The case calls upon the Court to fashion a discovery rule for selective prosecution claims.

Despite the Court's unceasing efforts to purge the administration of justice of racial discrimination, comprehensive contemporaneous studies by the state and federal courts show that racial bias continues to influence decision-making in the criminal justice process. Elimination of bias from judicial proceedings requires that courts take affirmative steps to identify instances in which bias may influence discretionary decision-making and to prevent it from doing so. Information relevant to bias and decision-making must be collected, maintained, and disclosed when necessary to determine whether a decision is bias-influenced. Today, evidence relevant to determining whether decisions of prosecutors are influenced by race is often maintained only by the prosecutor.

These studies as well as other sources show that discretionary decisions by prosecutors in drug prosecutions may sometimes be influenced by racial bias. Courts must be prepared to explore such matters thoroughly whenever a colorable basis for such a claim is presented.

The government's view that discovery is not permissible until the defendant makes a substantial threshold showing of selective prosecution ignores these realities. Such a rule overprotects the government's interest in being free of such discovery, is based upon a false view that evidence tending to show selective prosecution is generally and reasonably available elsewhere, and would, if adopted, impose a crippling burden of production upon citizens facing criminal charges who are often indigent.

The district court utilized the correct approach in this case. Discovery of non-privileged data and charging criteria was ordered only after respondents presented credible evidence suggesting that only African Americans are prosecuted in federal court for sales of cocaine base whereas large numbers of non-blacks are prosecuted in state court where sentences are significantly lighter, and only after the district court gave careful, deliberate consideration to the government's rebuttal evidence. Such issues are best left to the district courts, and the judge in this case clearly did not abuse her discretion.