View source for Selective prosecution

{{short description|Legal defense based on claiming the prosecutor is discriminatory}}
{{Globalize|2name=the United States|2=USA|date=August 2024}}
In [[jurisprudence]], '''selective prosecution''' is a [[procedural defense]] in which [[defendant]]s argue that they should not be held criminally [[Legal liability|liable]] for breaking the [[law]] because the [[criminal justice]] system [[discrimination|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 (classification of human beings)|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 [[Fourteenth Amendment to the United States Constitution|14th Amendment]], which stipulates, "nor shall any [[U.S. state|state]] deny to any person within its [[jurisdiction]] the [[social equality|equal]] protection of the laws." The [[Supreme Court of the United States|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."<ref>{{cite court |litigants=United States v. Armstrong |vol=517 |reporter=U.S. |opinion=456 |court=Supreme Court of the United States |date=1996 |url=https://www.law.cornell.edu/supct/html/95-157.ZO.html}}</ref>  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.<ref>{{cite journal |last=Chin |first=Gabriel J. |year=2008 |title=Unexplainable on Grounds of Race: Doubts About ''Yick Wo'' |journal=University of Illinois Law Review |volume=2008 |issue=5 |pages=1359–1392 |url=https://illinoislawreview.org/wp-content/ilr-content/articles/2008/5/Chin.pdf }}</ref> In ''[[United States v. Armstrong]]'' (1996), the Supreme Court ruled the [[Attorney General of the United States|Attorney General]] and [[United States Attorney]]s "retain 'broad discretion' to enforce the Nation's criminal laws"<ref>{{cite court |litigants=United States v. Goodwin |vol=457 |reporter=U.S. |opinion=368 |pinpoint=382 |court=Supreme Court of the United States |date=1982 |url=https://supreme.justia.com/cases/federal/us/457/368/}}</ref> and that "in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties."<ref name=272us1>{{cite court |litigants=United States v. Chemical Foundation, Inc. |vol=272 |reporter=U.S. |opinion=1 |pinpoint=14–15 |court=Supreme Court of the United States |date=1926 |url=https://supreme.justia.com/cases/federal/us/272/1/}}</ref> Therefore, the defendant must present "clear evidence to the contrary",<ref name=272us1/> which demonstrates "the federal prosecutorial policy 'had a discriminatory effect and that it was motivated by a discriminatory purpose.'"<ref>{{cite court |litigants=Oyler v. Boles |vol=368 |reporter=U.S. |opinion=448 |pinpoint=456 |court=Supreme Court of the United States |date=1962 |url=https://supreme.justia.com/cases/federal/us/368/448/}}</ref>

Selective prosecution has been raised as a possible defense in the [[Federal prosecution of Donald Trump (election obstruction case)|election obstruction case of Donald Trump]],<ref name="NYT">{{cite news|url=https://www.nytimes.com/2023/08/28/us/politics/trump-trial-date-jan-6.html |title=Judge Sets Trial Date in March for Trump's Federal Election Case |work=The New York Times |date=28 August 2023 |last1=Feuer |first1=Alan |last2=Thrush |first2=Glenn }}</ref> and as a possible motivation for tax and firearms charges against [[Hunter Biden]].<ref>{{citation|url=https://www.theguardian.com/us-news/2025/jan/14/hunter-joe-biden-special-counsel-report|title=Hunter Biden special counsel hits out at president's selective prosecution claim|publisher=Associated Press|date=14 January 2025}}</ref>

==See also==
*[[Deferred prosecution]]
*[[Equal protection]]
*[[Malicious prosecution]]
*[[Political prisoner]]
*[[Racial profiling]]
*[[Selective enforcement]]
*[[Sentencing disparity]]

==References==
{{reflist}}

==Further reading==
*David Cole, ''No Equal Justice'' (New Press rev. ed. 2008) {{ISBN|978-1-56584-947-1}}
*Angela Davis, ''Arbitrary Justice: The Power of the American Prosecutor'' (Oxford 2007) {{ISBN|978-0-19-517736-7}}
*[[Cassia Spohn]], Samuel Walker & Miriam Delone, ''The Color of Justice: Race, Ethnicity, and Crime in America'' (2006) {{ISBN|978-0-534-62446-0}}

{{Equal protection and criminal procedure|selective|state=expanded}}
{{Miscarriage of Justice}}

{{DEFAULTSORT:Selective Prosecution}}
[[Category:Criminal defenses]]
[[Category:Prosecutorial misconduct]]