Although prosecutors enjoy wide discretion, they may not prosecute based on a defendant’s “race, religion, or other arbitrary classification.” United States v. Armstrong, 517 U.S. 456, 464 (1996)
To prevail on such a claim, a “defendant must ‘provide evidence that
 persons similarly situated have not been prosecuted’ and that
 ‘the decision to prosecute was made on the basis of an unjustifiable standard, such as race, religion, or some other arbitrary factor.’” Taylor, 686 F.3d at 197 (quoting United States v. Schoolcraft, 879 F.2d 64, 68 (3d Cir. 1989)).
In United States v. Armstrong,1 the Supreme Court granted certiorari to determine the standard of proof for a defendant in a criminal prosecution to obtain discovery in a selective prosecution defense. The five African-American defendants in Armstrong were arrested in a multi-agency sting operation for selling cocaine base.2 They alleged that they were targeted for federal prosecution because of their race,3 and claimed that they were entitled to discovery from the Government because they met the threshold “colorable basis” standard.4
The Supreme Court found that the Ninth Circuit Court of Appeals applied the wrong standard to the discovery motion by failing to require the defendants to prove that “others similarly situated” were not prosecuted.5 Moreover, the Court found that selective prosecution defenses are different from other defenses bearing directly on the merits of the case-in-chief, and, therefore, discovery of selective prosecution claims is not covered by Federal Criminal Rule of Procedure 16.6
The case was remanded for further proceedings. 7 GOODBYE TO TLE DEFENSE OF SELECTIVE PROSECUTION argues that the Supreme Court’s decision in United States v. Armstrong imposes a barrier that is too high for almost any defendant alleging selective prosecution to obtain discovery, thus making the already difficult claim of race-based selective prosecution virtually impossible to prove. Additionally, this note argues that the Court should have adopted Justice Marshall’s three-prong test from his dissent in Wayte v. United States,8 which requires a defendant to meet a lower threshold to obtain discovery in a selective prosecution defense than to prove the claim on the merits at trial.
Selective prosecution is the enforcement or prosecution of criminal laws against a particular class of persons and the simultaneous failure to administer criminal laws against others outside the targeted class. The U.S. Supreme Court has held that selective prosecution exists wherethe enforcement or prosecution of a Criminal law is “directed so exclusively against a particular class of persons … with a mind so unequaland oppressive” that the administration of the criminal law amounts to a practical denial of Equal Protection of the law (United States v.Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 2d 687 , quoting yick wo v. hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220). Specifically, police and prosecutors may not base the decision to arrest a person for, or charge a person with, a criminal offensebased on “an unjustifiable standard such as race, religion, or other arbitrary classification” (United States v. Armstrong, quoting Oyler v.Boles, 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 ).
Selective prosecution is a violation of the constitutional guarantee of equal protection for all persons under the law. On the federal level, the requirement of equal protection is contained in the due process clause of the Fifth Amendment to the U.S. Constitution. The Equal Protection Clause of the Fourteenth Amendment extends the prohibition on selective prosecution to the states. The equal protection doctrine requires that persons in similar circumstances must receive similar treatment under the law.
Selective prosecution cases are notoriously difficult to prove. Courts presume that prosecutors have not violated equal protection requirements, and claimants bear the burden of proving otherwise. A person claiming selective prosecution must show that the prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose. To demonstrate a discriminatory effect, a claimant must show that similarly situated individuals of a different class were not prosecuted. For example, a person claiming selective prosecution of white Protestants must produce evidence that shows that white Protestants were prosecuted for a particular crime and that persons outside this group could have been prosecuted but were not.
The prohibition of selective prosecution may be used to invalidate a law. In Yick Wo v. Hopkins, the U.S. Supreme Court struck down a San Francisco ordinance that prohibited the operation of laundries in wooden buildings. San Francisco authorities had used the ordinance to prevent Chinese from operating a laundry business in a wooden building. Yet the same authorities had granted permission to eighty individuals who were not Chinese to operate laundries in wooden buildings. Because the city enforced the ordinance only against Chinese-owned laundries, the Court ordered that Yick Wo, who had been imprisoned for violating the ordinance, be set free.