Despite the swirling controversy surrounding federal drug prosecutions as well as the contemporary evidence that racial bias continues to influence charging decisions yet is difficult to ferret out, the government seeks a rule which, if adopted, would render it immune from any discovery in nearly all selective prosecution cases, regardless of their merit. The Court should reject this approach because it is based upon a false premise that overprotects the prosecution function and would impose an unrealistic and crippling burden of production upon defendants.


A. The “substantial threshold” rule overprotects the government's interest in preserving broad discretionary prosecution powers.


The government asks the Court to hold that “judicial inquiry into a prosecutor's reasons for bringing a prosecution should not even begin unless there is a substantial and concrete basis for suspecting unconstitutional conduct.” U.S. Brief at 19. Two justifications are advanced in support: “[b]y requiring a significant threshold showing, courts may avoid unwarranted and highly intrusive inquiries into a prosecutor's judgment ... [as well as] prevent the needless diversion of government and judicial resources from the adjudication of the criminal case to the disposition of the selective prosecution motion.” Id. at 20. Neither justifies such a demanding standard.

To acknowledge that the prosecutor enjoys spacious discretion in deciding whom to prosecute is also to recognize that such power “is the power to control and destroy people's lives.” Justice Jackson observed that this broad power of choice held within it the power to abuse “some group of unpopular persons ....” Thus, it is the very breadth of such power that creates the potential for unequal treatment.

The risk of unequal treatment created by standardless discretion is troubling not only as a threat to due process but also in its own right as well. Giving prosecutors the power to invoke or deny punishment at their discretion raises the prospect that society's most fundamental sanctions will be imposed arbitrarily and capriciously and that the least favored members of the community -- racial and ethnic minorities, social outcasts, the poor -- will be treated most harshly.

Prosecutors are clothed with such broad powers for a noble purpose -- to enable them to seek the “equitable objective of individualized justice” within a system of limited resources. But any time the defendant's race enters the calculus, this high purpose is defeated, and the justification for deferential judicial oversight vanishes.

When a citizen makes a colorable showing that race likely influenced the prosecutor's decision to file the pending charge, and claims that she needs access to government files to generate additional proof of invidious discrimination, the Court should require nothing more. Once an honest question is raised about the very legitimacy of the proceeding, it is in the government's interest as much as the defendant's to have the issue resolved conclusively by a neutral magistrate based upon all relevant information. Requiring the defendant to show more serves no purpose other than to suggest that only citizens who are particularly nimble at detecting bias enjoy a meaningful opportunity to be heard.


B. Such a rule is based upon a false premise: that the evidence supporting such a claim is generally and reasonably available


Even though “the fate of those accused of crime is determined by prosecutors ... out of public view -- in the hallways of the courthouse, in the prosecutors' offices, or on the telephone,” the government argues that the evidence necessary to demonstrate selective prosecution is generally available from sources other than the government's files. U.S. Br. at 26-27. Thus, it is suggested, the defense is not unfairly burdened by a substantial threshold rule.

This has surely not been our experience, nor that of other respected students of the issue. Former federal prosecutor Gershman has written that “proving improper motivation ... is extremely difficult, and tends to explain the infrequency with which” selective prosecution claims are advanced. He believes that discovery should follow once “a colorable entitlement or plausible justification” is demonstrated. Former Department of Justice Official Vorenberg agrees:

... the problems involved in proving that a prosecutor had an impermissible motive or personal animus are enormous. Rarely will a prosecutor explicitly signal improper motives. Unless he does, the defendant must try to draw a clear inference of discrimination by comparing his case with those of persons who were not charged, ....

The cases upon which the government relies prove only that in certain unusual circumstances, the defendant may have the ability to present considerable evidence of similarly situated persons who were not prosecuted, as well as some evidence of illicit motive. They hardly make the case for a hard and fast heightened showing in every case. For example, in United States v. Hoover, 727 F.2d 387 (5th Cir. 1984), Hoover was one of three of nearly 300 air traffic controllers criminally prosecuted after going out on strike. He was able to show the pool of similarly situated persons easily because they all belonged to the same union and he was their leader. Similarly, in United States v. Hazel, 696 F.2d 473 (6th Cir. 1983), the defendant was able to show other similarly situated persons who were not prosecuted because they were members of a tax revolt group to which he belonged.

More often, however, and as in this case, citizens claiming selective prosecution have no special or ready access to the identity of similarly situated persons whom prosecuting authorities chose not to prosecute for similar offenses. And where the basis of the motion is racial discrimination, it is extremely rare for public court files to contain information on the defendant's race. As the task forces found, generation of a data base with the identity of such persons that includes their race and ethnic identity is an enormously time-consuming and expensive proposition when undertaken without the cooperation of the prosecuting attorneys' office. Thus, there is little substance to the government's assurance that a heightened burden would not foreclose the assertions of such claims.


C. The “substantial threshold” standard would impose a crippling burden of production


Indeed, the government's argument bears an uncomfortable resemblance to the supporting pillars of the now discredited rule of Swain v. Alabama, 380 U.S. 202 (1965): The government insists that prosecutors are presumed to act in good faith and thus should not be subject even to judicial inquiry into illicit motive in the absence of concrete evidence showing otherwise. Just as unfettered exercise of the peremptory challenge was good for the cause of justice because it gave the government and defense appropriately broad leeway to remove biased jurors who might escape for-cause removal, the government claims similarly broad prosecutorial discretion best assures that limited resources will be used in the most appropriate cases. Courts are ill-equipped, in any event, the argument continues, to review such decisions, and requiring a prosecutor to explain why she is prosecuting a particular case, like having her explain why a peremptory strike was used to eliminate a particular juror, will bring about delay and deflect limited resources from the prosecution of law breakers.

If the Court accepts the government's position, and predicates access to even non-privileged information on defendants' making a robust showing, defendants will be denied meaningful judicial determination of their Equal Protection claims unless they can first pull together a credible composite of selective enforcement from other sources, a task that in many cases will require painstaking review of hundreds of court files, consultation with scores of other attorneys, and pursuing other sources sufficient to generate a body of similarly situated persons not prosecuted.

Such a burden significantly exceeds that which the Court determined, in Batson v. Kentucky, 476 U.S. 79, 92 n.17 (1986), to be crippling. Justice Powell described such a burden through examples from lower court cases:

The lower courts have noted the practical difficulties of proving that the State systematically has exercised peremptory challenges to exclude blacks from the jury on account of race. As the Court of Appeals for the Fifth Circuit observed, the defendant would have to investigate, over a number of cases, the race of persons tried in the particular jurisdiction, the racial composition of the venire and petit jury, and the manner in which both parties exercised their peremptory challenges. [citation omitted] The court believed this burden to be “most difficult” to meet. In jurisdictions where court records do not reflect the jurors' race and where voir dire proceedings are not transcribed, the burden would be insurmountable. [citation omitted]

We now know that the Swain rule was able to shelter for years the intentional discriminatory conduct of certain prosecutors. Adoption of a similar standard here would surely generate similar sorry results.