The Cost Of Prosecution: DA Says Defendants Pay Too Much Of Oklahoma's Criminal Justice Tab

Dec 1, 2018

Jason Hicks stands in the back of his Duncan office behind a desk with a transparent top that frames photos of his wife and three children. 

There are more pictures behind Hicks — photos of people murdered in cases he worked as top prosecutor for Caddo, Grady, Jefferson and Stephens counties. One is a portrait of 14-year-old Alyssa Wiles. She was stabbed to death five years ago, and Hicks helped convict her teenaged ex-boyfriend of the crime.

Hicks also keeps a stuffed kangaroo with boxing gloves on its paws that came from the family of Christopher Lane, a college baseball player from Australia shot to death in 2013.

After explaining the photos, Hicks joked that prosecutors are human despite what some may think.

“I think as the criminal justice reform debate has gone on there’s been a little bit of demonization of prosecutors across the state,” Hicks said. “We’re not the ones that are looking at it going, ‘OK, we’re getting out of bed today to see how many people we can put in prisons.’ That’s not the way we operate.”

District attorneys are not always the most popular law enforcement officials in Oklahoma. 

Part of that could come from how they fund their offices — an arrangement some say is unethical.

How prosecutors raise money

Every year, state funding leaves a big hole in Hicks’ budget. This year, money appropriated by Oklahoma lawmakers will cover about 40 percent of his office’s roughly $3.2 million budget. 

Hicks can fill part of the gap with federal grants and other sources, most of the money comes from fees charged to criminal defendants. 

This funding situation is typical for Oklahoma’s 27 district attorneys — and has been for years.

State funding covers less than half the cost of criminal prosecutions in courts across Oklahoma, state budget data show. District attorneys say this has turned local prosecutors into bill collectors, a strain prosecutors say affects attorney workloads and could lead to mistakes in the courtroom.

In Fiscal Year 2018, funding from the Legislature paid a little more than a quarter of district attorneys’ operating expenses. Prosecutors covered nearly half of the expenses on their own, state budget data show. 

Ethical questions

Ryan Kiesel, the executive director of the ACLU of Oklahoma, said often defendants can’t afford to pay the court fees they’re charged to help fund the criminal justice system. 

“It’s a terrible way to fund our prosecutors’ offices,” he said. 

Kiesel said collecting money from defendants also puts prosecutors in a tough position.

“We create … a financial interest in the prosecutor’s office to be able to stack these fees on top of individuals,” Kiesel said. 

Even the appearance of a conflict of interest hurts Oklahoma’s criminal justice system, he said, suggesting the best solution is for state dollars to cover more of the bill. 

Hicks, the DA, agrees.

One of Hicks’ biggest funding streams comes from fees charged to people on probation. Some people don’t pay, so before they come off probation, he has to decide whether to threaten them with a court hearing — and, potentially, prison.

“It forces us into a position that we either have to file an application to revoke, or we basically have to walk away from it,” Hicks said.

Hicks said if he takes a probationer to court over money, his office works with them until they pay. 

“We don’t want to send somebody to prison just because they’re not making a payment,” he said. “I’ve got a personal problem with that.”

In the early ’80s, Oklahoma lawmakers voted to fully fund local district attorneys with state money after a widespread county corruption scandal. Legislators were worried prosecutors might be reluctant to go after officials that funded their operations.

Years later, the funding was cut during oil slumps and other shortfalls. Lawmakers replaced that money with fees collected from defendants.

Costs to prosecutors

As a result, Hicks said he spends a lot of time worrying about his budget and can’t afford to hire the attorneys and staff he needs. That means overworked employees and experienced attorneys who leave for better-paying jobs — a talent drain that can lead to errors.

“One of the things is basically overvaluing your case,” Hicks said, explaining how for some defendants an inexperienced prosecutor might recommend a prison sentence when a more experienced prosecutor would push for probation.

Judges, juries and even defense attorneys play a role in sentencing, but the process usually starts with prosecutors. 

“Those are things that come with experience — knowing which offenders you can take a risk on,” Hicks said. 

Hicks said his staff can’t afford to give some cases the time they deserve. Sometimes they can’t spend enough time working with crime victims or on programs designed to steer people away from prison, he said.

Where will the money come from?

Hicks said it’s appropriate for defendants to shoulder some of the cost of their alleged crimes, but he thinks the state is making them pay too much. Hicks said prosecutors should be focusing on criminal cases — not fund-raising.

“I’m not someone who is going to advocate raising taxes by any stretch of the imagination,” he said, “but we’ve got to have that money, and that money has to come from somewhere.