Selective prosecution
Encyclopedia
In jurisprudence
, selective prosecution is a procedural defense
in which a defendant
argues that they should not be held criminally
liable
for breaking the law
, as the criminal justice
system discriminated
against them by choosing to prosecute. In a claim of selective prosecution, a defendant essentially argues that it is irrelevant whether they are guilty of violating a law, but that the fact of being prosecuted is based upon
forbidden reasons. Such a claim might, for example, entail an argument that persons of different age, race, religion
, or gender
, were engaged in the same illegal actions for which the defendant is being tried and were not prosecuted, and that the defendant is only being prosecuted because of a bias. In the US
, this defense is based upon the 14th Amendment
, which requires that "nor shall any state
deny to any person within its jurisdiction
the equal
protection of the laws."
The United States Supreme Court has defined the term as follows: "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." The defense is rarely successful; some authorities claim, for example, that there are no reported cases in at least the past century in which a court dismissed a criminal prosecution because the defendant had been targeted based on race.
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
, selective prosecution is a procedural defense
Procedural defense
In jurisprudence, procedural defenses are a form of defense, via which a party argues that it should not be held liable for a legal charge or claim brought against it. In common law jurisdictions the term has applications in both criminal law and civil law...
in which a defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
argues that they should not be held criminally
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
liable
Legal liability
Legal liability is the legal bound obligation to pay debts.* In law a person is said to be legally liable when they are financially and legally responsible for something. Legal liability concerns both civil law and criminal law. See Strict liability. Under English law, with the passing of the Theft...
for breaking the law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
, as the criminal justice
Criminal justice
Criminal Justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts...
system discriminated
Discrimination
Discrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...
against them by choosing to prosecute. In a claim of selective prosecution, a defendant essentially argues that it is irrelevant whether they are guilty of violating a law, but that the fact of being prosecuted is based upon
forbidden reasons. Such a claim might, for example, entail an argument that persons of different age, race, religion
Religion
Religion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values. Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life or to...
, or gender
Gender
Gender is a range of characteristics used to distinguish between males and females, particularly in the cases of men and women and the masculine and feminine attributes assigned to them. Depending on the context, the discriminating characteristics vary from sex to social role to gender identity...
, were engaged in the same illegal actions for which the defendant is being tried and were not prosecuted, and that the defendant is only being prosecuted because of a bias. In the US
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, this defense is based upon the 14th Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
, which requires that "nor shall any state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
deny to any person within its jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
the equal
Social equality
Social equality is a social state of affairs in which all people within a specific society or isolated group have the same status in a certain respect. At the very least, social equality includes equal rights under the law, such as security, voting rights, freedom of speech and assembly, and the...
protection of the laws."
The United States Supreme Court has defined the term as follows: "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." The defense is rarely successful; some authorities claim, for example, that there are no reported cases in at least the past century in which a court dismissed a criminal prosecution because the defendant had been targeted based on race.
Further reading
- David Cole, No Equal Justice (New Press rev. ed. 2008) ISBN 978-1565849471
- Angela Davis, Arbitrary Justice: The Power of the American Prosecutor (Oxford 2007) ISBN 978-0195177367
- Cassia Spohn, Samuel Walker & Miriam Delone, The Color of Justice: Race, Ethnicity, and Crime in America (2006) ISBN 978-0534624460
See also
- Equal protection
- Malicious prosecutionMalicious prosecutionMalicious prosecution is a common law intentional tort, while like the tort of abuse of process, its elements include intentionally instituting and pursuing a legal action that is brought without probable cause and dismissed in favor of the victim of the malicious prosecution...