| | Prosecutorial discretion and selective prosecution: enforcing protection after United States v. Armstrong.
by Anne Bowen Poulin I think the greatest and most frequent injustice occurs at the discretion end of the scale, where rules and principles provide little or no guidance, where emotions of deciding officers may affect what they do, where political or other favoritism may influence decisions, and where the imperfections of human nature are often reflected in the choices made. Kenneth Culp Davis(1) I. Introduction Consider the following hypothetical: The United States Attorney for a particular district has received many allegations of election violations. The federal prosecutor's office does not have resources to investigate all the reports of election violations or to investigate possible unreported violations in the district. To focus the effort of the office, the United States Attorney decides to concentrate on the counties in which African-American politicians have made gains and to investigate only African-American politicians. Pursuing this racially-focused investigation, the prosecutor finds evidence that may prove Congresswoman Joan Smith, who is African-American, committed election violations. The prosecutor obtains an indictment charging her with those offenses and pursues the prosecution vigorously, hoping to make an example of Congresswoman Smith.(2) Surely this selection process raises serious concerns. It appears that the federal prosecutor has wielded power in a racially discriminatory manner. The prosecution may violate Ms. Smith's constitutional rights, but unfortunately, she may not even be able to obtain a meaningful hearing on the propriety of the prosecutor's actions. Although she may suspect that others were not prosecuted and she was singled out for an improper reason, she is unlikely to have proof In United States v. Armstrong,(3) the Supreme Court made it even more difficult for her to obtain access to information that would permit the court to explore her claims. The law does not dictate precisely how criminal defendants will be selected and, once selected, how they will be treated. Instead, the law accords police officers and prosecutors in our justice system discretion to make these decisions. The exercise of prosecutorial discretion, determining who will be prosecuted and how, sets the tone for the justice system. More importantly, by defining the contours and content of the justice system, it sets the tone for society as a whole. At least in theory, however, that discretion is limited by the Constitution. The Equal Protection and Due Process clauses forbid invidious discrimination in the exercise of prosecutorial discretion. The government may not select criminal defendants on improper grounds such as race or religious exercise. Thus, in some cases, the Constitution prohibits the government from pursuing criminal charges even though the defendant may have violated the criminal law. If our hypothetical congresswoman can prove that her selection was racially driven, then she can invoke the Constitution's protection to bar the prosecution regardless of whether she committed the charged offense. The constitutional violation lies in the discriminatory selection. Nonetheless, Congresswoman Smith may have difficulty invoking the constitutional protection. Although the courts recognize protection from improper selective prosecution as an abstract right, we have never achieved effective enforcement of that right. In Armstrong, the Supreme Court reduced the likelihood that we ever will, by reversing a decision granting discovery to defendants claiming improper selective prosecution and thus fortifing the barriers against defense discovery of evidence to support selective prosecution claims. Even before Armstrong, court-ordered remedies for selective prosecution were extremely rare, but the standard for recovery now established by the Court is so high that most claims may be summarily rejected. Post-Armstrong, a defendant(4) claiming selective prosecution must establish both that others similarly situated have not been prosecuted(5) and that the government's selection was motivated by invidious intent. Thus, our aggrieved politician would have to establish not only that she was selected because of her race but also that politicians of other races who had committed similar infractions were not prosecuted. In Armstrong, the Court addressed the early stages of a selective prosecution claim and held that a trial court should not even order discovery from the government unless the defendant first demonstrates the existence of a control group of similarly situated violators who have not been prosecuted. As discussed below, this holding creates a barrier few defendants are likely to surmount. Consequently, few selective prosecution claims will receive any meaningful judicial hearing. The decreased opportunity to air selective prosecution claims is unfortunate. Protection against selective prosecution not only safeguards important individual rights but also buttresses the integrity of the justice system itself. Abuse of prosecutorial power undermines public ...
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