Also known as: arbitrarily and discriminatorily enforced · selective enforcement · discriminatory enforcement
Written by attorneys — see sources below.
A constitutional requirement under the Due Process Clause that penal laws supply explicit standards for enforcement. The requirement prevents officers from exercising unguided discretion when deciding whom to target or how to apply the law.
Andre Antoine, a defense lawyer, spoke to reporters about an ongoing trial. A disciplinary rule barred statements creating a substantial likelihood of material prejudice but allowed statements made without elaboration. The bar pursued Antoine while ignoring similar comments by prosecutors. The vague safe-harbor language left officers free to choose targets based on viewpoint.
Anthony Arnold, a day laborer, waited on a public sidewalk for a ride after work. Police arrested him under a vagrancy ordinance that criminalized being abroad without visible means of support. The same officers ignored nearby office workers doing the same thing. Without objective standards the ordinance permitted enforcement based on appearance or status.
The case involves eight defendants convicted under a Jacksonville, Florida vagrancy ordinance. Margaret Papachristou, Betty Calloway, Eugene Eddie Melton, and Leonard Johnson were arrested early on a Sunday morning and charged with vagrancy by prowling by auto while riding in Calloway's car after leaving a restaurant. Jimmy Lee Smith and Milton Henry were charged with vagrancy as vagabonds after being stopped while waiting for a friend to lend them a car for a job application. Henry Edward Heath and a codefendant were arrested for loitering and common thief when they arrived at a residence. Thomas Owen Campbell was charged with being a common thief after being stopped for speeding near his home. Hugh Brown was charged with disorderly loitering on the street and resisting arrest with violence after leaving a hotel. The ordinance defined vagrants to include rogues and vagabonds or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame gaming houses or places where alcoholic beverages are sold or served, and persons able to work but habitually living upon the earnings of their wives or minor children. The facts of the arrests were stipulated by the parties. Papachristou was enrolled in a job-training program, Calloway was a teacher and owned the car, Melton was a Vietnam veteran and student, and Johnson was a warehouse worker and lifelong resident. Smith was a part-time worker and political organizer with a common-law wife and children, while Henry was a high school student. Heath had lived in Jacksonville all his life and worked at an automobile body shop. Campbell reached his home early in the morning. Brown was observed leaving a downtown hotel and was reputed to be a thief and narcotics pusher, with packets of heroin found during the search. All eight defendants were convicted in the municipal court. Their convictions were affirmed by the Florida Circuit Court in a consolidated appeal. The Supreme Court granted certiorari to consider the challenges to the ordinance.
View caseAaron Adams, a corporate executive, arranged a favor for a supplier without taking personal payment. Prosecutors charged him under the honest-services statute for depriving the company of his undivided loyalty. The statute's undefined reach allowed prosecutors to select cases based on political visibility rather than clear statutory criteria.
Enron Corporation, founded in 1985 and headquartered in Houston, grew into one of the nation’s largest energy companies. Jeffrey Skilling joined in 1990 and rose to become president and chief operating officer before serving as chief executive officer from February 2001 until his resignation in August 2001. Less than four months later, Enron declared bankruptcy, and its stock price, which had reached $90 per share in 2000, fell below $1. A Department of Justice task force investigated the collapse and uncovered evidence of a scheme to overstate the company’s financial performance. On July 7, 2004, a grand jury indicted Skilling, Lay, and Richard Causey, Enron’s former chief accounting officer. These three defendants, the indictment charged, engaged in a scheme to deceive investors about Enron’s true financial performance by manipulating its publicly reported financial results and making false and misleading statements. Count 1 of the indictment charged Skilling with, inter alia, conspiracy to commit “honest-services” wire fraud, 18 U. S. C. §§371, 1343, 1346, by depriving Enron and its shareholders of the intangible right of his honest services. The indictment also charged securities fraud, wire fraud, false statements to auditors, and insider trading. Skilling moved in November 2004 to transfer the trial from Houston due to extensive negative pretrial publicity, submitting hundreds of news reports and expert affidavits on community attitudes. The district court denied the motion after finding the coverage largely objective. The court mailed a 77-question questionnaire to 400 prospective jurors and conducted individual voir dire in January 2006 after Causey pleaded guilty in December 2005. Following a four-month trial, the jury convicted Skilling on 19 of 28 counts, including the honest-services conspiracy count, and the court imposed a sentence of 292 months’ imprisonment. Skilling appealed to the Fifth Circuit, which affirmed the convictions in 554 F. 3d 529. The Supreme Court granted certiorari to review challenges to the honest-services conviction, the venue ruling, and the voir dire process.
View caseAlbert Allen stood on a Chicago sidewalk talking with two acquaintances. Officers ordered him to disperse under an ordinance that prohibited remaining in one place with no apparent purpose. The officers enforced the rule only against young Black men while allowing other groups to gather. The ordinance supplied no objective measure of purpose and invited selective application.
In 1992 the Chicago City Council enacted the Gang Congregation Ordinance after hearings revealing that gang members intimidated residents by loitering in public places. The ordinance made it unlawful for any person to loiter in a public place with one or more persons knowing that at least one of those persons was a criminal street gang member. The ordinance defined loitering as remaining in any one place with no apparent purpose. It required a police officer who reasonably believed a person to be a gang member loitering with others to order the entire group to disperse, and failure to obey the order was punishable by a fine of up to $500, imprisonment for not more than six months, or up to 120 hours of community service. Two months after enactment the Chicago Police Department issued General Order 92-4 to provide guidelines to govern its enforcement. The order confined arrest authority to members of the Gang Crime Section and other designated officers, established criteria for identifying street gangs and membership, and directed district commanders to designate enforcement areas where gang presence had a demonstrable effect on law-abiding persons. Those designated areas were not released to the public. During the three years the ordinance was enforced, officers issued more than 89,000 dispersal orders and arrested more than 42,000 people. Respondent Jesus Morales and other individuals were charged with violating the ordinance. Trial courts divided on its constitutionality, with some judges upholding it while eleven others ruled it invalid. The Illinois Appellate Court consolidated the cases, affirmed the invalidations, and reversed convictions in the remaining matters. The Illinois Supreme Court affirmed, and the United States Supreme Court granted certiorari.
View caseAndrew Avery picketed outside a school during class hours. Police arrested him under an ordinance banning any noise that disturbs the peace of the school. The ordinance gave officers no measurable standard for disturbance and was enforced only against demonstrators critical of school policy.
Negro students at West Senior High School in Rockford, Illinois, first presented their grievances to school administrators, but when the principal took no action on crucial complaints, a public demonstration was planned, leading approximately 200 people including students, their family members, and friends to gather next to the school grounds on April 25, 1969. Appellant Richard Grayned, whose brother and twin sisters were attending the school, participated in this group that marched on a sidewalk about 100 feet from the school building, with many carrying signs summarizing the grievances such as "Black cheerleaders to cheer too," "Black history with black teachers," and "Equal rights, Negro counselors," while others made the "power to the people" sign with upraised and clenched fists. At Grayned's trial, government witnesses reported that the demonstrators repeatedly cheered, chanted, baited policemen, and made noise audible inside the school, that hundreds of students were distracted from their school activities and lined the classroom windows to watch the demonstration, that some demonstrators successfully yelled to their friends to leave the school building and join the demonstration, and that uncontrolled latenesses after period changes were far greater than usual. Defense witnesses claimed that the demonstrators were at all times quiet and orderly, that they did not seek to violate the law but only to "make a point," that the only noise was made by policemen using loudspeakers, that almost no students were noticeable at the schoolhouse windows, and that orderly school procedure was not disrupted. After warning the demonstrators, the police arrested 40 of them, including appellant Grayned, who was then tried and convicted of violating the antipicketing ordinance and the antinoise ordinance, resulting in a $25 fine for each violation. Grayned appealed directly to the Supreme Court of Illinois under Ill. Sup. Ct. Rule 302, claiming that the ordinances were invalid on their face, although he did not argue that they punished constitutionally protected activity as applied to him. The Supreme Court of Illinois held both ordinances constitutional on their face in 46 Ill. 2d 492, 263 N. E. 2d 866 (1970), and the United States Supreme Court noted probable jurisdiction in 404 U. S. 820 (1971).
View caseAngela Acosta, a state official, accepted tickets to a sporting event from a lobbyist. Federal prosecutors charged her under the honest-services statute for accepting an undisclosed benefit. The statute's broad language allowed prosecutors to pursue cases based on the target's political affiliation rather than a fixed definition of bribery.
In November 2009 Robert McDonnell was elected the 71st Governor of Virginia. His campaign focused on promoting business in the state. He spoke about economic development on a daily basis while attending numerous events and referring constituents to meetings with staff and other officials. Shortly after the election Williams had dinner with Governor and Mrs. McDonnell. Williams was the CEO of Star Scientific, a Virginia-based company that developed and marketed Anatabloc, a nutritional supplement made from anatabine. Star Scientific hoped Virginia's public universities would undertake research studies on anatabine pursuant to a grant from Virginia's Tobacco Commission. Over the next two years Williams provided the McDonnells with more than $175,000 in gifts and loans. McDonnell arranged meetings for Williams with state health officials including Dr. Hazel. He hosted a lunch event for Star Scientific at the Governor's Mansion in August 2011. He also directed staff to forward materials and emails regarding Anatabloc research issues at state universities. Additional interactions included a March 2012 meeting with administration officials where McDonnell discussed Anatabloc. In January 2014 the Federal Government indicted McDonnell and his wife Maureen on one count of conspiracy to commit honest services fraud, three counts of honest services fraud, one count of conspiracy to commit Hobbs Act extortion, six counts of Hobbs Act extortion, and two counts of making a false statement. The indictment alleged that McDonnell accepted the benefits in exchange for performing official actions on an as-needed basis to promote Star Scientific's products. Mrs. McDonnell faced similar charges plus one count of obstructing official proceedings. The case proceeded to a five-week jury trial in the Eastern District of Virginia. At trial Williams testified under an immunity agreement that he provided the benefits to obtain help with testing Anatabloc. McDonnell acknowledged requesting loans and accepting gifts but testified that arranging meetings was routine and that he expected staff only to meet with Williams. Several state officials testified they discussed Anatabloc but took no further action. The district court instructed the jury that official acts include acts a public official customarily performs, including those in furtherance of longer-term goals. McDonnell requested but was denied an instruction that merely arranging meetings or hosting events does not alone constitute an official act. The jury convicted Governor McDonnell on the honest services fraud and Hobbs Act extortion charges, but acquitted him on the false statement charges. The District Court sentenced him to two years in prison. Following the verdict McDonnell moved to vacate the convictions, arguing the jury instructions were erroneous. He also moved for acquittal on grounds of insufficient evidence and unconstitutional vagueness. The district court denied both motions. McDonnell appealed to the Fourth Circuit. The Supreme Court granted certiorari to review the meaning of official act under the federal bribery statute.
View caseA law fails due process if it fails to give ordinary people fair notice of what conduct is prohibited. It also fails if it authorizes or encourages arbitrary and discriminatory enforcement by leaving officers without explicit standards.
No. Unpublished internal instructions cannot supply the fair notice or explicit enforcement standards that due process requires. Courts examine the enacted text itself.
Whether someone has an apparent or evident purpose depends entirely on the officer's subjective assessment. Different officers can reach opposite conclusions on identical facts, producing enforcement that varies with appearance, viewpoint, or bias.
Vagrancy ordinances that lack objective criteria permit officers to require conformity to whatever lifestyle they deem appropriate. The absence of standards allows enforcement against the poor, nonconformists, or dissenters while sparing others.
…its interest in prosecuting homosexual activity despite the gender-neutral terms of the statute may raise serious questions of discriminatory enforcement, questions that cannot be disposed of before this Court on a motion to dismiss. See Yick Wo v. Hopkins , 118 U. S. 356, 373-374 (1886). The legislature having decided that the sex of the…