Exploring prosecutorial discretion in Oklahoma: A case study of non-enforcement of adultery laws

Prosecutorial discretion allows Oklahoma district attorneys to repeal criminal statutes passed by the state legislature. However, such action could create a violation of the separation of powers doctrine contained in the state constitution. In this research, the discretionary power of district attorneys was analyzed as it applies to the Oklahoma adultery statute that defines adultery as a felony crime. Despite the statute, this crime has not been prosecuted by a district attorney in over 50 years. To investigate this phenomenon, research data were derived from interviews and surveys conducted with a purposive sample of eight district attorneys, 12 police departments, and eight district courts representing both metropolitan and rural areas of the state. Data analysis led to an understanding of the internal and external influences that drive prosecutorial discretion. It was found that district attorneys are not specifically utilizing prosecutorial discretion to repeal the adultery statute. Consequently, there was no violation of the state constitution by the district attorneys' offices. Although internal and external influences do have a positive relationship to case selection, this lack of prosecution was due to insufficient reporting of the crime from law enforcement agencies. This finding does not imply that citizens are not reporting the crime, rather that law enforcement agencies have not investigated and forwarded such cases to the district attorneys. Future research should be conducted in the area of local law enforcement to examine how police and sheriff's departments respond to the initial reporting of allegations of adultery. Because the law is not serving its original purpose, the Oklahoma state legislature should act to repeal the state statute related to adultery.