Bar Journal 2013

In other words, the only defendants entitled to individualized sentencing are those for whom the prosecution seeks the penalty of death. Everyone else is subject to any disproportionate sentence that does not “shock the conscience of the court.”4

What does this mean for the plea bargaining process? It essentially means that any mitigation of the crime charged must persuade the prosecutor, not the impartial judge or unbiased jury. It also means defendants who might be less culpable, in fact, than as they are charged may plead guilty when they are either innocent or less culpable, because their cases will go to a jury without the opportunity to present evidence in mitigation of their crime. Of course defenses such as duress are still defenses to the mens rea element of the crime; but unless the penalty sought is death, there is no right to let a jury know about traumas the defendant has suffered, such as childhood abuse or mental health issues.



Both the state and the defendant have a right to a jury trial. Where there are strong mitigating factors, therefore, an aggressive prosecutor may certainly decide not to waive jury trial even if the defendant wishes to be able to present mitigation to the judge as sole sentencer. A judge cannot modify the sentence recommended by the jury, unless the judge is allowed to sentence either by both parties waiving a jury or abdication by the jury of its power to recommend a sentence, which is so rare as to be disregarded.5



Roughly 95-97 percent or more of all state cases are settled by plea bargain.6 In the federal courts it is 95 percent.7 Last year the U.S. Supreme Court, Justice Kennedy writing for the majority, said in Missouri v. Frye8:

To a large extent ... horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.” Scott & Stuntz, “Plea Bargaining as Contract,” 101 Yale L.J. 1909, 1912 (1992). See also Barkow, “Separation of Powers and the Criminal Law,” 58 Stan. L.Rev. 989, 1034 (2006) (“[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes. This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial” (footnote omitted)). In today’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.

An increase in 10 percent, or even 5 percent, of cases going to a jury could well cripple the criminal justice system, overwhelming prosecutors, defenders and dockets.9 What this has created is the world’s most imprisoning country per capita. At the beginning of 2010 the United States incarcerated 743 adults per 100,000 population, for a total well over 2 million adults. Nearly 5 million more were on probation or parole. Russia was second in the world at 577 per capita.10 Among the U.S. states, Oklahoma has ranked as high as fourth — and first for women.11

But this is not a labor union issue wherein uniting against authority is likely to increase the power of all defendants to get individualized sentencing. Lawyers cannot ethically advise their clients to join in a mass effort to refuse plea bargains and thus cripple the system. Lawyers represent individuals, not groups. This will be discussed further below, but it is important to observe that there may well be a connection between the plea bargaining system and our nation’s world-highest rate of incarceration.

Because prosecutors are usually de facto sentencers, and because their sworn duty is also to protect the public as well as to accomplish justice, they often experience crosscurrents of motivations: let the punishment fit the crime but take no chances on further harm to society. Defenders are also subject to conflicting motivations: taking a tough and vigorous motion practice approach in non-capital cases, working the DA harder may help the current client, but may result in worse offers to future clients who have “caught-red-handed” cases. Arguably, the resulting system is one which has devolved into an exercise in game theory, and the literature is replete with game theory analyses of criminal justice. A plea bargain is a contract12 under the law, but some argue it is often a contract of adhesion.

THE UNINTENDED RESULTS OF PLEA BARGAIN JUSTICE

Martin Yant, a nationally known journalist and investigator, refers to the plea bargain system as coercive:

Even when the charges are more serious, prosecutors often can still bluff defense attorneys and their clients into pleading guilty to a lesser offense. As a result, people who might have been acquitted because of lack of evidence, but also who are in fact truly innocent, will often plead guilty to the charge. Why? In a word, fear. And the more numerous and serious the charges, studies have shown, the greater the fear. That explains why prosecutors sometimes seem to file every charge imaginable against defendants.13

There are several types of plea bargaining. In “charge bargaining,” a defendant pleads to a less serious charge, which has only to fit some part of the actual facts such that the defendant’s allocution truthfully encompasses the crime charged to the judge’s satisfaction.

In “count bargaining,” the defendant pleads guilty to one or more counts while one or more other counts are dismissed. Usually (and as is really ethically necessary to urge from a defender’s standpoint) the bargain includes the proviso that the sentences for each count pled are to run concurrently. In “sentence bargaining,” there is an agreement as to what the sentence should be; if the judge feels differently, the plea bargain is voidable by the defendant.

In “fact bargaining,” the parties agree that they will stipulate to certain facts which  will affect sentencing, e.g., the quantity of drugs for which the defendant is responsible or the defendant’s importance of role in a conspiracy. In state charges, the prosecutor may now waive “Page 2” enhancements for prior crimes.

 

Thus there are many tools in the belt of the bargainer. Always in the back of the bargainers’ mind is the uncertainty of what a jury will do, and how strapped for time the lawyers are. The resulting outcome, as a result, is frequently not ideal. This is well illustrated by the classic exercise in game theory called “The Prisoner’s Dilemma.” The situation is that two defendants who committed a crime together are caught and arrested, and held incommunicado from one another. Each is offered the same deal: if one confesses and the partner does not, the confessor gets six months and the non-confessor gets five years. If neither confess both get one year. The loser in the snitch race gets five years. How can either trust the other? So both confess and both get three years, whereas if they had clammed up, they each would get only one year. This was re-ferred to in an illustrative cartoon by livingeconomics.org as “individually smart, collectively dumb.”14 The video is available at http://goo.gl/DFDG9.

As endnote 14 indicates, in real life it is not a game for the individual defendant, who may or may not behave altruistically in the situation against their own interest. In game theory models, logically the two individuals will betray each other continuously. But game theorists do “not claim … that real human players will actually betray each other continuously. In an infinite or unknown length game there is no fixed optimum strategy…”15

For the prosecution, the dilemma is the mandate to seek justice for victims and survivors as well as to protect society, in conflict with the need to dispose of cases, as well as the conflict between the natural impetus to obtain convictions and the need to ensure that real justice is done for the defendant. For the defender, the dilemma is the need to represent vigorously and hold the prosecution’s feet to the hottest fire possible, in conflict with the need to preserve the defender’s utility to future clients whose fate depends on his negotiation skills and relations with prosecutors. For the innocent accused, the dilemma is whether to roll the dice or to plead guilty when really innocent, to avoid a much harsher sentence.

For the culpable accused, the dilemma is whether to snitch on co-defendants, a decision informed not only by sentence harshness but by whether this will expose the defendant to danger in prison. As one of the author’s federal clients once explained to him, the client needed the pre-sentence investigation report to be free of any reflection that the client had placed blame on any co-defendants, because his gang members would demand to see that report on his return to prison.

What is clear is that the first snitch to the trough often (but not always) wins the lion’s share of sentencing or charging benefits. In drug conspiracy cases this sometimes means the ringleader who is smart enough to cooperate instantly — to understand the need to give up his partners and subordinates. In many federal drug conspiracy cases everyone cooperates and pleads guilty, but the sentences are determined primarily by the sentencing guidelines after fact bargaining regarding quantities of drugs.

A recent study (2012, draft) attempted to re-create a real-life controlled plea bargain situation, rather than merely asking theoretical responses to a theoretical situation — a common approach in previous research. It placed subjects in a situation where an accusation of academic fraud (cheating) could be made, of which some subjects were in fact by design actually guilty (and knew this), and some were innocent but faced seemingly strong evidence of guilt and no verifiable proof of innocence. Each subject was presented with the evidence of guilt and offered a choice between facing an academic ethics board and potentially a heavy penalty in terms of extra courses and other forfeits, or admitting guilt and accepting a lighter “sentence”. The study found that as expected from court statistics, around 90 percent of accused subjects who were in fact guilty chose to plead. It also found that around 56 percent of subjects who were in fact innocent (and privately knew it) also plead guilty, for reasons including avoiding of formal quasi-legal processes, uncertainty, possibility of greater harm to personal future plans or deprival of home environment due to remedial courses. The authors stated:

Previous research has argued that the innocence problem is minimal because defendants are risk-prone and willing to defend themselves before a tribunal. Our research, however, demonstrates that when study participants are placed in real, rather than hypothetical, bargaining situations and are presented with accurate information regarding their statistical probability of success, just as they might be so informed by their attorney or the government during a criminal plea negotiation, innocent defendants are highly risk-averse.16

The goals of corrective rehabilitation and deterrence seem to have been lost in this elaborate shuffle. There is evidence that harsher sentences and the death penalty do little in the way of deterrence,17 and that in fact longer sentences which expose the offender to more prison culture actually increases recidivism; and some prosecutors including former Attorney General Drew Edmondson have acknowledged that obtaining an acceptable outcome for victims and survivors drives the bargaining process, regardless of deterrent effect. Our corrections system, in the meantime, is overwhelmed and underfunded. Rehabilitative programs are starved. Oklahoma prison guards who face daily dangers make so little money (starting pay is $11.83 per hour) that some 30 percent of prison employees with families qualify for food stamps.18

Arguably, then, plea bargaining as a system is coercive and crude as a driving tool in criminal justice. It arguably is, further, the driving force behind the fact that the freest country on earth has more people in prison per capita than any country on earth. As early as 1978, when our incarceration figures were a fraction of current figures, Yale Law professor John Langbein commented:

There is, of course, a difference between having your limbs crushed if you refuse to confess, or suffering some extra years of imprisonment if you refuse to confess, but the difference is of degree, not kind. Plea bargaining, like torture, is coercive. Like the medieval Europeans, the Americans are now operating a procedural system that engages in condemnation without adjudication.

REAL STRATEGY CONSIDERATIONS FOR THE PRESENT

Nonetheless, both prosecutors and defenders have to live in the now, and the dilemmas do not disappear because the author does not like the system. In every case, different negotiation strategies may apply best to a particular case. A Missouri prosecutor, Joseph W. Vanover, wrote on the differing strategies of competitiveness and cooperation:

The competitive strategy “seeks to force the opposing party to a settlement favorable to the negotiator by convincing the opponent that his case is not as strong as previously thought and that he should settle the case.” One tactic employed by such ne-gotiators is to open with a high initial de-mand. In the criminal setting, this is most apparent when a prosecutor “throws the book” at a defendant by charging crimes more severe than a reasonable jury would support and crimes so trivial and numerous that defense counsel knows the prosecutor will not pursue them to conviction. Throughout the negotiations on a single case, competitive negotiators limit the disclosure of information on the facts of the case and do not reveal their preference and expectation of an outcome. Because the primary objective is to “win” and to force the opponent to “lose,” the few concessions that are made are minor. Further, threats and arguments are often used to reach a favorable settlement. Finally, a competitive negotiator will employ false issues and feign commitment to positions that may be compromised without consequence.

In contrast to competitive negotiators, cooperative negotiators “make concessions to build trust in the other party and encourage further concession on his part.” Such negotiators open with a moderate bid that is barely acceptable to the opponent. When the opponent opens with such a bid, the two negotiators “should determine the midpoint between the two opening bids and regard it as a fair and equitable outcome.” [citations and footnotes omitted]19

Obviously, from a defender’s standpoint, the relative merits of competitive and cooperative strategies depend in part on the strength of the prosecution’s case and the strength of the defender’s defense. But it also depends on the objectives of the prosecutor and defender which may have little to do with the client’s own interests. As Vanover points out, the prosecutor may take a hard line occasionally on a minor case, and force it to trial, just to show passion for justice and that he is a bit “crazy” at times:

To gain better negotiating position, however, the prosecutor may follow through on what is believed by the defense bar as an idle and irrational threat to take a minor case to trial. As one prosecutor put it, “if the defense lawyers think the prosecuting attorney is a little crazy and will spend a ton of money on a case, then the prosecutor’s threats won’t be idle and the defense lawyers will agree to a settlement earlier.”20

It is axiomatic that a lawyer’s readiness to go to trial and thoroughness are a factor in plea negotiations. Similar to a prosecutor’s more complex stratagem just illustrated, a defense lawyer may decide to try to take a high profile case to trial no matter what, partly in order to enhance his future credibility with prosecutors. Vanover’s conclusions are illustrative of how plea bargaining may lose sight of the interests of the public AND of the individual client:

Choosing the best strategy to use becomes complicated when the maximum utility resulting from a series of negotiations is not achieved through the use of the optimal strategy for each singular negotiation. In this situation defense lawyers face an ethical dilemma: should a defense attorney employ the optimal negotiation strategy for the present plea negotiation despite the fact that it will be detrimental to future negotiations with a particular prosecutor or in a particular jurisdiction? In other words, should a defense attorney sacrifice his ability to serve future clients by vigorously serving the interests of his present client?

On the other side of the negotiation process, prosecutors may neglect the interests of the public if they lose sight of the effect a particular negotiation will have on future negotiations by submitting to caseload pressure and granting concessions when threatened by defense counsel with a costly, hard-fought court battle. Similarly, prosecutors, at times, should make an apparently irrational decision to pursue a case by expending excessive amount of time and effort to favorably adjust defense bar expectations. Whatever the situation, it is important to understand that what appears to be a good decision today may turn out to be a bad decision tomorrow.

Ethical rules require absolute diligence by defenders in representing the interests of the individual client. It seems patently wrong for defenders to sacrifice the best interests of an individual client in order to preserve reputation or future effectiveness in negotiations. But in a system wherein the plea bargain process so dominates the criminal justice landscape, can any defense lawyer afford to overlook the forest of future clients and focus only on the tree she represents now?

Fortunately, one imagines, most criminal cases are not whodunits. In the vast majority of criminal cases, the issue is not innocence but rather degree of culpability coupled with criminal history. This author has thus found that the best approach to negotiation involves a recipe combining the competitive and cooperative approaches, starting with a cooperative assumption that the opposing party will be reasonable. It is never wise to assume that a prosecutor’s reputation for being hard-line or unreasonable will be unvarying. In one of the author’s cases, a supposedly intractable and aggressive prosecutor of broad reputation looked at the quantities of a drug distribution case, second offense with a large quantity of marijuana involved, slam-dunk 12-page DEA probable cause affidavit, and ultimately moved from 10 years incarceration to eight years probation on the background equities. That client made an absolutely successful turnaround. The author counts that outcome as no less a victory than many jury verdicts of acquittal.

A defender can negotiate cordially from a position of strength by accurately reflecting to the prosecutor the strength and weaknesses of both sides’ cases. This approach often enhances credibility far more than bluster or attempts to paw the earth. In every case, the defender must balance the approach taken to negotiation keeping foremost in mind the interests of the client served, while recognizing when a cooperative approach will be more or less effective with any particular prosecutor. One cannot purge game theory from the plea bargaining process, but one can play the game ethically in every situation with a clear focus on the forces at work.

Prosecutors may have the temptation to overcharge either in number of counts or in degree of crime in order to force a plea agreement:

“[T]he scarcity of prosecutorial resources, and the corresponding inability to prosecute all cases, creates an inherent motivation to overcharge defendants during plea negotiations. . . . However, for the plea-bargaining process to serve the public fairly, it must be implemented with careful discretion, particularly when evaluating who should be charged and what should be charged, to fairly and accurately reflect the criminal conduct involved. If compromised, the potential for injustice and the specter of coercive plea bargaining move front and center.”21

Prosecutors must have the courage to charge fairly and put in proper balance public or victim cries for retribution with the mitigating and aggravating circumstances, and should avoid iron-clad “policies” for every crime. A former Oklahoma prosecutor, Jon Lagerberg, once said to the author that he would much rather have a skilled and diligent defense attorney opposing him than a lax or unskilled attorney; it made his job much simpler and easier. As a defense attorney I can attest to the same as to prosecutors; I have found that the best negotiations and trial processes occur with responsible, ethical, vigorous prosecutors who have the confidence to do the right thing and administer justice.

That said, the social and political consequences of plea bargaining processes need strong examination by the public and by legislators. While the likelihood of this is not apparent, the interests of justice would be served by implementing rules that require more individualized sentencing in non-capital cases, and by organized ethical and proportionated oversight of the bargaining process. The idea that the right to a trial effectively answers objections to defects in the plea process is explicitly rejected by the U.S. Supreme Court.22 The “shocks the conscience” standard was rejected in Michigan, and should be replaced here by proportional considerations, because a state with mandatory jury sentencing must be better able to account for inflamed passions which may make a sentence disproportionate. Malone v. State, supra, endnote 1, should be revisited in light of the Oklahoma Constitution, and mitigation should be allowed in non-capital jury trials as Judge Chapel urged. We need to reallocate federal resources away from drug enforcement and toward rehabilitative correctional programs that work, to the point of decriminalizing some drug offenses and treating others as psychological and medical problems. Finally, a set of ethical guidelines applicable to both prosecutors and defenders should be developed and specifically tailored for the plea bargaining process, with ethical accountability oversight. The Oklahoma Academy approved such a program, in its 2008 report focusing on corrections,23 but few of its recommendations presented to the Legislature were ever adopted. It is past time to evolve beyond the primitive “hug-a-thug,” to take note of Mental Health Commissioner Terri White’s approach to mental health issues in the criminal justice system, as reflected in her seminal proposal presented to the Oklahoma Academy in 2008, “Our Plan to be Smart on Crime.”24

In the interim, if this is an interim rather than a permanent state of affairs, the plea bargain system of justice needs careful scrutiny. It is a fact that prosecutors, defenders and judges, not to mention the accused, have a lot to gain by such scrutiny.

        

1. 2002 OK CR 14, 58 P.3d 208.

2. Lockett v. Ohio, 438 U.S. 586 (19768) held that in capital cases the Eighth and Fourteenth Amendments require “individualized consideration of mitigating factors.:” However, the plurality in Lockett said: “We recognize that, in noncapital cases, the established practice of individualized sentences rests not on constitutional commands, but on public policy enacted into statutes.... Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases.” Walton v. Arizona, 497 U.S. 639, 682, 110 S. Ct. 3047, 3072, 111 L. Ed. 2d 511 (1990) overruled by Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).

3. Burks v. State, 1978 OK CR 10, 594 P.2d 771, 775.

4. Rea v. State, 2001 OK CR 28, 34 P.3d 148, 149: “Appellant further suggests that we abandon our “shock the conscience” standard of sentence review in favor of a “proportionality” standard, citing People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990), as support. We decline to do so.” As the Milbourn court noted, id. at 2, the “preeminent requirement” in fashioning proper appellate review of sentences is to respect and give purpose to the sentencing scheme promulgated by the legislature. Legislatures, not courts, define punishment. State v. Young, 1999 OK CR 14, at ¶26, 989 P.2d 949. Oklahoma law permits the sentencing body (judge or jury) to impose a sentence anywhere within a specified statutory range. Given that our state Legislature has afforded such broad discretion to the sentencer, our “shock the conscience” standard provides an appropriate scope of review.” Judge Chapel’s vigorous partial dissent that this is so subjective as to be “no standard at all” is worth reading. Id. at 150 et seq.    

5. 22 O.S. §973-975: “After a plea or verdict of guilty in a case where the extent of the punishment is left with the court, the court, upon the suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment, may in its discretion hear the same summarily at a specified time and upon such notice to the adverse party as it may direct.” Okla. Stat. Ann. tit. 22, §973. “No affidavit or testimony, or representation of any kind, verbal or written, can be offered to or received by the court or member thereof in aggravation or mitigation of the punishment, except as provided in the last two sections.” Okla. Stat. Ann. tit. 22, §975 (West).

6. Michael M. O’Hear, “Plea Bargaining and Procedural Justice,” 42 GA. L. REV. 407, 409 (2008).

7. In the year 2000, over 95 percent of cases involving federal convictions were settled through the entry of a guilty plea. Bureau of Justice Statistics, U.S. Dept. of Justice, Compendium of Federal Justice Statistics 2000, 51, 59 (2000). Indeed, as observed by Ronald Wright and Marc Miller, professors of law at Wake Forest University and Emory University respectively, the criminal justice system’s dependence upon the guilty plea structure has greatly increased in recent years:

The proportion of guilty pleas has been moving steadily upward for over 30 years, and has seen a dramatic increase of over 11 percentage points just in the past 10 years, from 85.4 percent in 1991. Indeed, the aggregate national guilty plea rate in federal cases remained under 92 percent until 1997, in line with the rough national norm for all criminal systems of about 90 percent; it is only in the past five years that we have witnessed the rise to a bizarrely high plea rate. In some districts now, the percentage of convictions attributable to guilty pleas reaches over 99 percent.

Ronald Wright & Marc Miller, “Honesty and Opacity in Charge Bargains,” 55 Stan. L. Rev. 1409, 1415 (2003) (citation omitted).

8. 132 .Ct. 1399, 1407 (3/21/2012).

9. However, Alaska has banned plea bargaining since 1975. In 1991, an unofficial study funded by the Alaska State Justice Institute found that the ban on plea bargaining had not caused gridlock. www.ajc.state.ak.us/Reports/plea91Exec.pdf.

10. See www.wikipedia.org/wiki/Incarceration_in_the_United_States.

11. “Oklahoma, in fact, has ranked No. 1 for per capita incarceration of women for years and, according to the latest figures from the Department of Justice, Oklahoma ranks fifth highest in the nation in its overall incarceration rate per capita. With a population of 3.6 million, we have more than 25,000 people behind bars.” Tulsa World, 12/20/2008: http://goo.gl/XS5bK.

12. Puckett v. United States, 556 U.S. 129, 137 129 S.Ct. 142, 1430 (2009).

13. Yant, Marvin: Presumed Guilty, Buffalo, N.Y., Prometheus Books 1991, at 172.

14. The Wikipedia entry on the prisoner’s dilemma poses a slightly different scenario, and also observes that real people behave more cooperatively and altruistically than their self-interest in a game would indicate: “ In this classic version of the game, collaboration is dominated by betrayal; if the other prisoner chooses to stay silent, then betraying them gives a better reward (no sentence instead of one year), and if the other prisoner chooses to betray then betraying them also gives a better reward (two years instead of three). Because betrayal always rewards more than cooperation, rational self-interested prisoners would betray their counterparts, and the only possible outcome for two rational self-interested prisoners is for them to betray each other. The interesting part of this result is that pursuing individual reward logically leads the prisoners to both betray, but they would get a better reward if they both cooperated with each other to stay silent. In reality, humans display a systematic bias towards cooperative behavior in this and similar games, much more so than predicted by simple models of “rational” self-interested action.” http://goo.gl/ZuAIu.

15. Id.

16. http://en.wikipedia.org/wiki/Plea_Bargain Quoting Edkins & Dervan: “The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem,” draft, 2012.

17. See Jeffrey Zilkowsky’s commentary at http://goo.gl/t40lu.

18. “The employees of the Department of Corrections (DOC) deserve a pay raise. Thirty percent of them qualify for food stamps, and 85 percent qualify for the federal free and reduced school lunch program.” Sean Wallace, executive director of Oklahoma Corrections Professionals, column in the Oklahoma Gazette, 3/27/2013. http://goo.gl/E9hqJ.

19. Vanover, Joseph W. (1998), “Utilitarian Analysis of the Objectives of Criminal Plea Negotiation and Negotiation Strategy Choice,” 1998, J. Disp. Resol., p. 183, at 184.

20. Id. at 191-192.

21. Caldwell, H. Mitchell (2011), “Coercive Plea Bargaining: the Unrecognized Scourge of the Justice System,” 61 Catholic Law Review 63, at 63 and 65.

22. Missouri v. Frye, supra, at 1407.

23. http://okacademy.org/PDFs/08Final_Findings.pdf.

24. http://okacademy.org/PDFs/2008-research.pdf At 127. This entire 160-page report needs to be revisited by any concerned advocate or citizen.



ABOUT THE AUTHOR



Jim Drummond practices criminal defense in Norman, handling trials and appeals in federal and state courts. Previously he has worked as a state and federal public defender. He is currently panel coordinator for the OBA Legal Ethics Advisory Panel. He was the inaugural chairperson of the OBA Criminal Law Section, and also serves on the boards of the Oklahoma Criminal Defense Lawyers Association and the Oklahoma County Criminal Defense Lawyers Association. He was a member of the Oklahoma Sentencing Commission from 2001-2006.