Discriminatory Prosecution

In deciding whom to prosecute, prosecutors may not deliberately use impermissible arbitrary criteria, such as race, religion, national origin, or the exercise of protected statutory or constitutional rights. This Discriminatory Prosecution violates the defendant’s equal protection rights under the Fourteenth Amendment or as incorporated through the Due Process Clause of the Fifth Amendment if the case is federal. A finding of Discriminatory Prosecution generally justifies a dismissal of the indictment or conviction unless the state can establish a compelling justification for its selectivity. A Discriminatory Prosecution claim does not serve as a defense on the merits to the underlying charge; it is simply a constitutional defect in the prosecution rather than a determination of a defendant’s innocence or guilt.

Just as the legislative branch is prevented from enacting laws that deny equal protection, so too is the executive branch restrained from enforcing laws in a way that denies equal protection. As the Supreme Court in Yick Wo v. Hopkins, 118 U.S. 356 (1886), explained well over a century ago in reference to an administrative agency’s actions, ‘‘[t]hough 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 discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.’’

While the foregoing is relatively uncontroversial, the more debatable issue is what elements a defendant must prove to prevail in a claim of Discriminatory Prosecution and how a defendant can obtain such evidence. Allegations of Discriminatory Prosecution are very difficult to prove. Courts almost invariably reject defendants’ claims.

Discriminatory Prosecution claims are judged according to ordinary equal protection standards. In Wayte v. United States, 470 U.S. 598 (1985), the Court stated that the defendant must show that the prosecutor’s charging decision ‘‘had a discriminatory effect and that it was motivated by a discriminatory purpose.’’ Courts have required a Burden of Proof ranging from a reasonable inference of impermissible discrimination to convincing evidence.

Proof of a discriminatory effect, also referred to as a disparate impact, requires showing that similarly situated people, in an identifiable group other than the defendant’s, were not but could have been prosecuted. Obtaining such evidence may be very difficult, especially if the similarly situated people’s offenses have not come to the attention of the police, perhaps because they focused their efforts on one group rather than another. Even if a discriminatory effect can be shown, this does not show that the prosecutor purposefully caused or intended such an effect. Defendants must instead produce evidence that they have been intentionally and purposefully singled out for prosecution on the basis of arbitrary or invidious criteria. Put differently, a defendant must show that the prosecutor chose to prosecute because of, rather than in spite of, the defendant’s membership in an identifiable group.

Just as it is difficult to prove Discriminatory Prosecution, it is also difficult for a defendant to obtain discovery of evidence from the prosecution to establish the claim. In United States v. Armstrong, 517 U.S. 456 (1996), defendants moved for discovery on their claim that federal ‘‘crack’’ cocaine laws were selectively enforced against blacks. The Supreme Court held that in order to obtain discovery regarding the state’s charging practices, a defendant must establish a ‘‘colorable basis’’ for discriminatory effect and discriminatory purpose. To demonstrate discriminatory effect, the defendant must make a ‘‘credible showing’’ that the state could have, but failed, to prosecute similarly situated people of a different race. A defendant cannot simply point at the race of those prosecuted and presume that people of all races commit all types of crimes. A colorable basis refers to evidence tending to show the existence of discriminatory effect and intent. This showing appears to be less onerous than a prima facie case but more difficult than a nonfrivolous showing.

The Supreme Court in Armstrong reasoned that restricting a defendant’s access to discovery would be a significant barrier to the litigation of insubstantial claims. Requiring a credible showing would serve to balance a state’s interest in vigorous law enforcement and a defendant’s interest in avoiding selective prosecution. Many legal commentators, however, argue that the defendant’s burden is too onerous, primarily because the facts that might show Discriminatory Prosecution, especially those that might show discriminatory intent, are often exclusively in the prosecutor’s possession.

Nonetheless, courts have sound reasons for their highly deferential approach to prosecutors’ charging decisions. Because of concerns about separation of powers, courts are reluctant to intrude on a province constitutionally assigned to the executive branch. In addition, prosecutors have special expertise that courts institutionally do not have in assessing the severity of a crime, the probability of a conviction, public opinion, or the deployment of scarce prosecutorial resources. Courts also fear that subjecting a prosecutor’s motives and decision-making to outside scrutiny might chill law enforcement, or that a less restrictive approach to Discriminatory Prosecution claims would unleash an unmanageable number of such claims, resulting in additional long delays and costs in the criminal justice system. Finally, there is the underlying presumption that a prosecutor properly discharges his or her official duties in good faith.

On the other hand, this restrictive approach may eliminate legitimate claims. It may be very difficult for a defendant to prove racial and other forms of discrimination since discrimination is much more subtle than in the past and may even be unconscious. Some empirical studies purport to show that minorities with prior criminal records and convicted of drug offenses who refuse to plead guilty or who are associated with white victims are charged and punished more severely than comparable nonminorities. In addition, if the criminal justice system is perceived as unfair or racist because the courts fail to recognize Discriminatory Prosecution, then communities may cooperate less with the police, resulting in less effective law enforcement. Because there is rarely a judicial remedy for Discriminatory Prosecution claims, it remains true that the primary check against prosecutorial abuse is political.

ANTONY PAGE

References and Further Reading

• Davis, Angela J., Prosecution and Race: The Power and Privilege of Discretion, Fordham Law Review 67 (1998): 13–67.
• McAdams, Richard H., Race and Selective Prosecution: Discovering the Pitfalls of Armstrong, Chicago Kent Law Review 73 (1998): 605–667.
• Poulin, Anne B., Prosecutorial Discretion and Selective Prosecution: Enforcing Protection After United States v. Armstrong, American Criminal Law Review 34 (Spring 1997): 1071–1125.

Cases and Statutes Cited

• McCleskey v. Kemp, 481 U.S. 2779 (1987)
• Oyler v. Boles, 368 U.S. 448 (1962)
• United States v. Armstrong, 517 U.S. 456 (1996)
• Wayte v. U.S., 470 U.S. 598 (1985)
• Yick Wo v. Hopkins, 118 U.S. 356 (1886)

See also Equal Protection of Law (XIV); Race and Criminal Justice