United States v. Armstrong 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed.2d 687 (1996)
The police sent some informants
to buy drugs from Armstrong and his co-conspirators seven times.
The police arrested Armstrong
et. al. and found more drugs and guns during a search.
Armstrong filed a motion for
discovery pursuant to a motion to dismiss on the basis that he and his
cohorts were specifically targeted for Federal prosecution because they
The claim was that when
whites were arrested, they were prosecuted under the State system while
blacks were prosecuted under the Federal system.
The Federal system has much
Armstrong produced evidence
that every one of the 24 cases that the Federal prosecutor brought
involved black defendants. In addition, out of the 3500 Federal cases
brought in Georgia that year, 3489 were against black defendants.
Armstrong noted that the
race statistics for drug users show that African Americans use drugs
about as often as Caucasians did.
Implying that there should
be a lot of unprosecuted white drug dealers out there.
The Trial Court granted the
motion for discovery and ordered the prosecutor to produce evidence about
how they decided to prosecute drug cases. The prosecutor asked for
The prosecutor submitted
their general guidance on how they make prosecutorial decisions, but
there was a lot of data on Armstrong that they did not provide.
The Trial Court denied the
petition for reconsideration. The prosecutor said they could not comply
with the discovery order, so the Trial Court dismissed the case. The
The Appellate Court affirmed.
The prosecutor appealed.
The US Supreme Court reversed
and denied discovery motion.
The US Supreme Court noted
that the standard requirement for a selective-prosecution claim was that
they must demonstrate that there is some evidence that the prosecutor's
policy "had a discriminatory effect and that it was motivated by a discriminatory purpose." That includes a showing that members
of other races were not
prosecuted. Armstrong produced no evidence that there were Caucasians
crack dealers out there that were only being prosecuted in State courts.
See Ah Sin v. Whitman (198 U.S. 500 (1905)).
The Court found that
Armstrong gave no evidence of discriminatory intent. Since a claim must include evidence of both discriminatory
effect and discriminatory
intent, the claim fails.
The Court found that most
of Armstrong's evidence was anecdotal and hearsay.
The Court looked to Fed.R.Crim.P.
16(a) and found that a defendant may
examine documents material to his defense, but may not examine Government
work product in connection to his case.
Basically, the defense can
examine government documents material to the preparation of their
defense against the Government's case-in-chief, but not to the
preparation of selective-prosecution claims.
Since that claim is not a
defense of merits but an independent assertion that the prosecutor has
brought the case for reasons forbidden by the Constitution.
The Court found noted that
the Constitution gives broad discretion to Executive Branch Agencies
(like DOJ) to exercise their power, and the Court is limited in what they
The Court agreed that the
prosecutor's discretion is subject to constitutional restraints, and
Armstrong's allegations could constitute a violation of the 14th
Amendment, and that would be
However, the Court found
that there is a presumption that the prosecutor is acting in accordance
with the Constitution.
And, in order dispel the
presumption that a prosecutor has not violated equal protection, a
criminal defendant must present "clear evidence to the
contrary." That's a high standard.
In a dissent it was argued
that Armstrong probably didn't have a strong case, but there was enough
evidence to show that the Trial Judge did not abuse her discretion in
granting the discovery order.
The dissent noted that 65%
of the people using crack were white, but only 4% of the people convicted
in Federal courts for selling crack were white.
Basically, in order to make a
case for selective prosecution, you have to establish both a discriminatory
effect (aka a disparity), and a discriminatory intent.
Showing evidence of discriminatory
intent often requires data about the
prosecutor's office's thought process. You can't get that data without
This creates a Catch-22.
You need to show discriminatory intent to get discovery, but you can't show evidence of discriminatory
intent without discovery.
That's probably why there
are very very few successful selective prosecution claims.
If the disparity is really
bad, that might be enough to
imply that there is a discriminatory intent.