Prosecutorial discretion

Georgetown Law Journal, Jun 1998 by Sheer, Lara Beth

712. See Blackledge v. Perry, 417 U.S. 21, 28-29 (1974) (subsequent prosecution for more serious charge after defendant successfully appealed conviction violated due process); Willhauck v. Halpin, 953 F.2d 689, 711 (Ist Cir. 1991) (due process violated when prosecution brought in retaliation for defendant's exercise of her legal rights (citing Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978))); U.S. v. White, 972 F.2d 16, 19 (2d Cir. 1992) (same); U.S. v. Shavers, 820 F.2d 1375, 1377 (4th Cir. 1987) (same); U.S. v. Melancon, 972 F.2d 566, 578 (5th Cir. 1992) (same); U.S. v. Cyprian, 23 F.3d 1189, 1196 (7th Cir. 1994) (same). But see U.S. v. Paguio, 114 F.3d 928, 930 (9th Cir. 1997) (due process is not violated when government's decision to prosecute was based on ulterior motive to pressure a spouse into cooperating in another case, because prosecutor had probable cause to believe that defendant had committed the crime).

713. 470 U.S. 598 (1985).

714. Id. at 602-03. The defendant in Wayte refused to register for the draft and instead wrote letters to government officials stating that he had not registered and did not intend to do so. Id. at 601 n.2. The Department of Justice was given the names of only those who had either reported themselves or were reported by others. Id. at 602. After repeated attempts to persuade the defendant to register, the Justice Department prosecuted him and others for willfully failing to register. Id. at 602-03. The Court conceded that because only 13 of an estimated 674,000 nonregistrants were indicted, the defendant had been prosecuted while other nonregistrants had not. Id. at 604, 609. But the defendant's failure to show that the government based its decision not to prosecute others on an impermissible motive precluded a finding of constitutional violation. Id. at 609-10. The Court noted that "[d]iscriminatory purpose . . . implies more than . . . intent as awareness of consequences. It implies the decision maker . . . selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of' its adverse effects upon an identifiable group." Id. at 611. See also U.S. v. Bell, 113 F.3d 1345, 1351 n.6 (3d Cir.) (defendant's selective prosecution argument was frivolous when she could not establish that she was selected for prosecution for an invidious reason, because she argued only that the government wanted to pursue murder charges against her), cert. denied, 118 S. Ct. 447 (1997); U.S. v. Bell, 86 F.3d 820, 823 (8th Cir.)

(defendant failed to establish that enforcement of statute had a discriminatory effect when he failed to show that he was treated differently than members of other races), cert. denied, 117 S. Ct. 372 (1996); U.S. v. Bauer, 75 F.3d 1366, 1376 (9th Cir. 1996) (defendant failed to fulfill requirements of establishing selective prosecution claim when after an evidentiary hearing, trial court ruled that the decision to prosecute was not based on prejudice, but instead was based on information obtained from informants and government's own investigation), cert. denied, 117 S. Ct. 992 (1997).