Selective Prosecution: Illegal or Just Unfair?

Posted on Jun 1, 2017 in Blog Entry: Criminal Cases, Blog Entry: Spinning the Law

This is an excerpt from Spinning the Law by Kendall Coffey. The full book is available for purchase on Amazon here.

So-called selective prosecution is only illegal if a defendant is singled out for a purpose that is itself wrongful, such as discrimination based on race, gender, or political or religious affiliation. Like claims of a prosecutor’s vendetta, allegations of selective prosecution may get some press play but are almost never heard by juries.

Actually, there is nothing illegal about prosecutors being selective. Law enforcement has every right to allocate limited human and financial resources and pursue some but not all perpetrators. No matter how many people are traveling 72 mph in a 55-mph zone, the two who are pulled over have no right to complain about the hundreds who continued to speed on down the highway.

Nor is there anything illegal about targeting high-profile wrongdoers. In fact, in the federal system, where only a small fraction of potential crimes are actually the subject of federal indictments, prioritizing high impact cases is the name of the game. From the prosecutor’s standpoint, a defendant loaded with publicity value creates plenty of free advertising for the message of law enforcement about crimes and punishment. Prosecuting Winona Ryder for shoplifting at Saks Fifth Avenue made a more potent warning to prospective thieves than the conviction of an unknown. Similarly, bringing tax evasion cases against actor Wesley Snipes and businesswoman Leona Helmsley was a powerful message to potential tax cheats.

What makes selective prosecution illegal is an improper purpose. A prosecution mainly motivation by vindictiveness, if provable, would qualify. So would targeting particular political leaders or members of a racial or ethnic minority. But the last time the Supreme Court validated a selective prosecution defense was during the nineteenth century. In the famous case of Yick Wo v. Hopkins, the court found that a San Francisco ordinance imposing stricter requirements on laundries was only enforced if the operators happened to be Chinese.

Unless a discriminatory effect as well as a discriminatory purpose can be proven, no claim will be sustained. Such selectivity could also be a constitutional violation if, say, a prosecutor targeted only defendants of a particular faith or political affiliation. In such instances, it is not the mere act of selecting some defendants rather than others. It is instead selecting them on grounds that violate their First Amendment or equal protection rights.

Much of what is claimed to be discrimination results from efforts to target prominent people. Perhaps celebrities and politicians are indeed discriminated against in this sense, but such extra scrutiny is an occupational hazard. As long as neither political ideology nor demographics are the motivation, it is not illegal discrimination. It is the price of fame.

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