What About Selective Prosecution? Considerations and Analysis


Joel Cohen, adjunct professor at Fordham Law School has written an op-ed in the New York Law Journal regarding selective prosecution and the ethical obligations associated with it.

Kathleen Kane, the popularly elected Attorney General of Pennsylvania, has now been convicted (she has appealed) and argued, among other things, that she was targeted—selectively prosecuted—basically for not playing by the rules of the “Old Boys’ Club” when she vowed to expose racist, sexist and just plain pornographic emails of state government employees. Specifically, Attorney General Kane was prosecuted, she claims selectively, for perjury and related crimes concerning her alleged leaking of grand jury material relating to her office’s official investigation of government employees. Her pretrial motion to dismiss was denied, and it remains to be seen if she will succeed on appeal.

Unquestionably, prosecutors enjoy tremendous discretion in deciding which persons to charge. It “is the broadest and least regulated power in American criminal law.”1 Cases that actually find that the government abused its authority are rare2 in large part because the U.S. Supreme Court set a very high bar. In Oyler v. Boles, Warden, 368 U.S. 448, 457 (1962), prisoners serving life sentences under West Virginia’s habitual crime statute filed for habeas relief arguing that the statute was applied to only a minority of habitual offenders. In affirming the denial of relief, the court found that “the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation.” The court added that even if it appeared as if the law was selectively enforced, there was no claim that it was based on race, religion or other impermissible class.

Where race was claimed to be a factor by black defendants indicted for selling crack cocaine, even statistical evidence did not carry the day. Courts are simply “properly hesitant to examine the decision whether to prosecute.” This is because it asks the court to exercise power over the executive branch in the face of the presumption of regularity that the prosecution has properly discharged its duties (U.S. v. Armstrong, 517 U.S. 456, 458 (1996)). Factors such as the “strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake.” (Wayte v. U.S., 470 U.S. 598 (1985)).

In order to meet his burden, a defendant must show that the prosecution had a discriminatory effect and that it was motivated by a discriminatory purpose—that he was singled out on the basis of arbitrary, invidious or other improper considerations; and that there was “different treatment of similarly situated persons” (Armstrong, 517 U.S. at 464-65; Gershman (note 2), §4.12). New York’s Court of Appeals—in a case in which it found no selective prosecution—reminded us that a defendant must show “conscious, intentional discrimination” or “a consciously practiced pattern of discrimination.” Even so, “the conscious exercise of some selectivity in enforcement of the law is not in itself a constitutional violation” (People v. Goodman, 31 N.Y.2d 262 (1972); internal quotes and citations omitted).

And “mere suspicion or surmise” that a prosecutor acted improperly is not enough. In rejecting Reverend Sun Myung Moon’s claim that his prosecution for tax evasion was motivated by religious discrimination (remember the Unification Church?), the U.S. Court of Appeals for the Second Circuit explained that if judicial inquiry “could be launched without an adequate factual showing of impropriety, it would lead far too frequently to judicial intrusion on the power of the executive branch to make prosecutorial decisions.” (U.S. v. Moon, 718 F.2d 1210, 1230 (2d Cir. 1983)).

A defendant who was prosecuted only after exposing corrupt practices at the Buildings Department was permitted to prove her claim of selective prosecution (People v. Walker, 14 N.Y.2d 901 (1964)). In another case, an owner of a cut-rate drug store admitted that he sold items on Sundays in violation of statute but argued that other (non-discount) drug stores sold the same items but were not prosecuted. The lower court allowed the jury to decide whether the defendant established “a clear and intentional discrimination” (citing Yick Wo v. Hopkins, 118 U.S. 356 (1886)), yet limited the defendant’s evidence.

The Appellate Division, Fourth Department, remanded, finding that claims of selective prosecution should be heard not as an affirmative defense, but as a pre-trial motion to dismiss on constitutional grounds (People v. Utica Daw’s Drug Company, 16 A.D.2d 12 (1962)).

In adopting this procedure, the Goodman court, supra (at 269), added that a claim of discriminatory enforcement does not reach the issue of guilt or innocence and, therefore, is not within the jury’s province: “It goes, rather, to the more basic threshold question whether the court, as an agency of government, should lend itself to a prosecution that discriminates against the defendant by singling him out for prosecution because of personal animosity, nonconformity, unpopularity, or some other illegitimate reason offensive to our notions of fair play and equal treatment under the law.”

All this said, and putting aside the difficulty of proving improper motivation in prosecutorial decisions, is there an ethical obligation at play here? The ABA Prosecution Function Standards—which is “intended to be used as a guide to professional conduct and performance”—follows case law: A “prosecutor should not invidiously discriminate against or in favor of any person on the basis of race, religion, sex, sexual preference, or ethnicity in exercising discretion to investigate or to prosecute. A prosecutor should not use other improper considerations in exercising such discretion.” (at 3-1.1; 3-3.1).

And New York’s Rules of Professional Conduct (and the ABA Model Rules), at 3.8, Comment 1, tell us that “systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4″—a catch-all of sorts, preventing all attorneys from, e.g., engaging in conduct that adversely reflects the lawyer’s honesty, unlawfully discriminates and adversely reflects on a lawyer’s fitness to practice.

It appears as if D.C. has thus taken an important step that other jurisdictions, including New York, have not yet followed. While the legal bar a defendant faces is high and while an ethical violation won’t typically and standing alone convert an inadequate “legal” motion into a viable one, having ethical standards in place might conceivably go a long way. We are, after all, a society that, at least in principle and hopefully in practice, values a level playing field when it comes to enforcing the law.


Read full op-ed.


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