Prosecutorial discretion and selective prosecution: enforcing protection after United States v. Armstrong.

• Author: Poulin, Anne Bowen

I think the greatest and most frequent injustice occurs at the discretion end of the scale, where rules and principles provide little or no guidance, where emotions of deciding officers may affect what they do, where political or other favoritism may influence decisions, and where the imperfections of human nature are often reflected in the choices made.

Kenneth Culp Davis(1)

1. Introduction

   Consider the following hypothetical: The United States Attorney for a particular district has received many allegations of election violations. The federal prosecutor's office does not have resources to investigate all the reports of election violations or to investigate possible unreported violations in the district. To focus the effort of the office, the United States Attorney decides to concentrate on the counties in which African-American politicians have made gains and to investigate only African-American politicians. Pursuing this racially-focused investigation, the prosecutor finds evidence that may prove Congresswoman Joan Smith, who is African-American, committed election violations. The prosecutor obtains an indictment charging her with those offenses and pursues the prosecution vigorously, hoping to make an example of Congresswoman Smith.(2)

   Surely this selection process raises serious concerns. It appears that the federal prosecutor has wielded power in a racially discriminatory manner. The prosecution may violate Ms. Smith's constitutional rights, but unfortunately, she may not even be able to obtain a meaningful hearing on the propriety of the prosecutor's actions. Although she may suspect that others were not prosecuted and she was singled out for an improper reason, she is unlikely to have proof In United States v. Armstrong,(3) the Supreme Court made it even more difficult for her to obtain access to information that would permit the court to explore her claims.

   The law does not dictate precisely how criminal defendants will be selected and, once selected, how they will be treated. Instead, the law accords police officers and prosecutors in our justice system discretion to make these decisions. The exercise of prosecutorial discretion, determining who will be prosecuted and how, sets the tone for the justice system. More importantly, by defining the contours and content of the justice system, it sets the tone for society as a whole.

   At least in theory, however, that discretion is limited by the Constitution. The Equal Protection and Due Process clauses forbid invidious discrimination in the exercise of prosecutorial discretion. The government may not select criminal defendants on improper grounds such as race or religious exercise. Thus, in some cases, the Constitution prohibits the government from pursuing criminal charges even though the defendant may have violated the criminal law. If our hypothetical congresswoman can prove that her selection was racially driven, then she can invoke the Constitution's protection to bar the prosecution regardless of whether she committed the charged offense. The constitutional violation lies in the discriminatory selection.

   Nonetheless, Congresswoman Smith may have difficulty invoking the constitutional protection. Although the courts recognize protection from improper selective prosecution as an abstract right, we have never achieved effective enforcement of that right. In Armstrong, the Supreme Court reduced the likelihood that we ever will, by reversing a decision granting discovery to defendants claiming improper selective prosecution and thus fortifing the barriers against defense discovery of evidence to support selective prosecution claims.

   Even before Armstrong, court-ordered remedies for selective prosecution were extremely rare, but the standard for recovery now established by the Court is so high that most claims may be summarily rejected. Post-Armstrong, a defendant(4) claiming selective prosecution must establish both that others similarly situated have not been prosecuted(5) and that the government's selection was motivated by invidious intent. Thus, our aggrieved politician would have to establish not only that she was selected because of her race but also that politicians of other races who had committed similar infractions were not prosecuted.

   In Armstrong, the Court addressed the early stages of a selective prosecution claim and held that a trial court should not even order discovery from the government unless the defendant first demonstrates the existence of a control group of similarly situated violators who have not been prosecuted. As discussed below, this holding creates a barrier few defendants are likely to surmount. Consequently, few selective prosecution claims will receive any meaningful judicial hearing.

   The decreased opportunity to air selective prosecution claims is unfortunate. Protection against selective prosecution not only safeguards important individual rights but also buttresses the integrity of the justice system itself. Abuse of prosecutorial power undermines public confidence in the justice system and alienates groups within society. Therefore, the judicial system has a stake in discouraging improper selective prosecution and should do so both by granting a remedy in the rare case in which a defendant establishes a constitutional violation and by airing allegations of selective prosecution.

   Pre-Armstrong judicial decisions rejecting claims of selective prosecution conceal a pattern of soft enforcement.(6) "Soft enforcement" is the impact of the judicial process on the voluntary behavior of the government and the public. Although most courts have been reluctant to find a government violation of a defendant's rights that warrants a sanction, through soft enforcement some have opened the legal process to air claims of selective prosecution. By allowing some discovery of government-controlled information, holding evidentiary hearings, and better defining the line between the proper and improper exercise of prosecutorial discretion, these courts have encouraged compliance with the Constitution.

   For example, in our hypothetical, even if the court does not dismiss the charges against the congresswoman, airing her claims may yield benefits both for the congresswoman herself and for the justice system. If questionable practices are uncovered, the government may reduce the charges against her or agree to a lesser sentence. Furthermore, the prosecutor's office may carefully examine and modify the selection process to reduce the possibility of improper selection in future cases. In addition, airing the claim through the legal process informs the public about law enforcement practices, and it may prompt political pressure for fairer use of prosecutorial resources. Armstrong makes it more difficult for the defendant to obtain information and insight about the government's selection, and thus the decision diminishes the likelihood of soft enforcement.

   In the wake of Armstrong, all three branches of government can fight improper selective prosecution. Although Armstrong generally prohibits courts from granting discovery to defendants who cannot demonstrate the existence of a control group, the decision affords courts latitude to grant discovery to defendants who present evidence of improper motive. Additionally, the legislature can require record keeping, which will permit detection of patterns that may signal improper selective prosecution, and the executive branch can enhance self-regulation by adopting and enforcing internal policies and by conducting internal investigations of allegations of selective prosecution. Executive self-regulation is critical to achieving constitutional protection since Armstrong reduces the courts' role in protecting against selective prosecution.

   Addressing the problem posed by prosecutorial discretion and selective prosecution, Part II of this Article reviews the Supreme Court's holding in Armstrong. Part Ill considers why protection from selective prosecution is disfavored as a constitutional right. Part IV then outlines the theoretical framework within which problems of selective prosecution arise. Part V reviews mechanisms for enforcing the constitutional protection, including the subtle effect of soft enforcement, and discusses Armstrong's impact on enforcement. Finally, Parts VI and VII propose approaches to enforcement in the wake of Armstrong: Part VI considers the court's role and Part VII proposes legislative and executive action that would reduce selective prosecution.

2. United States v. Armstrong

   The defendants in Armstrong were indicted in 1992. The indictment charged them with violating federal narcotics laws; specifically, conspiracy to possess with intent to distribute and conspiracy to distribute more than fifty grams of crack cocaine (in violation of 21 U.S.C. [sub-section] 841, 846) and various firearms offenses. The defendants filed a motion seeking discovery and dismissal of the indictment, alleging that they had been improperly selected for federal prosecution because they were African-American.(7) The defendants supported their motion with an affidavit of an employee of the Federal Public Defender, who reported that all twenty-four defendants prosecuted under these sections in the Central District of California during 1991 were African-American. The district court granted the motion and ordered the prosecution

   (1) to provide a list of all cases from the last three years in which the

   Government charged both cocaine and firearms offenses, (2) to identify the

   race of the defendants in those cases, (3) to identify what levels of law

   enforcement were involved in the investigations of those cases, and (4) to

   explain its criteria for deciding to prosecute those defendants for federal

   cocaine offenses.(8)

   The prosecution moved the court to reconsider its order, and also sought to explain why it selected the defendants, providing affidavits from the federal and local agents stating...