Unequal justice: the Supreme Court's failure to curtail selective prosecution for the death penalty.

• Author: Larson, Jessie
• Position: Case Note

United States v. Bass, 536 U.S. 862 (2002)

1. INTRODUCTION

   In United States v. Bass, (1) the Supreme Court, in a per curiam opinion, ruled on the standard of proof required for a defendant to obtain discovery to support a claim of selective prosecution for the death penalty. The Court held that in order to attain such discovery, a defendant must demonstrate that the prosecutors were motivated by a discriminatory intent and that the prosecutors' conduct had a discriminatory effect upon the defendant. (2) Such a showing may be accomplished by submitting relevant evidence that similarly situated persons were treated differently. (3)

   This Note argues that the Supreme Court's decision in United States v. Bass was incorrect. The Court's decision imposes too high a burden upon a defendant seeking to obtain discovery in support of a selective prosecution defense where the Government is seeking the death penalty. In reaching its conclusion, the Supreme Court relied exclusively upon United States v. Armstrong, which set forth the general standard for obtaining discovery in a selective prosecution case: defendants must submit some evidence that similarly situated individuals could have been prosecuted but were not. (4) However, the Court's absolute reliance on Armstrong was misplaced. The pervasive policy consideration underlying the decision in Armstrong was the Court's reluctance to intrude upon the constitutionally granted discretion of the Executive to enforce criminal laws. (5) However, the importance of ensuring that the death penalty is not imposed arbitrarily outweighs the need to maintain the Executive's independence in enforcing criminal laws. The Court should have examined the applicability of its policies in the death penalty context and imposed a lower burden on defendants seeking discovery to support selective prosecution claims in capital cases. The standard created in Bass will likely be highly criticized for preventing meritorious claims of selective prosecution from coming to light in the important cases where a defendant is subject to the death penalty. (6)

   Moreover, this Note argues that the Court should have used Bass to reconsider the standard imposed by Armstrong for non-capital selective prosecution cases. While the severe nature of the death penalty requires a more lenient standard, all selective prosecution cases are likely to fail under the current "similarly situated individuals" test. (7) The importance that laws be executed fairly requires that the selective prosecution defense be available in all cases, not only in cases where the death penalty is at stake.

2. BACKGROUND

   1. THE SELECTIVE PROSECUTION DEFENSE

      The selective prosecution defense arises under the Equal Protection Clause of the Fourteenth Amendment, which states in pertinent part that no state shall "deny to any person within its jurisdiction the equal protection of the laws." (8) Accordingly, the Supreme Court has determined that under the Equal Protection Clause, a decision whether to prosecute may not be based upon "an unjustifiable standard such as race, religion, or other arbitrary classification." (9) Thus, to prove a selective prosecution defense, a defendant must show that administration of a law is, "directed so exclusively against a particular class of persons ... with a mind so unequal and oppressive" that the system results in "a practical denial" of equal protection of the law. (10)

      The first case in which the Supreme Court considered the selective prosecution defense was Yick Wo v. Hopkins. (11) In Yick Wo, the petitioners alleged that a San Francisco ordinance limiting the use of wooden buildings as laundry cleaners was enforced exclusively against Chinese individuals. (12) The Supreme Court held that the ordinance violated the Equal Protection Clause because 200 Chinese subjects were prohibited from operating their cleaners in such buildings, while eighty non-Chinese subjects were allowed to continue operating their businesses. (13) The Court thereby established that the Constitution prohibits the unequal application of a facially neutral law. (14)

      The Supreme Court next considered the selective prosecution defense in Ah Sin v. Whitman. (15) The petitioner in Ah Sin alleged that a San Francisco ordinance prohibiting gaming tables in rooms barricaded to prevent police entrance was enforced exclusively against Chinese individuals in violation of the Equal Protection Clause. (16) The Court held that the petitioner's claim was not substantiated because he did not provide evidence that there were non-Chinese offenders against whom the law was not enforced. (17) Since Ah Sin, the Supreme Court has held that in order to prevail on a selective prosecution claim, defendants must demonstrate "that similarly situated individuals ... were not prosecuted." (18)

      In Oyler v. Boyles, (19) the Court considered petitioners' allegations that a West Virginia statute, imposing a duty upon prosecutors to seek mandatory sentences for repeat offenders, was selectively enforced in violation of the Equal Protection Clause. To support their claim, petitioners introduced statistics demonstrating that the maximum sentence was actually sought in a minority of cases. (20) The Court denied their claim, holding that it was not a constitutional violation to exercise some selectivity when enforcing the laws. (21) In order to succeed on a selective prosecution claim, defendants must also demonstrate that such selectivity was intentionally based upon an unconstitutional standard. (22)

      In Wayte v. United States, (23) petitioners were "vocal" opponents to the Selective Service registration process. (24) They alleged that they were selectively prosecuted out of an estimated 674,000 non-registrants because they had exercised their First Amendment right in vocalizing their opposition to the registration program. (25) In rejecting petitioners' claim, the Court determined that selective prosecution defenses should be subjected to the ordinary equal protection standards: a defendant must show that the government engaged in discriminatory treatment that had a discriminatory effect upon the defendant, and that the government was motivated by discriminatory intent. (26)

      The most recent case in which the Supreme Court considered the selective prosecution defense was United States v. Armstrong. (27) In Armstrong, the defendants were indicted for selling crack cocaine and alleged that the United States' decision to prosecute them was based upon their race. (28) The defendants sought discovery of certain documents possessed by the Government, and in support of their request, introduced statistical evidence demonstrating that African Americans were prosecuted for crack sales in a disproportionate number of cases. (29) The Court rejected the defendants' discovery request, emphasizing its reluctance to intrude upon the discretion of the Executive in enforcing criminal laws. (30) The Court held that the strong presumption in favor of honoring the United States' prosecutors' decisions mandated a rigorous standard to prove a selective prosecution claim, and that an equally rigorous standard was required for discovery requests in aid of such claims because "[d]iscovery ... imposes many of the costs present when the Government must respond to a prima facie case of selective prosecution." (31) The Court thus established the current standard for procuring discovery documents in a selective prosecution case: defendants must "produce some evidence that similarly situated defendants of other races could have been prosecuted, but were not." (32)

   2. LIMITS ON DISCRETION IN CAPITAL SENTENCING

      The Supreme Court has held that under the Constitution, the United States Government is afforded broad discretion in enforcing the nation's criminal laws. (33) However, the Court has also noted that the death penalty is unique due to its severe and final nature. (34) Therefore, while the Court has not significantly limited prosecutors' discretion in deciding against whom they will seek the death penalty, it has imposed restraints upon sentencers' ability to impose the death penalty. The Court has held that the discretion of sentencers must be "limited so as to minimize the risk of wholly arbitrary and capricious action." (35) Although the Court has thus limited sentencers' discretion in capital punishment cases, (36) it has never precisely determined the scope of that discretion. (37)

      In Furman v. Georgia, (38) the defendants, convicted of rape and murder, challenged the validity of the Georgia death penalty statute. The defendants claimed that the imposition of the death penalty under the Georgia statute constituted "cruel and unusual punishment" in violation of the Eighth and Fourteenth Amendments. (39) The Court ruled in favor of the defendants, and vacated their death sentences. (40) However, the Court declined to hold that the death penalty is a per se violation of the Constitution. (41) Instead, the Court held that a state's death penalty stature is unconstitutional if the sentencer is allotted too much discretion in deciding whether to impose capital punishment. (42) Accordingly, the Court held that the death penalty could not be imposed pursuant to a procedure that granted unfettered discretion to the sentencer, thereby creating a great risk that the death penalty would be imposed arbitrarily. (43)

      The Georgia death penalty statute was again challenged in Gregg v. Georgia. (44) The petitioner in Gregg contended that the amended Georgia capital punishment statute did not effectively eliminate the dangers of arbitrariness in capital sentencing procedures, as Furman mandated. (45) Georgia's death penalty statute included a list of aggravating circumstances, one of which the jury had to find in order to impose the death penalty. (46) The petitioner alleged that the statute violated the Constitution because, among other things, one of the aggravating circumstances was too broad...