Okla. AG: SCOTUS decision supports re-arrest of people released from prison because of McGirt case

TULSA, Okla. — Anyone released from prison because of the Supreme Court’s McGirt decision must be taken back into custody, Oklahoma’s Attorney General told FOX23 News.

The re-arresting of many people let out of prison while awaiting for new trials was already underway when the Oklahoma Court of Criminal Appeals ruled that McGirt was not retroactive, but those still out of custody who have been convicted and have a sentence left to serve no longer have the right to be free after the Supreme Court left in place the Court of Criminal Appeals ruling by refusing to take up the issue of retroactivity.

“It was actually decided many months ago, and when that decision came down, we started re-arresting people,” Oklahoma Attorney General John O’Connor said.

O’Connor said his office sent out new guidance to district attorneys in Indian Country about how to handle the re-arresting of previously convicted criminals who still had time left on their sentences.

The case that was pending before the U.S. Supreme Court was that of Clifton Parish, a person with Indian blood previously convicted of murder in Hugo which sits within the historic boundaries of the Choctaw Nation. Parish was already re-indicted last May in Federal court for the crime he was previously convicted for, but the questions raised on his appeal on the state level remained.

The “Parish case” was rejected for hearing before the Supreme Court last week.

“We’re providing resources for the district attorneys so they can go back, re-apprehend those people, and then ask that the vacation of the judgment and sentence be reinstated,” O’Connor said.

O’Connor said things get complicated when it comes to people who have time left of their sentences because he doesn’t believe their time out of prison should count towards their time served while retroactivity was being discussed, but he also said it was up to district attorneys to decide if time in a county jail while arrangements were being made to return someone to prison would count as time served.

The State of Oklahoma has other appeals pending before the Supreme Court. One of them is asking the court to reconsider the entire McGirt decision, and the other asks the court to clarify if McGirt only applied to criminal matters, or if civil law was also impacted by the previous decision that re-established tribal boundaries and a tribe’s jurisdiction over their own lands.

It is estimated more than 200 people were set free because of the McGirt decision. Many of those who committed violent crimes were facing or had already had new trials in tribal or Federal court. Others had committed non-violent crimes and were nearing the end of their sentences when McGirt came down. It’s not clear how many people are still needing to be re-arrested now that McGirt has officially been declared to be not retroactive.

Tulsa County District Attorney Steve Kunzweiler said in a statement to FOX23 that he was not going to seek credit for time served for anyone who spent time out of prison during this ordeal.

“I want them to pick up right from where they left off,” Kunzweiler said.

Any cases pending in Federal or tribal court are expected to revert back to the conviction and sentence previously pronounced in part so an overwhelmed system can get back to focusing on new crimes that need to be prosecuted under McGirt, he said.

“The heavy lifting is now approaching the court and asking the court to remand these people back to the Oklahoma Department of Corrections,” Kunzwieler told FOX23. “We and the other DA’s are in the middle of that process.”

He went on to say the determination that McGirt was not retroactive puts crime victims at ease that they won’t have to sit through another trial where they will have to relive the details of the case and face the chance that the defendant could be set free.

“That decision put a lot of victims at ease that they would not have to relitigate the case and possibly not get any justice,” he said.

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