Group Takes Aim At Oklahoma’s Failure-To-Protect Law

After Robert Braxton Jr. was convicted of beating his girlfriend’s children, he was sentenced in 2006 to probation and two years already served in jail while awaiting trial for the abuse, which included choking, punching and breaking the femur and ribs of a 3-month-old daughter.

The children’s mother, Tondalao Hall, was never accused of hurting her kids. But her penalty was much harsher: 30 years in prison for failing to tell authorities about the abuse. She could be incarcerated into her 50s and miss their childhoods altogether while their abuser moved on long ago.

The state’s Pardon and Parole Board recently declined to shorten the sentences of Hall and three other women with similar stories, alarming women’s rights groups and bringing attention to failure-to-protect laws in Oklahoma and a few other mostly conservative states that critics say can lead to harsher punishments for abused and frightened mothers than for child abusers themselves.

“That’s a pattern that we’re seeing all too often,” said Megan Lambert, a staff attorney for the American Civil Liberties Union of Oklahoma, which represents Hall, who she says Braxton also beat and psychologically abused her.

Every state has laws designed to protect children, but only six — Oklahoma, Missouri, Nebraska, Nevada, South Carolina and West Virginia — have failure-to-protect laws or similar child abuse statutes that carry possible life sentences, though Texas’ equivalent carries a maximum 99-year term.

Oklahoma’s law also doesn’t make exceptions for parents who don’t report abuse out of fear for their own safety and is disproportionately applied to the mothers of abused children, Lambert said. This has contributed to the over-incarceration of women in Oklahoma, which has the country’s highest female incarceration rate, at more than twice the national average.

“Tondalao Hall and her children deserve the justice of her freedom,” she said.

Former Oklahoma House Speaker Kris Steele, a member of the parole board who cast the sole vote to commute the sentences of Hall and the other three women, said two out of three women in Oklahoma prisons are victims of abuse.

“The individual under consideration was actually a victim of intimate partner violence, and yet they’re treated as the offender,” said Steele, who now heads Oklahomans for Criminal Justice Reform, a group that supports policies that create alternatives to prison and keep families together.

Failure-to-protect laws, like child neglect and endangerment statutes, are designed to protect vulnerable children from abuse and harm but have unintended consequences, said Danielle Ezell, a board member for Oklahomans for Criminal Justice Reform, which plans to ask the Legislature to amend state laws to prevent abused women from being penalized for being unable to protect their children from abusers.

“Women are being sentenced to two times, three times, four times the amount that the abuser was,” said Ezell, adding that these lengthy sentences break up families and force taxpayers to support the inmate and their children.

“Maybe we’re doing more harm than good,” she said.

Trent Baggett, the executive coordinator of the Oklahoma District Attorney’s Council, which supports the state’s 27 elected district attorneys, said he thinks that in cases like Hall’s, it’s appropriate to seek a modified sentence. But he also said failure-to-protect laws were put in place for a reason, and he pointed out that offenders are subject to a range of sentences, depending on the severity of the offense.

“As a parent of a child, you have an obligation to protect that child,” Baggett said. “The Legislature has said if you don’t protect your child, that’s a problem.”

Although Oklahoma’s failure-to-protect law doesn’t account for parents who are also being abused and the ACLU has failed to persuade the judge who presided over Hall’s case to reduce her sentence, there have been instances in which judges have done just that.

In 2014, then-Oklahoma County District Judge Kenneth Watson dramatically reduced the 35-year prison sentence he gave to a woman who pleaded guilty to enabling child abuse in the beating death of her 3-year-old daughter after hearing testimony during her boyfriend’s trial about the abuse she endured. The boyfriend, who killed the girl, was sentence to life in prison without the possibility of parole. But Watson reduced the mother’s sentence, enabling her to go free after just two years.