Also known as: selective prosecution · discriminatory prosecution · selective enforcement · discriminatory enforcement
Written by attorneys · grounded in primary & secondary sources — see below
A defense asserting that the government singled out a defendant for prosecution on the basis of an impermissible factor such as race. The claim requires a threshold showing of both discriminatory effect and discriminatory intent, including evidence that similarly situated persons of other races were not prosecuted.
Sylvia Santos, a defense lawyer, held a press conference criticizing a high-profile prosecution as politically motivated. The state bar charged her under a publicity rule containing a vague safe-harbor clause for statements made without elaboration. The disciplinary board applied the rule only to Santos while ignoring similar comments by prosecutors, raising a selective-enforcement claim.
Spencer Silver and three other Black defendants were indicted for crack distribution. They sought discovery showing that similarly situated white suspects had not been prosecuted. Because they offered no evidence that the government declined to prosecute comparable non-Black offenders, the court denied discovery and rejected the selective-prosecution defense.
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Simone Sanders and fellow housing advocates were arrested under a city loitering statute after setting up information tables. Police routinely ignored identical conduct by non-advocacy groups. Sanders challenged the statute on vagueness grounds for failing to supply enforcement standards.
Seth Shapiro operated an adult bookstore whose materials criticized government policy. Federal agents seized the entire inventory under racketeering statutes while leaving comparable non-political businesses untouched. Shapiro challenged the forfeiture as violating the First Amendment.
Sierra Santos was stopped at a sobriety checkpoint located in a predominantly minority neighborhood. Data showed checkpoints were sited and operated far more frequently in minority areas than in affluent districts. Santos challenged the checkpoint program under the Fourth Amendment.
Sofia Stern publicly refused to register for the draft and was indicted. The government prosecuted only those who had openly voiced opposition while ignoring thousands of silent non-registrants. Stern raised selective prosecution, arguing the decision rested on her public expression rather than neutral enforcement criteria.
A defendant must produce some evidence that similarly situated persons of other races were not prosecuted. Without that threshold showing of discriminatory effect and intent, discovery is not required.
No. Statistical disparities must be coupled with evidence that the government acted with discriminatory intent and failed to prosecute similarly situated offenders of other races.
Yes. When a rule lacks clear standards, it creates a risk of arbitrary or discriminatory enforcement that may violate due process.
…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…