Also known as: selective enforcement · discriminatory enforcement · selective prosecution · discriminatory prosecution
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional doctrine that bars officials or associations from applying a facially valid rule or law to some persons while sparing others similarly situated without a rational basis or legitimate justification. The doctrine protects against arbitrary or biased use of enforcement discretion and often arises in vagueness challenges where vague standards invite uneven application. It requires even-handed enforcement tied to the rule's stated purposes rather than personal or improper motives.
Serena Soto, a defense lawyer, told reporters that her client faced politically motivated charges. The bar cited her under a publicity rule with a vague safe-harbor clause allowing statements made without elaboration. The bar ignored similar statements by prosecutors in other high-profile cases. A court reviewing the discipline would examine whether the vague clause permitted selective targeting of defense counsel.
Sydney Santos and three other Black defendants were charged with crack distribution. They sought discovery showing that similarly situated white suspects had not been prosecuted. The government refused to supply the records. The court would require the defendants to make a threshold showing of discriminatory effect and intent before ordering further discovery on the selective prosecution claim.
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Simone Sanders was stopped repeatedly under a statute requiring loiterers to provide credible and reliable identification. Officers applied the vague standard only against individuals in certain neighborhoods. The statute supplied no objective guidelines for what counted as credible identification. A court would invalidate the law because the absence of clear standards risked arbitrary and discriminatory enforcement.
Spencer Silver was arrested under an ordinance allowing police to disperse groups that included suspected gang members. Officers enforced the dispersal order only against young men in one neighborhood while leaving similar groups elsewhere undisturbed. The ordinance gave officers no objective criteria for deciding when to issue the order. A court would strike it down as an invitation to discriminatory enforcement lacking adequate standards.
Steven Silva was stopped at a sobriety checkpoint operated only on weekends in one county. State police ran checkpoints far more frequently in that county than in others with comparable drunk-driving rates. The checkpoint program lacked any written criteria explaining the geographic and temporal choices. A court would assess whether the uneven deployment reflected legitimate enforcement priorities or arbitrary selective enforcement.
Santiago Sanchez owned a bookstore whose inventory was seized after a single obscenity conviction. Prosecutors pursued full forfeiture against Sanchez while declining to seek similar asset forfeiture against larger chains convicted of comparable offenses. The statute permitted broad forfeiture but supplied no standards guiding when prosecutors would pursue it. A court would examine whether the selective pursuit of forfeiture violated due process by inviting discriminatory application.
A defendant must produce credible evidence that similarly situated persons of a different race or class were not prosecuted. Only after that threshold showing does the government face an obligation to supply discovery on the claim.
Supporting sources
A statute that fails to supply explicit standards for enforcement invites arbitrary and discriminatory application. Courts therefore invalidate such statutes under the Due Process Clause because they risk selective enforcement against disfavored speakers or groups.
Supporting sources
…its interest in prosecuting homosexual activity despite the gender-neutral terms of the statute may raise serious questions of discriminatory enforcement, questions that cannot be disposed of before this Court on a motion to dismiss. See Yick Wo v. Hopkins , 118 U. S. 356, 373-374 (1886). The legislature having decided that the sex of the…