All Oklahomans must abide by the same laws. If you break the law, you’re sentenced according to the same statutes. In theory, this should mean that people convicted of a crime in urban Oklahoma County will receive a similar punishment to those in rural Cimarron County, and those on the Arkansas border in Sequoyah County will be treated the same as those on the Western border in Harmon County. 

In practice, however, a person’s chances of being charged with a felony or going to prison vary widely from courthouse to courthouse. That’s because prosecutors — which include District Attorneys and their assistants — have nearly unchecked power to decide whether to bring criminal charges against people who are arrested, what to charge them with, and, consequently, how severely they’re punished. That means the same crime can result in a lengthy prison sentence or a lenient probation period, depending on the county and the prosecutor in charge of the case. While this power — called “prosecutorial discretion” — is meant to allow flexibility in differing circumstances from case to case, new research suggests that it has played a major role in the growth of incarceration rates across the country.

Mapping disparities in outcomes across Oklahoma

Prosecutors can choose from a wide range of options in each case, especially when dealing with the most common low-level drug and theft offenses. If a person is caught with a small amount of drugs in a plastic baggie and a pipe, for instance, a prosecutor may choose to file misdemeanor charges and ask for probation, or offer a deferred sentence, allowing the defendant to keep the conviction off their record if they stay out of trouble for a period of time. Alternatively, the prosecutor could feasibly charge the same person with the more serious crime of Possession with Intent to Distribute, as well as Possession of Drug Paraphernalia, asking for a prison sentence of 3 years if the person pleads guilty and threatening as many as 10 years in prison if they go to a jury trial. 

County-level data from the Oklahoma Supreme Court and the Department of Corrections reveal distinct patterns in how prosecutors exercise this discretion in charging cases and pursuing sentences, illustrated in the maps below. Counties in the Southwestern corner of the state, for example, send people to prison at far higher rates than those in the Northeastern part of the state. Despite having higher than average rates of crime, Oklahoma and Tulsa Counties are close to average in the rate of prison admissions.

Some disparities show major differences in how often cases are charged as felonies rather than misdemeanors: In FY 2015, for example, Kay County and Cherokee County had similar populations and similar numbers of total criminal cases filed. Despite this, Kay County filed about 3,100 felonies per 100,000 residents, while Cherokee County filed only 1,700 per 100,000 residents.

These disparities extend to prison admissions. Between 2012 and 2015, for example, Cotton County sent people to prison for drug possession at a rate of 244 per 100,000 residents, two and a half times the rate of the next highest county.

These numbers cannot be explained simply by differences in crime or arrests; there are significant differences between counties with similar rates of crime. There are even wide disparities among counties within the jurisdiction of the same District Attorney, suggesting that Assistant District Attorneys are making many of the decisions in how to prosecute cases with little effort towards standardization from their elected superiors.

All of this means that justice is applied unevenly throughout the state and that major decisions about whether a defendant will spend years in prison are being made based largely on the personal attitudes of the prosecutor in charge of their case. While this problem isn’t unique to Oklahoma, it does raise difficult questions as the state attempts to reduce its prison population.

Confronting prosecutorial discretion is easier said than done

The concept of prosecutorial discretion is deeply entrenched in the American criminal justice system, and it has broad implications for criminal justice policy. While removing mandatory minimum sentences may help at the margins to keep people from prison, prosecutors must choose to pursue those lower sentences for changes in the law to be effective. A prosecutor who wants to send a defendant to prison is unlikely to change his or her mind because the penalty range is 0 to 5 years rather than 2 to 5 years.

That’s why, in recent years, justice reform efforts in many cities have turned from changing laws to changing prosecutors. Some jurisdictions — mainly in large cities — have started electing prosecutors who promise a less punitive approach to their jobs. Some successful candidates have also promised to address racial disparities in the justice system.

Electing reform-minded prosecutors probably remains a long shot for most of Oklahoma, but there are ways to reduce incarceration without changing the behavior of prosecutors: opening up our broken parole system, rewarding good behavior on probation, and improving access to treatment-based alternatives to incarceration are great places to start. Unfortunately, those ideas were proposed in this year’s legislative session and failed, facing outspoken opposition from several District Attorneys and held up in committee by Rep. Scott Biggs, a former Assistant District Attorney himself. 

The data reflect that District Attorneys and their staffs differ widely in their beliefs and behaviors. However, in using their discretion to send people to prison at high rates, and flexing their political muscle to scuttle reform, more punitive attitudes have clearly ruled the day in Oklahoma — even though this approach is extremely expensive, unpopular with the general public, and not effective at reducing crime. Prosecutorial discretion may be a fact of life in the justice system, but it also presents a major obstacle against efforts to actually make our state safer.