Drug possession became a misdemeanor in Oklahoma last year, but some areas of the state have seen a sharp rise in felony distribution cases since the new law took effect.

Some parts of Oklahoma saw possession with intent to distribute charges more than double in the second half of 2017 over the previous two years, according to data compiled by ACLU of Oklahoma and the non-partisan think tank the Oklahoma Policy Institute.

Criminal justice reform advocate Kris Steele, who championed the state question that revamped drug laws in Oklahoma, has long been concerned that some prosecutors would do an end-around the state’s new misdemeanor drug possession law by charging more people with felony drug distribution instead.

“We were worried we were going to see prosecutorial overreach in certain situations and that’s exactly what we are seeing in some instances,” Steele said.

Oklahomans voted in November 2016 to reclassify simple drug possession as a misdemeanor — part of a package of criminal justice reforms known as State Questions 780 and 781. The new laws took effect in July 2017. The goal of the state questions was to help ease prison overcrowding and siphon drug offenders away from prison and into treatment programs.

Statewide, drug distribution felony case filings for the second half of 2017 increased by 18 percent over the same period in 2016, according to data compiled by Oklahomans for Criminal Justice Reform, which backed State Questions 780 and and 781. Oklahomans for Criminal Justice Reform found nearly 1,400 new felony drug distribution cases containing 1,500 felony counts were filed from July 2017 to January 2018.

Overall, felony filings are down 26 percent in Oklahoma since SQ 780 took effect, according to Oklahomans for Criminal Justice Reform.

District 9, which includes Payne and Logan Counties, saw the biggest increase for possession with intent to distribute cases last year, according to the Oklahoma Policy Institute and ACLU numbers. There were 52 possession with intent to distribute cases filed in District 9 after drug possession became a misdemeanor last year, a more than 165 percent increase over the previous two years.

District Attorney Laura Thomas, who oversees District 9, said the numbers came as a surprise to her. For the most part, prosecutors in her district have seen a big decrease in felony caseloads since drug possession became a misdemeanor, but misdemeanors have “exploded further,” Thomas said in an email.

For the most part, prosecutors in Thomas’s district file the charges as they are presented to them by law enforcement, she said.

“We file where the facts and evidence take us,” Thomas said “It would be improbable to receive a charge for mere possession and turn it into (possession with intent to distribute).”

For possession with intent to distribute, there must be clear evidence a person was dealing drugs or intending to deal drugs, including how drugs were packaged, ledgers, journals or text messages showing drug deals being made, Thomas said.

“We certainly aren’t looking for more cases to file,” she said.

District 19, which encompasses Atoka, Bryant and Coal counties had the second largest increase in possession with intent to distribute cases filed since the new law took effect.

There were 24 possession with intent to distribute cases filed in District 19 during the second half of 2017, a 160 percent increase from before SQ 780 took effect.

District Attorney Emily Redman, who oversees District 19, said her district has a lot of drug activity from its close proximity to the Texas border.

U.S. Route 75 also passes through Redman’s district—a heavily travelled drug corridor between Texas and Chicago. Methamphetamine is a major problem in the area, she said.

There’s no effort in District 19 to charge more people with possession with intent to distribute because it’s a felony with harsher penalties, Redman said.

“It just varies on a case-by-case basis — the defendant’s criminal history, the amount of the drugs, it all varies,” Redman said. “The elements of the crime are the same and the burden of proof is the same.”

In Oklahoma there’s no specific threshold on the amount of drugs present for a person to be charged with possession with intent to distribute.

Trent Baggett, executive coordinator for the Oklahoma District Attorneys Council, said it’s possible that district attorneys may be filing some possession with intent to distribute cases in order to get defendants into the drug court program, which requires a felony charge to enter.

“But obviously they can’t charge a crime if the evidence is not there,” Baggett said. “Every case is different. It’s going to be based on the evidence.”

When considering the charge, prosecutors may instead look at whether the drugs were broken up into multiple packages for sale, if other paraphernalia such as scales and plastic baggies were present, or if a person also had a large quantity of money with them along with the drugs.

Oklahoma prosecutors have a lot of wiggle room in how drug possession is charged, said Nicole McAfee, Smart Justice campaign manager for the ACLU of Oklahoma.

“It’s entirely at their discretion,” McAfee said. “We hear a lot about cases where people have more than one baggie or some other paraphernalia and the next thing you know it becomes possession with intent to distribute—a lot of those charges undermine the spirit of what SQ 780 did.”

Steele is concerned the lack of a more specific definition of possession with intent to distribute leads to an uneven and arbitrary enforcement of the law.

“If a prosecutor wants to, they can charge one person with possession and another with distribution,” Steele said. “Those decisions can be political in nature and they shouldn’t be.”

Even as a first offense, possession with intent to distribute can be punishable by a minimum sentence of two years and as much as life in prison in Oklahoma.

Ryan Gentzler, a policy analyst for the Oklahoma Policy Institute, said it’s possible for prosecutors to file more stringent charges in order to have more leverage to get a defendant to plead to lesser charges or agree to enter treatment.

“It’s really hard to know what happens in DAs offices because there’s no real guidance or oversight,” Gentzler said. “There’s no one reviewing their decisions—no one to question how they are charging things other than the judge and the defense attorneys.”