jurisprudence Jurisprudence, also known as theory of law or philosophy of law, is the examination in a general perspective of what law is and what it ought to be. It investigates issues such as the definition of law; legal validity; legal norms and values ...

, selective prosecution is a procedural defense in which

defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one juris ...

s argue that they should not be held criminally

liable In law, liable means "responsible or answerable in law; legally obligated". Legal liability concerns both civil law and criminal law and can arise from various areas of law, such as contracts, torts, taxes, or fines given by government agencie ...

for breaking the

law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a science and as the ar ...

because the

criminal justice Criminal justice is the delivery of justice to those who have been accused of committing crimes. The criminal justice system is a series of government agencies and institutions. Goals include the rehabilitation of offenders, preventing other ...

system discriminated against them by choosing to

prosecute A prosecutor is a legal representative of the prosecution in states with either the adversarial system, which is adopted in common law, or inquisitorial system, which is adopted in Civil law (legal system), civil law. The prosecution is the ...

. In claims of selective prosecution, defendants essentially argue 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 is a range of social system, social-cultural systems, including designated religious behaviour, behaviors and practices, morals, beliefs, worldviews, religious text, texts, sanctified places, prophecies, ethics in religion, ethics, or ...

, sex,

gender Gender is the range of social, psychological, cultural, and behavioral aspects of being a man (or boy), woman (or girl), or third gender. Although gender often corresponds to sex, a transgender person may identify with a gender other tha ...

, or political alignment, were engaged in the same illegal acts for which the defendant is being tried yet were not prosecuted, and that the defendant is being prosecuted ''specifically'' because of a bias as to that class.

In the United States

In the

United States The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...

, this defense is based upon the 14th Amendment, which stipulates, "nor shall any

state State most commonly refers to: * State (polity), a centralized political organization that regulates law and society within a territory **Sovereign state, a sovereign polity in international law, commonly referred to as a country **Nation state, a ...

deny to any person within its

jurisdiction Jurisdiction (from Latin 'law' and 'speech' or 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, the concept of jurisdiction applies at multiple level ...

the equal protection of the laws." The U.S. Supreme Court has defined the term as: "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. In '' United States v. Armstrong'' (1996), the Supreme Court ruled the

Attorney General In most common law jurisdictions, the attorney general (: attorneys general) or attorney-general (AG or Atty.-Gen) is the main legal advisor to the government. In some jurisdictions, attorneys general also have executive responsibility for law enf ...

and

United States Attorney United States attorneys are officials of the U.S. Department of Justice who serve as the chief federal law enforcement officers in each of the 94 U.S. federal judicial districts. Each U.S. attorney serves as the United States' chief federal ...

s "retain 'broad discretion' to enforce the Nation's criminal laws" and that "in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Therefore, the defendant must present "clear evidence to the contrary", which demonstrates "the federal prosecutorial policy 'had a discriminatory effect and that it was motivated by a discriminatory purpose.'" Selective prosecution has been raised as a possible defense in the election obstruction case of Donald Trump, and as a possible motivation for tax and firearms charges against Hunter Biden.

In the United States

See also

References

Further reading