Selective Prosecution

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Selective prosecution is the enforcement of criminal laws against a particular class of persons combined with a simultaneous failure to administer criminal laws against others outside of the targeted class. Claiming selective prosecution is a procedural defense in which the defendant asserts that he should not be held criminally liable for breaking the law because of this discriminatory treatment. The defendant essentially argues that whether or not he is guilty of violating the law is irrelevant because the prosecution was based on forbidden reasons. A selective prosecution claim might entail an argument that other persons of a different age, race, religion or gender were engaged in the same illegal activity as the defendant but were not prosecuted. In such a case, the defendant is claiming to be prosecuted only because of some form of bias.

In common law countries, a prosecutor’s discretion is broad, giving the prosecutor the ability to choose whether or not to bring charges against a defendant. In civil law countries, prosecutorial discretion is comparatively limited and subject to judicial review.[1]

International Law

Prosecutorial discretion at the International Criminal Court is a hybrid of the common law and civil law models. Like common law countries, prosecutions are directed by an independent prosecutor rather than a prosecuting judge. Like civil law countries, however, the ICC prosecutor is subject to close judicial scrutiny by the Pre-Trial Chamber of judges. Defendants in the ICC however do not have a selective prosecution defense, per se, despite the prosecutor’s ability to pick and choose who and how to prosecute.[2]

Specific Country Application

United States

In the U.S., the selective prosecution defense in the federal system is based on the Due Process Clause of the 5th Amendment. The Equal Protection Clause of the 14th Amendment extends the protection against selective prosecution to the individual states by requiring that persons in similar circumstances must receive equal treatment under the law.

A selective prosecution defense is notoriously difficult to prove and thus it is rarely successful. Courts presume that the prosecutor complied with equal protection requirements. The burden of proof is on the defendant to show both that (1) the prosecutorial policy had a discriminatory effect and (2) that it was motivated by a discriminatory purpose.

In United States v. Armstrong, the U.S. Supreme Court set a very high standard of proof for the selective prosecution defense. The Court noted that “[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.”[3] Specifically, a prosecutor cannot base the decision to arrest or charge an individual on “an unjustifiable standard such as race, religion, or other arbitrary classification.”[4]

In this case, the defendant Armstrong, along with other individuals, was arrested for conspiracy to distribute crack cocaine but alleged that he was only chosen for prosecution because of his race. The Court held that in order for a defendant to succeed on a selective prosecution defense, the defendant must show that the government failed to prosecute similarly situated suspects of another race.[5] Placing this burden on the defendant himself makes the likelihood of a selective prosecution claim extremely low.

See Defenses


  1. Jingbo Dong, Prosecutorial Discretion at the International Criminal Court: A Comparative Study, Journal of Politics and Law, Vol. 2, No. 2, at 109 (June 2009), available at
  2. Jingbo Dong, Prosecutorial Discretion at the International Criminal Court: A Comparative Study, Journal of Politics and Law, Vol. 2, No. 2, at 109 (June 2009)
  3. United States v. Armstrong, 517 U.S. 456 (1996), available at
  4. United States v. Armstrong, 517 U.S. 456 (1996), quoting Oyler v. Boles, 368 U.S. 448 (1962)
  5. United States v. Armstrong, 517 U.S. 456 (1996)