Goodbye to the defense of selective prosecution.

• Author: Jampol, Melissa L.
• Position: Supreme Court Review

United States v. Armstrong, 116 S. Ct. 1480 (1996)

1. INTRODUCTION

   In United States v. Armstrong,(1) the Supreme Court granted certiorari to determine the standard of proof for a defendant in a criminal prosecution to obtain discovery in a selective prosecution defense. The five African-American defendants in Armstrong were arrested in a multi-agency sting operation for selling cocaine base.(2) They alleged that they were targeted for federal prosecution because of their race,(3) and claimed that they were entitled to discovery from the Government because they met the threshold "colorable basis" standard.(4) The Supreme Court found that the Ninth Circuit Court of Appeals applied the wrong standard to the discovery motion by failing to require the defendants to prove that "others similarly situated" were not prosecuted.(5) Moreover, the Court found that selective prosecution defenses are different from other defenses bearing directly on the merits of the case-in-chief, and, therefore, discovery of selective prosecution claims is not covered by Federal Criminal Rule of Procedure 16.(6) The case was remanded for further proceedings.(7)

   This note argues that the Supreme Court's decision in United States v. Armstrong imposes a barrier that is too high for almost any defendant alleging selective prosecution to obtain discovery, thus making the already difficult claim of race-based selective prosecution virtually impossible to prove. Additionally, this note argues that the Court should have adopted justice Marshall's three-prong test from his dissent in Wayte v. United States,(8) which requires a defendant to meet a lower threshold to obtain discovery in a selective prosecution defense than to prove the claim on the merits at trial.

2. BACKGROUND

   A selective prosecution defense arises when a prosecutor brings charges against a defendant deliberately motivated by constitutionally prohibited "standard[s] such as race, religion or other arbitrary classification."(9) The claim of selective prosecution is based upon Equal Protection considerations, in which a "defendant may demonstrate that the administration of a criminal law is `directed so exclusively against a particular class of persons ... with a mind so unequal and oppressive' that the system of prosecution amounts to `a practical denial' of equal protection of the law."(10)

   In general, selective prosecution claims can be divided into two subsets: those based on claims of racial discrimination; and those based on other constitutionally impermissible infringements, such as First Amendment violations,(11) prosecution of repeat offenders,(12) or cases involving alien defendants charged with reentering the United States after a prior deportation.(13) Moreover, a distinction must also be drawn between a selective prosecution claim based upon a civil suit for injunctive relief against the individual prosecutor(14) and that asserted as a defense to a criminal charge,(15) because there are different quantums of proof necessary to establish a viable claim.(16)

   1. SELECTIVE PROSECUTION DEFENSES UNDER THE EQUAL PROTECTION COMPONENT OF THE FIFTH AND FOURTEENTH AMENDMENTS(17)

      The first two selective prosecution cases the Supreme Court encountered involved challenges by Chinese citizens to local ordinances in San Francisco.(18) In Yick Wo v. Hopkins,(19) the Supreme Court found that San Francisco authorities selectively enforced zoning ordinances against resident Chinese, but almost never against whites.(20) Although facially neutral, the Court found that the San Francisco ordinances were enforced on a discriminatory basis, relying on the statistical disparity between Chinese and non-Chinese applicants for wooden laundry licenses.(21) The Court observed:

      [t]hough the law itself be fair on its face, and impartial in appliance, yet,

      if it is applied ... with an evil eye and an unequal hand, so as practically

      to make unjust and illegal discriminations between persons in similar

      circumstances, material to their rights, the denial of equal justice is still

      within the prohibition of the constitution.(22)

      Twenty years later, the Supreme Court directly addressed a claim of selective prosecution in Ah Sin v. Whitman,(23) though the Court rejected the respondent's allegations.(24) Ah Sin, a Chinese citizen, petitioned a California state court for a writ of habeas corpus.(25) He alleged that a San Francisco county ordinance prohibiting persons from setting up gaming tables in rooms barricaded to stop police from entering violated the Equal Protection Clause because the ordinance was enforced exclusively against persons of Chinese ancestry.(26) The Court rejected this argument stating that "[t] here is no averment that the conditions and practices to which the ordinance was directed did not exist exclusively among the Chinese, or that there were other offenders against the ordinances than the Chinese, as to whom it was not enforced."(27) As a result, since Ah Sin, to prove an equal protection violation, those asserting selective prosecution claims must establish that others similarly situated were not prosecuted.(28)

      In Oyler v. Boyles,(29) repeat offenders challenged a West Virginia state law that imposed a requisite duty on prosecutors to seek mandatory sentences.(30) The petitioners argued that the prosecutors' action denied "equal protection to those persons against whom the heavier penalty is enforced."(31) Rejecting the petitioner's contentions as insufficient,(32) the Court stated that

      the conscious exercise of some selectivity in enforcement is not in itself a

      federal constitutional violation. Even though the statistics in this case

      might imply a policy of selective enforcement, it was not stated that the

      selection was deliberately based upon an unjustifiable standard such as

      race, religion or other arbitrary classification.(33)

      Until Armstrong, Wayte v. United States(34) set forth the most recent iteration of the standards necessary to prove a selective prosecution claim.(35) In Wayte, the defendant was charged with knowingly and willfully failing to register for the draft with the Selective Service.(36) The defendant moved to dismiss the indictment on the ground that he was selectively prosecuted, since he and the other thirteen "vocal" opponents of the registration program were targeted out of an estimated 674,000 non-registrants.(37) Setting forth a two-prong test, the Court found that Wayte failed to prove that the government engaged in discriminatory treatment and that the government was motivated by discriminatory intent.(38) The Majority focused both on the treatment of the defendant as well as the motivation behind the prosecutor's decision to go forward with the charges.(39) Lower courts thereafter used this two-prong test.

   2. OTHER RELATED EQUAL PROTECTION CASES

      In Batson v. Kentucky,(40) the Court held that a defendant may establish a prima facie case of purposeful discrimination in selection of a jury solely on evidence concerning the prosecutor's exercise of preemptory challenges.(41) The defendant must prove that: (1) "he is a member of a cognizable racial group;"(42) (2) the prosecutor exercised preemptory challenges to remove members of the defendant's race from the venire;(43) and (3) considering all relevant circumstances(44) "[it raised] an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of the their race."(45) The Court held that once the defendant makes the relevant showing, the burden then shifts to the prosecution to explain adequately the racial exclusion.46Moreover, the prosecution must "articulate a neutral explanation related to the particular case to be tried."(47)

      Castaneda v. Partida(48) addressed the question of an equal protection violation in grand jury selection.(49) The Mexican-American plaintiff in Castaneda alleged a denial of due process and equal protection because of gross underrepresentation of Mexican-Americans on the county grand jury that convicted him.(50) Writing for the Court, justice Blackmun set forth a three-prong test for the party alleging the violation: (1) the party is a member of a group that "is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied;"(51) (2) the party must prove exclusion by "comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time;"(52) and (3) that this selection is subject to abuse.(53) This test establishes a prima facie case of discriminatory purpose, and the burden then shifts to the state to rebut the case.(54) In applying the test, the Majority stated, "we prefer to look at all the facts that bear on the issue, such as the statistical disparities, the method of selection, and any other relevant testimony as to the manner in which the selection process was implemented."(55)

   3. CRIMINAL AND CIVIL DISCOVERY OF DOCUMENTS HELD BY THE GOVERNMENT

      1. Civil Rules 26(b) and 34

         In the civil context, liberal discovery is the cornerstone of the notice pleading system envisioned by Judge Clark in establishing the Federal Rules of Civil Procedure.(56) Rule 26(b) governs the scope of discovery,(57) and Rule 34 controls the production of documents.(58) Rules 26(b) and 34 were designed to work closely together.(54) There are four requirements that a party seeking discovery must meet under Federal Rules of Civil Procedure 26 and 34: 1) the requested discovery must not be privileged;(60) 2) the requested discovery must be "relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party;"(61) 3) the requested discovery must be in the "possession, custody or control of the party upon whom the request is served;"(62) and 4) trial preparation materials are available only upon a showing "that the party...