Selective prosecution and the federalization of criminal law: the need for meaningful judicial review of prosecutorial discretion.

• Author: Heller, Robert
• Position: Case Note

Introduction

On March 9, 1994, Frank Ferris was indicted on one count of possession with intent to distribute cocaine base, or crack-cocaine ("crack"), in violation of 21 U.S.C. [sections] 841. He was subsequently convicted and sentenced to five years imprisonment.(1) This conviction and sentence was based on a drug sale to an undercover police officer of twenty dollars worth of crack, an amount small enough to have been wrapped in a gum wrapper.(2) This crime, although prosecuted in federal court, could have been prosecuted in state court under applicable state law.(3) What motivated federal prosecutors to charge Mr. Ferris in federal court? Perhaps he was part of a larger interstate or international cocaine ring that implicated substantial federal interests. Perhaps he was a recidivist whom prosecutors believed deserved more severe federal penalties. There are a number of rational motivations for prosecuting Mr. Ferris in federal court. Irrational and even unconstitutional motivations, however, are distinct possibilities as well.(4) After all, why burden the federal courts with the prosecution of a mere twenty dollar sale of crack?

The story of the federal prosecution of Mr. Ferris indicates a potential problem of federal law enforcement in general, and federal drug law enforcement in particular. Relatively insignificant crimes that affect purely local interests potentially rise to the level of federal crimes. This is a recent phenomenon in American criminal law.(5) Throughout much of American history, the regulation of criminal conduct was principally the province of the governments of the several states. This local control of criminal law was, in large part, due to the recognized limited powers of the federal government, a government restrained in its authority by the enumerated powers granted to it in the Constitution.(6) Policy concerns also dictated local control of the criminal justice system, as state governments were viewed as the political bodies best suited for protecting citizens from the primarily local problem of crime.(7)

As in other areas of the law, however, the changes that came with the modern era forever altered the landscape of criminal law, as the federal government began to encroach upon what had been a bastion of state sovereignty.(8) Massive economic expansion forced the federal government to play a larger role in American society, and the arena of criminal law was no exception.(9) The post-New Deal expansive interpretation of the Commerce Clause rendered the constitutional barrier to an increased role for the federal government largely nonexistent.(10) As "the crime problem" invaded the national consciousness to an unprecedented degree, especially in the past quarter-century, the "federalization" of crime has continued on an even more massive scale.(11)

Most of the federal expansion into the criminal law arena has not been at the expense of state criminal law. Federal criminal law, rather than preempting state law, largely supplements preexisting state prohibitions.(12) Thus, conduct that constitutes a federal crime in many cases "permit[s] dual jurisdiction by both federal and state authorities."(13) The most visible example of this concurrent jurisdiction, both in terms of public awareness and the sheer number of cases prosecuted, is in the area of illegal drugs.(14) An accused drug offender is subject to federal prosecution, state prosecution, or both, for the same criminal incident.(15) Because of the wide disparity in sentencing between federal and state drug statutes, the decision whether to prosecute federally takes on crucial importance. Simply stated, when a U.S. Attorney decides to prosecute a drug offender in federal court, rather than allow a state district attorney to prosecute the case in state court, the offender will ordinarily be subject to more severe punishment than similarly situated offenders who are prosecuted in state court.(16)

Concurrent jurisdiction due to the federalization of criminal law introduces into the criminal justice system a potential for prosecutorial abuse that was not an area of concern when crime was primarily a locally regulated phenomenon.(17) Prior to the widespread presence of the federal government in the area of criminal law, prosecutorial abuse with regard to the charging decision occurred only when a prosecutor charged a person with a crime despite having no probable cause to believe that person had committed the crime.(18) Currently, prosecutorial abuse can occur, even if a prosecutor has the requisite probable cause, when a federal prosecutor decides to prosecute a case in federal court based on such constitutionally impermissible motives such as the defendant's race, religion or ethnicity, rather than allow a state prosecutor to proceed with a state prosecution.(19)

The doctrine of prosecutorial discretion, which presumes that a prosecutor's decisionmaking process is constitutionally valid, is a principle with many legitimate and persuasive justifications.(20) In United States v. Armstrong,(21) the Supreme Court recently applied this long-standing doctrine(22) to the concurrent jurisdiction decisionmaking process a federal prosecutor confronts when an act constitutes both a federal and state crime.(23) The Armstrong Court reversed a district court's discovery order that would have compelled the U.S. Attorney's Office for the Central District of California to disclose its criteria for bringing a drug prosecution federally. The Court found that such charging decisions fall within recognized prosecutorial discretion and that only a high threshold of evidence that suggests a constitutional violation based on selective prosecution would permit such discovery.(24)

This Comment will argue that the traditional justifications for granting federal prosecutors almost unchecked discretion in making their charging decisions fail to outweigh the important constitutional rights at issue in situations such as the one the Court confronted in Armstrong. Therefore, the need exists for meaningful judicial review of the federal charging decision.(25) Part I of this Comment will trace the constitutional principle of selective prosecution embodied in the Fourteenth Amendment's Equal Protection Clause. It will demonstrate that the Supreme Court's decision in Armstrong has rendered this doctrine largely moot in an area that is especially susceptible to such constitutional violations. Part II discusses the doctrine of prosecutorial discretion and its commonly stated rationales. It will examine the applicability of the long-standing principle of prosecutorial discretion to the concurrent jurisdiction context brought on by the federalization of criminal law. This Part will argue that there is a need for meaningful judicial review of prosecutorial decisionmaking. This need stems from the failure of the policies that support broad prosecutorial discretion to justify potential infringement on a defendant's constitutional right to enjoy equal protection of the laws. Finally, Part III of this Comment supplies a working model for such meaningful judicial review. This model is premised on the argument that a prosecutor, as a fiduciary of the people, has a judicially enforceable duty in certain situations to answer a defendant's accusations of unconstitutional selective prosecution through discovery mechanisms.

1. The Constitutional Doctrine Of Selective Prosecution

   1. Yick Wo v. Hopkins and the Emergence of the Selective Prosecution Doctrine

      In the seminal case of Yick Wo v. Hopkins,(26) the Supreme Court established the general constitutional principle that the selective enforcement of a facially neutral statute may violate the Equal Protection Clause of the Fourteenth Amendment.(27) Yick Wo was a challenge to a San Francisco municipal ordinance that required the consent of the board of supervisors in order for a laundry to be operated in wooden buildings.(28) The evidence demonstrated that while such consent had been freely given to eighty non-Chinese applicants, two-hundred similarly situated Chinese applicants had been denied the necessary consent by the board of supervisors.(29) In finding that the ordinance so administered violated the Equal Protection Clause, the Court stated:

      [T]he facts shown establish an administration directed so exclusively

      against a particular class of persons as to warrant and require the

      conclusion, that, whatever may have been the intent of the ordinances as

      adopted, they are applied by the public authorities charged with their

      administration, and thus representing the State itself, with a mind so

      unequal and oppressive as to amount to a practical denial by the State of

      that equal protection of the laws which is secured to the petitioners, as

      to all other persons, by the broad and benign provisions of the Fourteenth

      Amendment to the Constitution of the United States. Though the law itself

      be fair on its face and impartial in appearance, yet, if it is applied and

      administered by public authority with an evil eye and an unequal hand, so

      as practically to make unjust and illegal discrimination between persons

      in similar circumstances, material to their rights, the denial of equal

      justice is still within the prohibition of the Constitution.(30)

      The Court in Yick Wo made it clear that a statute constitutional on its face can be rendered unconstitutional upon a showing that the public officials charged with the administration of the statute discriminated against a distinct class of people in enforcing the statute.

      Two key issues remained unresolved by the Yick Wo decision: (1) when such unconstitutional discrimination has occurred; that is, what classes of people are protected from unequal administration of the laws?; and (2) what proof is needed to demonstrate such unconstitutional discrimination?

   2. The Evolution of the Selective Prosecution Doctrine Since Yick Wo

      The Supreme Court addressed the first of these issues in...