Also known as: selective enforcement · discriminatory enforcement · selective prosecution · discriminatory prosecution
Written by attorneys — see sources 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.
In April 1992, respondents were indicted in the Central District of California on charges of conspiring to possess with intent to distribute more than 50 grams of cocaine base (crack), conspiring to distribute the same, and related federal firearms offenses. Federal and local agents, using confidential informants, made a series of purchases of crack from respondents and observed firearms during several transactions. Respondents were arrested and evidence, including additional crack and a loaded gun, was recovered. In response to the indictment respondents moved for discovery or dismissal, alleging selective prosecution on racial grounds. They submitted an affidavit from a paralegal specialist at the Office of the Federal Public Defender stating that, in every one of 24 § 841 or § 846 cases closed by that office during 1991, the defendant was black, and a study listing those 24 cases with limited information about race and case status. The Government opposed discovery, noting that respondents offered no evidence that the Government had prosecuted nonblack defendants differently or had failed to prosecute them. The District Court ordered expansive discovery: a list of all cases from the prior three years in which the Government charged both cocaine and firearms offenses, the race of defendants in those cases, the levels of law enforcement involved, and the Government's criteria for deciding to prosecute federal cocaine offenses. The Government moved for reconsideration and submitted affidavits and other evidence explaining the basis for prosecuting respondents and disputing the inference of selective prosecution. Agents and an Assistant United States Attorney averred that race played no role in the investigation and that the case met ordinary prosecutorial criteria given the quantity of crack, multiple sales, firearms violations, strong evidence, and defendants' criminal histories. The Government also submitted a published DEA study discussing the dominance of particular groups in large-scale crack trafficking. The District Court denied reconsideration and, when the Government refused to comply with the discovery order, dismissed the indictment. A divided Ninth Circuit panel reversed; the en banc Ninth Circuit affirmed the dismissal, holding that a defendant need not show the Government failed to prosecute similarly situated others to obtain discovery. The Supreme Court granted certiorari to decide the appropriate standard for discovery on a selective-prosecution claim.
View caseSimone 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.
Edward Lawson was detained or arrested on approximately fifteen occasions by San Diego police officers between March 1975 and January 1977 while walking on the streets of the city. On each occasion, officers stopped Lawson and requested that he produce a driver's license or other identification. When he was unable to comply, the officers arrested him under California Penal Code section 647(e). Lawson was prosecuted twice under the statute and convicted once. The second charge was dismissed. Lawson filed a civil action in the United States District Court for the Southern District of California against various officers and officials, including Deputy Chief Commander H. A. Porazzo of the California Highway Patrol. The complaint sought a declaratory judgment that section 647(e) was unconstitutional, a mandatory injunction restraining its enforcement, and compensatory and punitive damages. The District Court held the statute overbroad, enjoined its enforcement, and denied damages on the ground that the officers had acted in good faith. The Court of Appeals for the Ninth Circuit affirmed the District Court's determination that the statute was unconstitutional. It concluded that the statute violated the Fourth Amendment, contained a vague enforcement standard susceptible to arbitrary enforcement, and failed to give fair notice of the conduct prohibited. The Ninth Circuit also reversed the denial of a jury trial on the damages issue and remanded the case for trial. The officers appealed to the Supreme Court from the portion of the judgment declaring the statute unconstitutional and enjoining its enforcement. The Supreme Court noted probable jurisdiction. California Penal Code section 647(e) (West 1970) provides that every person who loiters or wanders upon the streets or from place to place without apparent reason or business is guilty of disorderly conduct, a misdemeanor. The statute further requires that such a person refuse to identify himself and to account for his presence when requested by any peace officer if the surrounding circumstances indicate to a reasonable man that the public safety demands such identification. California courts have construed the statute to require that a detained person provide credible and reliable identification. This identification must carry reasonable assurance that it is authentic and provide means for later contact with the person who has identified himself. The District Court made no specific findings concerning the circumstances of each stop, but the trial transcript contains descriptions given by both Lawson and the officers. One officer testified that he stopped Lawson on an otherwise vacant street late at night because the area was isolated and near a high-crime zone. Another testified that he detained Lawson while walking at a late hour in a business area where burglaries had occurred. Lawson stated that he had never been stopped by police for any reason apart from these detentions under the statute.
View caseSpencer 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.
In 1992 the Chicago City Council enacted the Gang Congregation Ordinance after hearings revealing that gang members intimidated residents by loitering in public places. The ordinance made it unlawful for any person to loiter in a public place with one or more persons knowing that at least one of those persons was a criminal street gang member. The ordinance defined loitering as remaining in any one place with no apparent purpose. It required a police officer who reasonably believed a person to be a gang member loitering with others to order the entire group to disperse, and failure to obey the order was punishable by a fine of up to $500, imprisonment for not more than six months, or up to 120 hours of community service. Two months after enactment the Chicago Police Department issued General Order 92-4 to provide guidelines to govern its enforcement. The order confined arrest authority to members of the Gang Crime Section and other designated officers, established criteria for identifying street gangs and membership, and directed district commanders to designate enforcement areas where gang presence had a demonstrable effect on law-abiding persons. Those designated areas were not released to the public. During the three years the ordinance was enforced, officers issued more than 89,000 dispersal orders and arrested more than 42,000 people. Respondent Jesus Morales and other individuals were charged with violating the ordinance. Trial courts divided on its constitutionality, with some judges upholding it while eleven others ruled it invalid. The Illinois Appellate Court consolidated the cases, affirmed the invalidations, and reversed convictions in the remaining matters. The Illinois Supreme Court affirmed, and the United States Supreme Court granted certiorari.
View caseSteven 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.
In early 1986 the Michigan Department of State Police established a sobriety checkpoint pilot program after its director appointed an advisory committee that included representatives of the State Police, local police departments, state prosecutors, and the University of Michigan Transportation Research Institute. The committee developed written guidelines that required checkpoints to be selected pursuant to written procedures, operated by uniformed officers under the supervision of a field commander, with every vehicle stopped, occupants briefly questioned, and the vehicle visually inspected; only drivers showing signs of intoxication would be directed out of the traffic flow for further investigation. The first and only checkpoint operated under the program ran for seventy-five minutes on the northbound lane of I-75 in Saginaw County on May 2, 1986. During that operation 126 vehicles passed through the checkpoint, the average delay per vehicle was approximately twenty-five seconds, two drivers were arrested for driving under the influence of alcohol, and one driver was arrested for driving with a suspended license. Respondents are two licensed Michigan drivers who regularly travel the state and who were stopped at the checkpoint but not arrested. On the day before the Saginaw County checkpoint they filed a complaint in the Circuit Court of Wayne County seeking declaratory and injunctive relief against the checkpoint program. After trial the Wayne County Circuit Court ruled that the program violated the Fourth Amendment and the Michigan Constitution. The Michigan Court of Appeals affirmed the Fourth Amendment holding, the Michigan Supreme Court denied leave to appeal, and the United States Supreme Court granted certiorari.
View caseSantiago 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.
Ferris J. Alexander, Sr., had been in the adult entertainment business for more than thirty years. He sold pornographic magazines and sexual paraphernalia, showed sexually explicit movies, and sold and rented videotapes of a similar nature. He received shipments of these materials at a warehouse in Minneapolis, Minnesota, where they were wrapped in plastic, priced, and boxed. He then sold his products through some thirteen retail stores in several different Minnesota cities, generating millions of dollars in annual revenues. In 1989, federal authorities filed a forty-one count indictment against Alexander and others. The indictment alleged operation of a racketeering enterprise in violation of RICO. It charged thirty-four obscenity counts and three RICO counts, with the racketeering counts being predicated on the obscenity charges. The indictment also charged numerous counts of tax evasion and related offenses. Following a four-month jury trial in the United States District Court for the District of Minnesota, Alexander was convicted of seventeen substantive obscenity offenses. These included twelve counts of transporting obscene material in interstate commerce and five counts of engaging in the business of selling obscene material. He was also convicted of three RICO offenses predicated on the obscenity convictions. The jury determined that four magazines and three videotapes were obscene under the Miller standards. Alexander was sentenced to a total of six years in prison and fined one hundred thousand dollars. In addition, the District Court reconvened the same jury and conducted a forfeiture proceeding pursuant to 18 U.S.C. § 1963. The Government sought forfeiture of the businesses and real estate representing Alexander's interest in the racketeering enterprise, property affording him influence over that enterprise, and assets and proceeds obtained from his racketeering offenses. The jury found that Alexander had an interest in ten pieces of commercial real estate and thirty-one current or former businesses. The District Court ordered him to forfeit his wholesale and retail businesses, all the assets of those businesses including more than thirteen thousand items of inventory, and almost nine million dollars in moneys acquired through racketeering activity. The Court of Appeals for the Eighth Circuit affirmed Alexander's convictions and the forfeiture order. The Supreme Court granted certiorari to consider whether the forfeiture order violated the First or Eighth Amendments.
View caseA 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