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Selective prosecution

Legal defense based on claiming the prosecutor is discriminatory

Legal defense based on claiming the prosecutor is discriminatory

In jurisprudence, selective prosecution is a procedural defense in which defendants argue that they should not be held criminally liable for breaking the law because the criminal justice system discriminated against them by choosing to prosecute. In claims of selective prosecution, defendants essentially argue that it is irrelevant whether they are guilty of violating a law, but that the fact of being prosecuted is based upon forbidden reasons. Such a claim might, for example, entail an argument that persons of different age, race, religion, sex, gender, or political alignment, were engaged in the same illegal acts for which the defendant is being tried yet were not prosecuted, and that the defendant is being prosecuted specifically because of a bias as to that class.

In the United States

In the United States, this defense is based upon the 14th Amendment, which stipulates, "nor shall any state deny to any person within its jurisdiction the equal protection of the laws." The U.S. Supreme Court has defined the term as: "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." The defense is rarely successful; some authorities claim, for example, that there are no reported cases in at least the past century in which a court dismissed a criminal prosecution because the defendant had been targeted based on race. In United States v. Armstrong (1996), the Supreme Court ruled the Attorney General and United States Attorneys "retain 'broad discretion' to enforce the Nation's criminal laws" and that "in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Therefore, the defendant must present "clear evidence to the contrary",

Selective prosecution has been raised as a possible defense in the election obstruction case of Donald Trump, and as a possible motivation for tax and firearms charges against Hunter Biden.

References

References

  1. {{cite court. (1996). link
  2. Chin, Gabriel J.. (2008). "Unexplainable on Grounds of Race: Doubts About ''Yick Wo''". University of Illinois Law Review.
  3. {{cite court. (1982). link
  4. {{cite court. (1926). link
  5. which demonstrates "the federal prosecutorial policy 'had a discriminatory effect and that it was motivated by a discriminatory purpose.'"{{cite court. (1962). link
  6. (28 August 2023). "Judge Sets Trial Date in March for Trump's Federal Election Case". The New York Times.
  7. (14 January 2025). "Hunter Biden special counsel hits out at president's selective prosecution claim". Associated Press.
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