The ‘equal protection’ clause of the Fourteenth Amendment forms the basis for the prohibition of selective prosecution whereas it reads:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

As the Fourteenth Amendment provides the basis the United States Supreme Court in United States v. Armstrong has defined the term ‘selective prosecution’ as follows:

“A selective prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.”

Proving selective prosecution is quite difficult and it is incumbent on the defendant meet the burden of proof. According to United States v. Gutierrez, 990 F.2d 472, 476 (9th Cir. 1993) in order to establish a prima facie case of selective prosecution a defendant must show both “(1) that others similarly situated have not been prosecuted, and (2) that the prosecution is based on an impermissible motive, i.e. discriminatory purpose or intent.”

In the United States v. Armstrong et al. and United States v. Gutierrez, respondents’ claim selective prosecution and both cases originated in California. In the first case, respondent Christopher Lee Armstrong, was indicted in the United States District Court for the Central District of California on “charges of conspiring to possess with intent to distribute more than 50 grams of cocaine base (crack) and conspiring to distribute the same.” Prior to the Indictment, Armstrong was being monitored by the United States Bureau of Alcohol, Tobacco and Firearms. Armstrong filed a motion for discovery or dismissal alleging he and the others were selected for federal prosecution because they were black. The government opposed the motion but the District Court granted the motion and ordered the Government “(1) to provide a list of all cases from the last three years in which the Government charged both cocaine and firearms offenses, (2) to identify the race of the defendants in those cases, (3) to identify what levels of law enforcement were involved in the investigations of those cases, and (4) to explain its criteria for deciding to prosecute those defendants for federal cocaine offenses.” The government indicated it would not comply thus the District Court dismissed the case. The government appealed but the Court of Appeals upheld the lower court decision. The case was appealed to the United States Supreme Court. The Court was asked to decide: Whether or not criminal defendants’ who pursue selective-prosecution claims must demonstrate people of other races were not prosecuted for similar crimes? In an 8 to 1 decision the Court ruled that in order to file a selective prosecution claim defendants’ must show that the government failed to prosecute similarly situated defendants of other races.

This was the same outcome in the United States v. Gutierrez case; the burden of proof was on the defendant. In this case, Felipe Gutierrez was convicted of possession with the intent to distribute approximately 243 grams of cocaine within 1000 feet of a school. He appealed his conviction on the grounds that the district courts failed to grant his motion to dismiss for selective prosecution. Gutierrez argued that he was being prosecuted because of his Hispanic background; however, he failed to produce evidence of similarly situated Caucasians who were not prosecuted therefore the motion was denied.

The selective prosecution argument presents a formidable hurdle to overcome for defendants’ but, should defendants’ not shy away from raising it. In light if the fact that there is plenty of data out there that suggests that prosecution decisions are influenced by the race of defendants. Assuming there are facts to support their argument, through discovery, the selective prosecution argument should prevail.