Legal Definitions - selective prosecution

Selective prosecution occurs when a government prosecutor chooses to pursue criminal charges against one person or group, while intentionally overlooking similar offenses committed by others, and does so for an improper reason. This practice becomes illegal when the decision to prosecute is based on discriminatory factors, such as a person's race, religion, gender, or political beliefs, rather than on legitimate law enforcement considerations. It violates the principle of equal protection under the law, which ensures that all individuals are treated fairly by the legal system.

Here are some examples to illustrate selective prosecution:

• Example 1: Political Affiliation

  A city prosecutor consistently brings charges for minor public disturbance offenses against individuals who participate in protests organized by a specific political party, while rarely prosecuting similar disturbances caused by supporters of other parties or unrelated events. The prosecutor's office has a clear pattern of only targeting one group.

  This illustrates selective prosecution because individuals from one political group are being singled out and charged for offenses that others commit without facing legal action. The underlying reason appears to be their political affiliation, which is an impermissible basis for prosecution under the Equal Protection Clause.

• Example 2: Racial Discrimination

  In a town with a diverse population, the district attorney's office has a documented pattern of prosecuting individuals of a particular ethnic minority for low-level drug possession offenses, even though data shows that people from all ethnic backgrounds in the town use and possess similar quantities of drugs. The prosecution rates for this specific group are significantly higher than for others.

  This demonstrates selective prosecution because members of a specific ethnic group are being disproportionately targeted for prosecution for offenses that are widespread across the community. This suggests that ethnicity, an impermissible factor, is influencing prosecutorial decisions rather than objective law enforcement criteria.

• Example 3: Retaliation

  A state prosecutor brings a series of minor, rarely enforced regulatory charges against a local business owner shortly after the owner publicly criticized the prosecutor's office and supported a rival candidate in an election. No other businesses in the area are facing similar charges for the same minor infractions, which are generally overlooked.

  This is an example of selective prosecution because the business owner is being targeted for charges that are not routinely enforced against others, and the timing and context strongly suggest the prosecution is motivated by retaliation for protected speech. Using prosecutorial power for personal vendettas or to silence critics is an improper basis for exercising discretion.