United States v. Armstrong
Selective Prosecution Claims
Armstrong's attorney, Barbara E. O'Connor, felt that the Federal Rule of Criminal Procedure 16, which dealt with discovery in criminal cases, supported the result reached in the court of appeals. The rule stated that the government would provide to the defendant documents which are relevant to the defendant's defense, or which will be used by the government as evidence, or were obtained from the defendant. O'Connor argued that government documents that discussed prosecution strategy in cocaine cases were relevant to the selective-prosecution claim. Rehnquist interpreted the rule to mean that documents need only be provided for the defendant's response to the case-in-chief, not for the preparation of selective-prosecution claims.
Rehnquist noted that a selective-prosecution claim asks a court to exercise judicial power over the executive branch's responsibility to prosecute. Rehnquist expressed concern that the performance of a prosecutor's duties not be impaired. If the basis of a prosecution is examined, it delays the criminal proceedings, chills law enforcement, and might undermine the effectiveness of prosecutors by making known the government's enforcement policy.
A selective-prosecution claim requires that the claimant demonstrate that the federal prosecutorial policy "had a discriminatory effect and that it was motivated by a discriminatory purpose." To show the effect was discriminatory in a race case, "the claimant must show that similarly situated individuals of a different race were not prosecuted." Because discovery imposes many costs on the government, diverts prosecutors' resources, and may disclose strategy, the standard for discovery must be as rigorous as the standard for proving a selective-prosecution claim.
The court of appeals made its decision based on the concept that people of all races commit all types of crimes, but statistics do not support this. In fact, statistics show that 90 percent of the people sentenced in 1994 for crack cocaine trafficking were black; 93.4 percent of convicted LSD dealers were white; 91 percent of those convicted for pornography or prostitution were white.
The materials that Armstrong presented failed to show the existence of the essential elements of a selective-prosecution claim. The "study" did not identify individuals who were not black and could have been prosecuted for the same offenses, but who were not prosecuted. The newspaper article was not relevant to discrimination in decisions to prosecute. The affidavits recounted hearsay, personal conclusions, and anecdotal evidence. Rehnquist noted, "We think the required threshold--a credible showing of different treatment of similarly situated persons--adequately balances the Government's interest in vigorous prosecution and the defendant's interest in avoiding selective prosecution." The judgment of the court of appeals was reversed and the case was remanded.
Justice Breyer concurred but noted that the Federal Rule of Criminal Procedure 16 should not limit the defendant's discovery rights to the government's case-in-chief. Breyer held that the rule should provide a broad authorization for discovery.
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