Small: Evidence of a two-tiered justice system

Evidence of a two-tiered justice system

By Jonathan Small

Since the U.S. Supreme Court handed down its controversial 5-4 decision in McGirt v. Oklahoma in 2020, it has reduced public safety in Oklahoma.

Oklahomans get a reminder of that sad reality this month as the child rapist who prompted the case is set to be free—something that would never have happened in the Oklahoma court system.

Jimcy McGirt was tried in an Oklahoma state court and found guilty in 1997 of first-degree rape by instrumentation, lewd molestation, and forcible sodomy. His victim was four years old. The crime was so extreme he was sentenced to 500 years in prison and life in prison without parole. 

But years later McGirt’s attorneys argued that Oklahoma courts lacked jurisdiction to hear his case because McGirt is a member of the Seminole Nation of Oklahoma and because his crimes occurred within the historic boundaries of the Muscogee (Creek) Nation’s pre-statehood reservation. McGirt’s team argued the reservation was never formally dissolved, despite over a century of evidence to the contrary.

Yet the U.S. Supreme Court sided with McGirt and effectively recreated several tribal reservations across most of eastern Oklahoma when dealing with federal major crimes law, including much of the Tulsa area.

After the 2020 ruling, McGirt’s state sentence was vacated and his case tried in federal court. That process ended with McGirt sentenced to only 30 years with credit for time served.

That alone highlights the impact of the McGirt ruling. A crime that merited a 500-year sentence in an Oklahoma court now gets only 30 years in a federal court. But it’s worse than that.

Not only was McGirt’s prior incarceration in state prison deducted from the 30-year federal sentence, but he was also granted a 15-percent credit for every year served. As a result, McGirt will soon be released having not even served 30 years for his crime.

Gov. Kevin Stitt recently noted the McGirt decision means Oklahoma has “a two-tiered system of justice now, depending on your race.” The governor noted that in another case three men assaulted an 85-year-old victim. Two of the men are still in prison, but the third is free due to the McGirt ruling. Noting that the men committed “the same crime on the same day” but were treated differently by the court system due to race, Stitt said that outcome does not provide “justice for all.”

Sadly, until additional litigation gives the courts the opportunity to correct the McGirt mistake, such unjust outcomes will continue to occur. The same rules should apply to all Oklahomans. But under the McGirt ruling, they don’t, and the repercussions are far reaching.

Jonathan Small serves as president of the Oklahoma Council of Public Affairs.