Unequal Justice: The Supreme Court's Failure to Curtail Selective Prosecution for the Death Penalty

By Larson, Jessie | Journal of Criminal Law and Criminology, Summer 2003 | Go to article overview

Unequal Justice: The Supreme Court's Failure to Curtail Selective Prosecution for the Death Penalty


Larson, Jessie, Journal of Criminal Law and Criminology


United States v. Bass, 536 U.S. 862 (2002)

I. INTRODUCTION

In United States v. Bass, (1) the Supreme Court, in a per curiam opinion, ruled on the standard of proof required for a defendant to obtain discovery to support a claim of selective prosecution for the death penalty. The Court held that in order to attain such discovery, a defendant must demonstrate that the prosecutors were motivated by a discriminatory intent and that the prosecutors' conduct had a discriminatory effect upon the defendant. (2) Such a showing may be accomplished by submitting relevant evidence that similarly situated persons were treated differently. (3)

This Note argues that the Supreme Court's decision in United States v. Bass was incorrect. The Court's decision imposes too high a burden upon a defendant seeking to obtain discovery in support of a selective prosecution defense where the Government is seeking the death penalty. In reaching its conclusion, the Supreme Court relied exclusively upon United States v. Armstrong, which set forth the general standard for obtaining discovery in a selective prosecution case: defendants must submit some evidence that similarly situated individuals could have been prosecuted but were not. (4) However, the Court's absolute reliance on Armstrong was misplaced. The pervasive policy consideration underlying the decision in Armstrong was the Court's reluctance to intrude upon the constitutionally granted discretion of the Executive to enforce criminal laws. (5) However, the importance of ensuring that the death penalty is not imposed arbitrarily outweighs the need to maintain the Executive's independence in enforcing criminal laws. The Court should have examined the applicability of its policies in the death penalty context and imposed a lower burden on defendants seeking discovery to support selective prosecution claims in capital cases. The standard created in Bass will likely be highly criticized for preventing meritorious claims of selective prosecution from coming to light in the important cases where a defendant is subject to the death penalty. (6)

Moreover, this Note argues that the Court should have used Bass to reconsider the standard imposed by Armstrong for non-capital selective prosecution cases. While the severe nature of the death penalty requires a more lenient standard, all selective prosecution cases are likely to fail under the current "similarly situated individuals" test. (7) The importance that laws be executed fairly requires that the selective prosecution defense be available in all cases, not only in cases where the death penalty is at stake.

II. BACKGROUND

A. THE SELECTIVE PROSECUTION DEFENSE

The selective prosecution defense arises under the Equal Protection Clause of the Fourteenth Amendment, which states in pertinent part that no state shall "deny to any person within its jurisdiction the equal protection of the laws." (8) Accordingly, the Supreme Court has determined that under the Equal Protection Clause, a decision whether to prosecute may not be based upon "an unjustifiable standard such as race, religion, or other arbitrary classification." (9) Thus, to prove a selective prosecution defense, a defendant must show that administration of a law is, "directed so exclusively against a particular class of persons ... with a mind so unequal and oppressive" that the system results in "a practical denial" of equal protection of the law. (10)

The first case in which the Supreme Court considered the selective prosecution defense was Yick Wo v. Hopkins. (11) In Yick Wo, the petitioners alleged that a San Francisco ordinance limiting the use of wooden buildings as laundry cleaners was enforced exclusively against Chinese individuals. (12) The Supreme Court held that the ordinance violated the Equal Protection Clause because 200 Chinese subjects were prohibited from operating their cleaners in such buildings, while eighty non-Chinese subjects were allowed to continue operating their businesses.

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