Also known as: arbitrarily and discriminatorily enforced · selective enforcement · discriminatory enforcement
Written by attorneys · grounded in primary & secondary sources — see 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.
Select any source to read its text and confirm it supports the definition.
Aaron 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.
Albert 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.
Andrew 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.
Angela 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.
A 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…