Oklahoma sex offender spared by Supreme Court sent back to prison

MUSKOGEE, Okla. (CN) — An Oklahoma man whose state child rape conviction was tossed by the U.S. Supreme Court on a tribal sovereignty technicality — leading to a flood of convicts demanding their release — was sent back to federal prison Thursday for 45 months for living with children and near a playground.

Chief U.S. District Judge John Heil sentenced Jimcy McGirt, 77, on one count of failure to register as a sex offender. The Donald Trump appointee was incredulous at how McGirt had been released for less than three months before getting arrested again near children.

McGirt was released from federal prison in May of 2024 after pleading guilty to one count of aggravated sexual abuse on tribal land involving the rape of his 4-year-old granddaughter.

He was sentenced weeks before that release to 30 years in federal prison after a plea deal was reached with prosecutors, but McGirt had already been in state and federal custody for 27 years and was purportedly issued a 15% credit by the Federal Bureau of Prisons for each year he had served.

Heil cited Thursday his “grave concern” over how McGirt lived with three minors after his release without registering and how he lived within 2,000 feet of a playground or park. The judge said McGirt’s claim of being a changed man since his release “is a risk I cannot take.” He acknowledged how this time McGirt is pleading guilty to failure to register without a plea agreement.

McGirt stood chained before the judge in a yellow prison jumpsuit, flanked by his attorneys. Approximately two dozen spectators were seated in the gallery.

Prosecutors asked the judge for over 80 months of prison, while defense attorneys asked for 21 months within federal sentencing guidelines. Prosecutors argued McGirt did not deserve one more chance, citing two previous probation violations dating back to the 1970s and how he went AWOL from the Marines three times after enlisting. They told the judge McGirt is a “habitual child molester,” citing a previous child rape conviction involving the sodomy of an 8-year-old boy and his 5-year-old brother that resulted in a five-year state prison sentence.

The Seminole Nation Lighthorse Police responded to a kidnapping attempt call on Aug. 31, 2024, after a group of children told their parents a man approached them, asking questions about where they live and if they have food in their homes. Police said the investigation led them to McGirt, who they say claimed he had notified his probation officer he was staying at a house there until his broken-down car was fixed. The probation officer purportedly denied being told, resulting in McGirt’s latest arrest.

McGirt was first convicted of the first-degree rape of his granddaughter in Oklahoma state court in 1997 and sentenced to two 550-year terms. Two decades later, McGirt made the novel argument on federal appeal that Oklahoma lacked jurisdiction to try him because the crimes took place on Muscogee (Creek) Nation land while McGirt himself is a member of the Seminole Nation of Oklahoma.

In a surprising 5-4 ruling in 2020, the Supreme Court agreed and tossed McGirt’s conviction. The court concluded in McGirt v. Oklahoma that the case should have been tried in federal court because Congress never dissolved the reservations allotted to Native Americans who were forcibly relocated from the southeastern United States during the Trail of Tears beginning in the 1830s. Approximately half of Oklahoma is recognized as tribal land, predominately in the east and southeast portions of the state. Up to 15% of Oklahomans identify as Native American.

The strain of McGirton Oklahoma’s criminal justice system was immediate, as inmates who were convicted in state court under similar circumstances filed appeals arguing Oklahoma lacked jurisdiction in their cases also.

Then-Oklahoma Attorney General Mike Hunter quickly sought to reassure the public, vowing to fight “every single” McGirtappeal.

“The McGirtcase does not constitute a get-out-of-jail free card,” Hunter said at the time. “We are not going to allow our justice system to be exploited by people who have murdered, raped or committed other crimes of a serious nature while the federal government considers to re-arrest or adjudicate their cases.”

McGirtput pressure on federal prosecutors, who were tasked with quickly filing federal charges against convicts with pending appeals in state court. Former Tulsa cop Shannon Kepler, serving 15 years in state prison for manslaughter in the killing of his daughter’s 19-year-old boyfriend, received a federal murder indictment in 2020 after his McGirt appeal backfired.

A Tulsa federal jury convicted Kepler in 2021. He was sentenced to 25 years in federal prison a year later.

In another high-profile case, the Oklahoma Court of Criminal Appeals — the state’s highest criminal appeals court — tossed the conviction of death row inmate Shaun Bosse, 41, in 2021. He was convicted in 2012 of killing his girlfriend and her two young children in a mobile home south of Oklahoma City on Chickasaw Nation land. Bosse’s victims were tribe members, while he was not.

Bosse stayed on death row because later that year, the Oklahoma Court of Criminal Appeals ruled McGirtdid not apply retroactively. In a 4-0 ruling, the court held a lower court’s tossing of a murder conviction on Choctaw Nation land was “unauthorized under state law” in spite of McGirt. The court cited the “disruptive and costly consequences” for crime victims in its ruling and urged state leaders, tribal leaders and Congress to settle the issue.

A gridlocked Congress has failed to pass legislation since McGirtthat would allow Oklahoma and individual Native American nations to share criminal jurisdiction.

The Supreme Court refused Oklahoma’s request to reconsider McGirt in 2022, but it did issue a narrow exception in Oklahoma v. Castro-Huerta that state and federal governments share jurisdiction to prosecute defendants who are not Native Americans for crimes on tribal lands.

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