail diversion cases as they used to. Those cases command a $40 fee paid monthly by each defendant for supervision services.

Mashburn says that he must have that supervision fee simply to run his office.  He fears loss of this fee could affect his ability to prosecute the big cases “like murderers, rapists and child molesters.”

The reality of the situation is that fees collected for misdemeanors and some lesser felonies have to be used elsewhere in his budget. 

In fiscal 2012, the supervision fee provided more than $16 million in revenue that  Oklahoma’s 27 district attorneys would have to make up, said Mashburn, current president of the Oklahoma District Attorneys Association.

In Cleveland County, some cases are being sent to a private supervision service called Oklahoma Court Services (OCS) L.L.C.

Mashburn lost an appeal in the Oklahoma Court of Criminal Appeals on Oct. 24, 2012, regarding supervision of some of these cases. In a test case, he wanted the appeals court to force Cleveland County Special Judge Steve Stice to assign a case of aggravated driving under the influence to the district attorney’s office.

Stice told the appeals court that the DA’s supervision was inadequate, and the judge said he needed to abide by a new state law stipulating what services must be provided an offender charged with aggravated driving while under the influence.

The judge said that “additional resources were necessary to protect the public and facilitate the defendant’s success because of the aggravated use of alcohol involved in the offense.”  That charge is filed in cases where an offender blew more than .15 alcohol content in a DUI case. This amounts to nearly twice as much as what is considered legally drunk, which is an alcohol content of .08.

In Stice’s response to the appeals court, the judge “concluded that supervision by a private supervision provider was necessary.”

Ever since then, the district attorney and judges have been at odds over who should supervise these aggravated DUI cases with .15 alcohol content.

Mashburn asserted that the state law had said that offenders “shall pay” a $40 supervision fee to district attorneys, without stipulating what services — if any — must be provided.

Since then, the District Attorneys Association has approved a set of guidelines which state specific services that DA’s “shall” provide in these cases.

Mashburn said his office provides all of the supervision services performed by OCA, except for one.  But Cleveland County judges disagree with Mashburn, saying those requirements are not being met by the district attorney.

“A monthly pee in a cup” is not required when the district attorney’s office is assigned to monitor whether offenders test positive for drugs.

Mashburn said he could hire an employee to conduct such a test monthly.

“But it would raise the cost of operating my office even more.”  He also noted that the state law does not require this drug test. The DA said if such a test were necessary, he would make sure that it would happen.

Cleveland County judges say they need the discretion to send offenders to the best provider, whether it be a private probation service, the DA’s office or the Department of Corrections.

Tracy Schumacher, chief district judge in Cleveland County, said OCS has a probation officer accompany their clients every time they appear before judges during probation. The representatives are always there to answer questions, Schumacher said, while the district attorney does not provide that service in the courtroom.  Lacking this level of supervision makes it more likely that the offender will end up behind bars.

Stice said the DA’s office typically has handed a list of requirements to an offender, then checked back on the client at the end of a year of probation.

Stice also said that the district attorney’s office is incapable of providing the array of services required by the new law, regarding aggravated DUI cases.

Those requirements include a stipulation that a defendant must undergo substance abuse or a DUI evaluation, must get an interlocking device for  his or her vehicle and must communicate at least weekly with a probation superviser, besides being subject to unannounced urinalyses test.

Mashburn estimates his $5 million annual budget for the Cleveland, Garvin and McClain counties DA office would lose nearly $1 million annually, if all those cases generating $40 each per month were taken away.

Judge Stice says that will never happen. The judge concludes that the district attorney is exaggerating his potential losses in revenue by assuming that all of his cases calling for a $40-a-month fee would be diverted to a private service.

Stice said 90 percent of the misdemeanor cases he routinely handles are still assigned to the district attorney’s office, and he expects that to continue.

The judge estimates that aggravated DUI cases amount to only  “100 out of 2,000 cases” annually.  This would amount to a yearly loss of $48,000 annual loss in Mashburn’s budget.

Both Stice and Schumacher stressed their role in administering justice does not include consideration of the district attorney’s budget when they assign cases.

Schumacher said, “I can’t make my decision of appropriate probation for an offender based on the DA’s budget needs.”

Meanwhile, the district attorneys say they have to live with the criminal appeals court order.  Their only avenue to fix the problem, they say, is to go to the Legislature in search of more money to prosecute cases and run their office.

The district attorney said that going against Stice, then losing the case before the appeals court — composed of judges, too — has not exactly endeared him to the Cleveland County judiciary.

The reality is that “we have a disagreement” as to who can supervise these cases — a private service or the district attorney’s office.

Stice said since that ruling came down, “waters have not been exactly calm.”

Saying he does not want to squabble with the judges, Mashburn said, “My main goal is to provide services to victims and work out agreements for offenders.

“But I also have to protect my budget so I can do these things,” Mashburn said.

“Stice argues that he is doing it for public safety.  I was doing the same thing,” Mashburn said.  “I generate those funds and use that money to pay for prosecution of rapists, murderers, people who stab other people, people kidnap people.”  Mashburn asserts he needs the fees to keep his office in operation.

Suzanne McClain Atwood, director of the district attorneys association, said state appropriations to district attorneys have decreased every year from fiscal 2009 to fiscal 2012. In the current fiscal 2013 year, the DAs did receive an increase.

The argument over who supervises certain cases is likely to end up in the state Legislature, which being asked already to provide more funding for DAs to run their offices.

In 2003, Mashburn said the Legislature passed a law requiring an appropriation of $20 per month for the district attorneys to supervise offenders.  That amount was provided to make up for the losses in appropriations while the state experienced revenue problems, Mashburn said. A few years ago, the fee was upped to $40 monthly.

Judges Stice and Schumacher agree that the DAs need more money, and the Legislature needs to appropriate those funds.

Meanwhile, Mashburn is complimentary of the probation services provided by OCS, which is owned and operated by Julia Curry.

“They do a really good job,” he said.

Curry said, “I wish the legislature would fund the DA’s office adequately, so they can do their job and prosecute crime” throughout the state.

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