Prosecutorial discretion

Georgetown Law Journal, Jun 1998 by Sheer, Lara Beth

708. Deal v. U.S., 508 U.S. 129, 133-34 & n.2 (1993) (Court's interpretation of "conviction" and its reading of 18 U.S.C. 924(c)(1) limit prosecutor's ability to determine punishment by manipulating manner of charging); see U.S. v. Medina-Gutierrez, 980 F.2d 980, 984 (5th Cir. 1992) (dictum) (Sentencing Guidelines seek to control count manipulation by prosecutor resulting in inconsistent sentences for similarly situated defendants).

709. Wayte v. U.S., 470 U.S. 598, 608 (1985); see Arcara v. Cloud Books, Inc., 478 U.S. 697, 707 n.4 (1986) (dictum) (prosecutorial discretion limited by First Amendment; public health nuisance charge must not be pretext for suppressing protected materials in adult bookstores); Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886) (prosecutorial discretion limited by equal protection rights; prosecutors may not discriminate against Chinese laundry owners by not prosecuting similarly situated non-Chinese persons); U.S. v. Mastroianni, 749 F.2d 900, 911 (lst Cir. 1984) (prosecutorial discretion limited by fundamental

conceptions of justice); Rashad v. Burt, 108 F.3d 677, 681 (6th Cir. 1997) (prosecutorial discretion limited by Double Jeopardy Clause because government treated defendant's behavior as two separate crimes when two stashes of drugs were stored in different locations and thus subjected defendant to two trials for the same criminal actions), cert. denied, 118 S. Ct. 850 (1998); U.S. v. Bayles, 923 F.2d 70, 72 (7th Cir. 1991) (prosecutorial discretion limited by First Amendment and equal protection rights; decisions to prosecute reviewed to ensure decisions not based on prohibited criteria such as race or speech); U.S. v. Brown, 9 F.3d 1374, 1375 (8th Cir. 1993) (prosecutorial discretion limited by constitutional constraints including equal protection). But see U.S. v. Bauer, 84 F.3d 1549, 1560 (9th Cir. 1996) (prosecutor's decision to prosecute is beyond judicial review without a defendant's prima facie showing that the decision to prosecute rested on an impermissible basis), cert. denied, 117 S. Ct. 992 (1997).

710. See U.S. v. Redondo-Lemos, 27 F.3d 439, 444 (9th Cir. 1994) (court has duty to closely scrutinize evidence of invidious discrimination); Phelps v. Hamilton, 59 F.3d 1058, 1063-64 (lOth Cir. 1995) (federal court authorized to enjoin pending state criminal prosecution under Younger abstention doctrine where prosecution commenced in bad faith or to harass, based on flagrantly and patently unconstitutional statute, or related to any other such extraordinary circumstance creating threat of great and immediate irreparable injury (citing Younger v. Harris, 401 U.S. 37 (1971))).

711. See Wayte, 470 U.S. at 608 (selective prosecution claims should be judged according to ordinary equal protection standards); Yick Wo, 118 U.S. at 373-74 (arrest and prosecution of Chinese laundry owners violated equal protection when similarly situated non-Chinese laundry owners not arrested or prosecuted); Willhauck v. Halpin, 953 F.2d 689, 711 (Ist Cir. 1991) (claim of selective prosecution must be supported by evidence that defendant's equal protection rights were violated); Shaw v. Martin, 733 F.2d 304, 312 (4th Cir. 1984) (claim of selective prosecution must be supported by proof of discriminatory intent or purpose); U.S. v. Andersen, 940 F.2d 593, 596 (lOth Cir. 1991) (claim of selective prosecution must be supported by evidence that prosecutor based decision to charge on "factors such as defendant's race, sex, religion, or exercise of a statutory or constitutional right"); U.S. v. Willis, 956 F.2d 248, 250 (llth Cir. 1992) (per curiam) (claim of selective prosecution must be supported by evidence of unlawful purpose such as discrimination against race).