THE SENTENCE ENTERED AGAINST THE OFFENDER. THERE IS NOTHING THAT EVIDENCES THAT THE LEGISLATURE MUST REQUIRE THE HOUSING OR CONFINEMENT OF OFFENDERS ONLY BEHIND PRISON WALLS.
THE OKLAHOMA COURT OF CRIMINAL APPEALS HAS PREVIOUSLY REVIEWED AN EARLIER PROGRAM, WHICH WAS CREATED TO ALLEVIATE PRISON OVERCROWDING, THE PREPAROLE CONDITIONAL SUPERVISION PROGRAM (PPCS), 57 O.S. 365 (1991). THE PPCS PROGRAM REQUIRED THAT THE DEPARTMENT OF CORRECTIONS AND THE PARDON AND PAROLE BOARD TO IMPLEMENT A PREPAROLE CONDITIONAL SUPERVISION PROGRAM TO REMEDY OVERCROWDING ONCE THE CAPACITY REACHED 92.5%. THIS PROGRAM ALSO ALLOWED OFFENDERS TO "LIVE OUTSIDE INSTITUTIONAL FACILITIES." BARNETT V. MOON, 852 P.2D 161, 163 (OKL.CR. 1993). THE COURT WAS ASKED TO DETERMINE THE RIGHTS OF OFFENDERS WHO WERE FIRST PLACED ON THE PROGRAM THEN REMOVED FOR MISBEHAVIOR AND RETURNED TO A PRISON FACILITY. IF OFFENDERS WERE CONSIDERED TO BE IN PAROLE STATUS, THEN THEY WOULD HAVE BEEN ENTITLED TO A HEIGHTENED LEVEL OF DUE PROCESS BEFORE THEIR RETURN TO MORE RESTRICTIVE CUSTODY. SEE MORRISSEY V. BREWER, 408 U.S. 471,92 S.CT. 2593, 33 L.ED.2D 484 (1972). THE COURT AFTER REVIEWING THE PPCS PROGRAM DECLINED TO REQUIRE THE HIGHER LEVEL OF DUE PROCESS, CONCLUDING THAT OFFENDERS WERE NOT ON PAROLE STATUS MERELY BY PLACEMENT IN A COMMUNITY SETTING. THE COURT STATED THAT "THE DEGREE OF CONFINEMENT IS OF NO CONCERN TO THIS COURT, SO LONG AS AN ADMINISTRATIVE PROCEDURE AFFORDS A METHOD BY WHICH THE DECISION TO CHANGE THE DEGREE OF CONFINEMENT CAN BE JUSTIFIED." BARNETT AT 164. THE COURT'S ANALYSIS NECESSARILY GAVE GREAT DEFERENCE TO THE LEGISLATIVE CHARACTERIZATION OF THE "DEGREE OF CONFINEMENT."
SIMILARLY, IN ANSWERING YOUR QUESTION, WE WOULD ANTICIPATE THAT A REVIEWING COURT WOULD ANALYZE WHETHER THE ACT CREATED A CONDITIONAL RELEASE OR CONDITIONAL DISCHARGE FROM THE JUDGMENT AND SENTENCE OF OFFENDERS WHO BECAME SUBJECT TO THE SPECIALIZED SUPERVISION PROGRAM. WE BELIEVE THE COURT WOULD FIND THAT AN ADMINISTRATIVE CHANGE IN THE DEGREE OF CONFINEMENT BY PLACEMENT IN A COMMUNITY SETTING DOES NOT INFRINGE UPON THE CONSTITUTIONAL AUTHORITY OF THE GOVERNOR, WITH THE RECOMMENDATION OF THE PARDON AND PAROLE BOARD, TO GRANT-CLEMENCY.
IT IS THEREFORE THE OPINION OF THE UNDERSIGNED THAT A COURT OF PROPER JURISDICTION WOULD FIND THAT THE PRISON POPULATION MANAGEMENT ACT OF 1993, AND CODIFIED AT 57 O.S. 610 AND 57 O.S. 611 (1993), WHICH AUTHORIZES THE DEPARTMENT OF CORRECTIONS TO ADJUST THE DEGREE OF CONFINEMENT OF OFFENDERS UNDER THEIR JURISDICTION WHEN THE PRISON POPULATION EXCEEDS 97.5% OF AUTHORIZED CAPACITY, DOES NOT VIOLATE ARTICLE VI, SECTION 10 OF THE OKLAHOMA CONSTITUTION. THE ACT DOES NOT, AS A MATTER OF LAW, INFRINGE UPON THE AUTHORITY OF THE GOVERNOR, WITH APPROVAL OF THE PARDON AND PAROLE BOARD, TO GRANT COMMUTATIONS, PARDONS OR PAROLES.
THE OPINIONS EXPRESSED HEREIN ARE THOSE OF THE UNDERSIGNED AND DO NOT CONSTITUTE AN OFFICIAL OPINION OF THE ATTORNEY GENERAL. WHETHER IN ITS APPLICATION THE SPECIALIZED SUPERVISION PROGRAM, AS ADMINISTERED BY THE DEPARTMENT OF CORRECTIONS, OPERATES FUNCTIONALLY AS PAROLE INVOLVES THE DETERMINATION OF FACTUAL ISSUES WHICH ARE BEYOND THE SCOPE OF THIS OFFICE.
(GUY L. HURST)