Race and Selective Prosecution: Discovering the Pitfalls of Armstrong
In the Chicago-Kent Law Review, Symposium on Race and Criminal Law, Vol. 73, No. 2, 1998
Posted: 26 Oct 1998
Date Written: April 1998
In United States v. Armstrong, the Supreme Court held that trial judges may not grant a defendant discovery on a selective prosecution claim based on evidence that most or all of those charged with a crime belong to one race, but that the defendant must also provide "some evidence" that the government failed to prosecute similarly situated offenders of another race. The article criticizes this rule for several reasons. First, the Court overestimates the ability of defendants who are targeted on account of race to meet this standard. Defendants with meritorious claims will be unable to find unprosecuted offenders, for example, when the offense occurs in private and the selectivity takes the form of nonenforcement against members of other races. Second, the Court fails to create an appropriate test because it does not discuss more generally what facts are necessary to suggest that race and the decision to prosecute are correlated. The Court seems not to be aware that the evidence it requires is not sufficient to demonstrate a correlation, yet extending the Armstrong analysis to all evidence necessary for a correlation would prevent discovery in virtually any case. In contrast, the article describes an alternative test that would be sensitive to all the facts relevant to a correlation but would not prove insurmountable for defendants with meritorious claims.
Finally, the article considers two fundamental, underlying criticisms of selective prosecution doctrine that might justify Armstrong: (1) that there is little or no racially selective prosecution and (2) that victims of selective prosecution do not merit the remedy of dismissal. The latter objection may be based on a utilitarian argument that dismissals undermine deterrence or a retributive argument that criminals deserve punishment regardless of how others are punished. Upon analysis, the article finds that prosecutor's offices are likely to discriminate as much as other actors in society, that there are utilitarian and retributive reasons to dismiss racially selective prosecutions, and that none of the criticisms justify the Armstrong rule.
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