Selective Prosecution

• Author: Jeffrey Lehman, Shirelle Phelps

Page 88

Criminal prosecution based on an unjustifiable standard such as race, religion, or other ARBITRARY classification.

Selective prosecution is the enforcement or prosecution of criminal laws against a particular class of persons and the simultaneous failure to administer criminal laws against others out-side the targeted class. The U.S. Supreme Court has held that selective prosecution exists where the enforcement or prosecution of a CRIMINAL LAW is "directed so exclusively against a particular class of persons ? with a mind so unequal and oppressive" that the administration of the criminal law amounts to a practical denial of EQUAL PROTECTION of the law (United States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 2d 687 [1996], quoting YICK WO V. HOPKINS, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 [1886]). Specifically, police and prosecutors may not base the decision to arrest a person for, or charge a person with, a criminal offense based on "an unjustifiable standard such as race, religion, or other arbitrary classification" (United States v. Armstrong, quoting Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 [1962]).

Selective prosecution is a violation of the constitutional guarantee of equal protection for all persons under the law. On the federal level, the requirement of equal protection is contained in the DUE PROCESS CLAUSE of the FIFTH AMENDMENT to the U.S. Constitution. The Equal Protection Clause of the FOURTEENTH AMENDMENT extends the prohibition on selective prosecution to the states. The equal protection doctrine requires that persons in similar circumstances must receive similar treatment under the law.

Selective prosecution cases are notoriously difficult to prove. Courts presume that prosecutors have not violated equal protection requirements, and claimants bear the burden of proving otherwise. A person claiming selective prosecution must show that the prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose. To demonstrate a discriminatory effect, a claimant must show that similarly situated individuals of a different class were not prosecuted. For example, a person claiming selective prosecution of white Protestants must produce evidence that shows that white Protestants were...