Also known as: selective prosecution · discriminatory prosecution · selective enforcement · discriminatory enforcement
Written by attorneys — see sources below.
A defense asserting that the government singled out a defendant for prosecution on the basis of an impermissible factor such as race. The claim requires a threshold showing of both discriminatory effect and discriminatory intent, including evidence that similarly situated persons of other races were not prosecuted.
Sylvia Santos, a defense lawyer, held a press conference criticizing a high-profile prosecution as politically motivated. The state bar charged her under a publicity rule containing a vague safe-harbor clause for statements made without elaboration. The disciplinary board applied the rule only to Santos while ignoring similar comments by prosecutors, raising a selective-enforcement claim.
Spencer Silver and three other Black defendants were indicted for crack distribution. They sought discovery showing that similarly situated white suspects had not been prosecuted. Because they offered no evidence that the government declined to prosecute comparable non-Black offenders, the court denied discovery and rejected the selective-prosecution defense.
In April 1992, respondents were indicted in the Central District of California on charges of conspiring to possess with intent to distribute more than 50 grams of cocaine base (crack), conspiring to distribute the same, and related federal firearms offenses. Federal and local agents, using confidential informants, made a series of purchases of crack from respondents and observed firearms during several transactions. Respondents were arrested and evidence, including additional crack and a loaded gun, was recovered. In response to the indictment respondents moved for discovery or dismissal, alleging selective prosecution on racial grounds. They submitted an affidavit from a paralegal specialist at the Office of the Federal Public Defender stating that, in every one of 24 § 841 or § 846 cases closed by that office during 1991, the defendant was black, and a study listing those 24 cases with limited information about race and case status. The Government opposed discovery, noting that respondents offered no evidence that the Government had prosecuted nonblack defendants differently or had failed to prosecute them. The District Court ordered expansive discovery: a list of all cases from the prior three years in which the Government charged both cocaine and firearms offenses, the race of defendants in those cases, the levels of law enforcement involved, and the Government's criteria for deciding to prosecute federal cocaine offenses. The Government moved for reconsideration and submitted affidavits and other evidence explaining the basis for prosecuting respondents and disputing the inference of selective prosecution. Agents and an Assistant United States Attorney averred that race played no role in the investigation and that the case met ordinary prosecutorial criteria given the quantity of crack, multiple sales, firearms violations, strong evidence, and defendants' criminal histories. The Government also submitted a published DEA study discussing the dominance of particular groups in large-scale crack trafficking. The District Court denied reconsideration and, when the Government refused to comply with the discovery order, dismissed the indictment. A divided Ninth Circuit panel reversed; the en banc Ninth Circuit affirmed the dismissal, holding that a defendant need not show the Government failed to prosecute similarly situated others to obtain discovery. The Supreme Court granted certiorari to decide the appropriate standard for discovery on a selective-prosecution claim.
View caseSimone Sanders and fellow housing advocates were arrested under a city loitering statute after setting up information tables. Police routinely ignored identical conduct by non-advocacy groups. Sanders challenged the statute on vagueness grounds for failing to supply enforcement standards.
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 caseSeth Shapiro operated an adult bookstore whose materials criticized government policy. Federal agents seized the entire inventory under racketeering statutes while leaving comparable non-political businesses untouched. Shapiro challenged the forfeiture as violating the First Amendment.
Ferris J. Alexander, Sr., had been in the adult entertainment business for more than thirty years. He sold pornographic magazines and sexual paraphernalia, showed sexually explicit movies, and sold and rented videotapes of a similar nature. He received shipments of these materials at a warehouse in Minneapolis, Minnesota, where they were wrapped in plastic, priced, and boxed. He then sold his products through some thirteen retail stores in several different Minnesota cities, generating millions of dollars in annual revenues. In 1989, federal authorities filed a forty-one count indictment against Alexander and others. The indictment alleged operation of a racketeering enterprise in violation of RICO. It charged thirty-four obscenity counts and three RICO counts, with the racketeering counts being predicated on the obscenity charges. The indictment also charged numerous counts of tax evasion and related offenses. Following a four-month jury trial in the United States District Court for the District of Minnesota, Alexander was convicted of seventeen substantive obscenity offenses. These included twelve counts of transporting obscene material in interstate commerce and five counts of engaging in the business of selling obscene material. He was also convicted of three RICO offenses predicated on the obscenity convictions. The jury determined that four magazines and three videotapes were obscene under the Miller standards. Alexander was sentenced to a total of six years in prison and fined one hundred thousand dollars. In addition, the District Court reconvened the same jury and conducted a forfeiture proceeding pursuant to 18 U.S.C. § 1963. The Government sought forfeiture of the businesses and real estate representing Alexander's interest in the racketeering enterprise, property affording him influence over that enterprise, and assets and proceeds obtained from his racketeering offenses. The jury found that Alexander had an interest in ten pieces of commercial real estate and thirty-one current or former businesses. The District Court ordered him to forfeit his wholesale and retail businesses, all the assets of those businesses including more than thirteen thousand items of inventory, and almost nine million dollars in moneys acquired through racketeering activity. The Court of Appeals for the Eighth Circuit affirmed Alexander's convictions and the forfeiture order. The Supreme Court granted certiorari to consider whether the forfeiture order violated the First or Eighth Amendments.
View caseSierra Santos was stopped at a sobriety checkpoint located in a predominantly minority neighborhood. Data showed checkpoints were sited and operated far more frequently in minority areas than in affluent districts. Santos challenged the checkpoint program under the Fourth Amendment.
In early 1986 the Michigan Department of State Police established a sobriety checkpoint pilot program after its director appointed an advisory committee that included representatives of the State Police, local police departments, state prosecutors, and the University of Michigan Transportation Research Institute. The committee developed written guidelines that required checkpoints to be selected pursuant to written procedures, operated by uniformed officers under the supervision of a field commander, with every vehicle stopped, occupants briefly questioned, and the vehicle visually inspected; only drivers showing signs of intoxication would be directed out of the traffic flow for further investigation. The first and only checkpoint operated under the program ran for seventy-five minutes on the northbound lane of I-75 in Saginaw County on May 2, 1986. During that operation 126 vehicles passed through the checkpoint, the average delay per vehicle was approximately twenty-five seconds, two drivers were arrested for driving under the influence of alcohol, and one driver was arrested for driving with a suspended license. Respondents are two licensed Michigan drivers who regularly travel the state and who were stopped at the checkpoint but not arrested. On the day before the Saginaw County checkpoint they filed a complaint in the Circuit Court of Wayne County seeking declaratory and injunctive relief against the checkpoint program. After trial the Wayne County Circuit Court ruled that the program violated the Fourth Amendment and the Michigan Constitution. The Michigan Court of Appeals affirmed the Fourth Amendment holding, the Michigan Supreme Court denied leave to appeal, and the United States Supreme Court granted certiorari.
View caseSofia Stern publicly refused to register for the draft and was indicted. The government prosecuted only those who had openly voiced opposition while ignoring thousands of silent non-registrants. Stern raised selective prosecution, arguing the decision rested on her public expression rather than neutral enforcement criteria.
On July 2, 1980, President Carter signed Proclamation No. 4771 requiring males born in 1960 to register with the Selective Service System during the period July 21–August 2, 1980. David Alan Wayte, who fell within that class, did not register as required. Instead, he wrote several letters to Government officials, including the President, stating that he had not registered and did not intend to do so. His letters were placed in a Selective Service file of young men who advised that they had failed to register or who were reported by others. Selective Service adopted a policy of passive enforcement under which it would investigate and prosecute only the cases of nonregistration contained in this file of self-reporters and third-party reports. In June 1981, Selective Service sent a letter to Wayte explaining the duty to register and warning of criminal prosecution. Wayte did not respond to the letter. On July 20, 1981, Selective Service transmitted Wayte's name to the Department of Justice along with 133 others. The Department of Justice followed a "beg" policy, notifying nonregistrants by mail that prosecution would be considered unless they registered, and often sending FBI agents to interview them. Wayte received such a letter in October 1981 but failed to respond. After a presidential grace period ending February 28, 1982, during which Wayte still did not register, the Department decided to prosecute under the passive system. On June 28, 1982, FBI agents interviewed Wayte, who continued to refuse to register, leading to his indictment on July 22, 1982. Wayte moved to dismiss the indictment on the ground of selective prosecution, contending that he and other indicted nonregistrants were vocal opponents targeted because of their exercise of First Amendment rights. He sought broad discovery of government documents. The District Court for the Central District of California ordered discovery, found that Wayte had made out a prima facie case, and dismissed the indictment when the Government declined to produce the documents the District Court had ordered produced citing deliberative process privilege. The Court of Appeals for the Ninth Circuit reversed the dismissal. The Supreme Court granted certiorari to review the selective prosecution issue.
View caseA defendant must produce some evidence that similarly situated persons of other races were not prosecuted. Without that threshold showing of discriminatory effect and intent, discovery is not required.
No. Statistical disparities must be coupled with evidence that the government acted with discriminatory intent and failed to prosecute similarly situated offenders of other races.
Yes. When a rule lacks clear standards, it creates a risk of arbitrary or discriminatory enforcement that may violate due process.
…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…