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Facing a federal criminal charge is daunting. The stakes are high, the prosecution is well-resourced, and the penalties can be life-altering. However, in certain rare and exceptional cases, a defendant can challenge the very legitimacy of the prosecution itself by asserting a defense known as selective prosecution. This legal doctrine arises from the Fifth Amendment’s guarantee of equal protection and due process. Selective prosecution most often arises in federal cases, where federal cases refers to criminal prosecutions initiated by federal authorities and involves unique legal standards and procedures. When properly raised and supported, a successful claim of selective prosecution can lead to the dismissal of a federal criminal case before it ever reaches trial.
Selective prosecution occurs when the government chooses to prosecute a person not because of the alleged criminal behavior, but because of an arbitrary or discriminatory reason—typically based on race, religion, gender, political affiliation, or another constitutionally protected class or activity. In simple terms, it means that the prosecution has singled someone out unfairly while declining to prosecute others who engaged in the same or worse conduct.
This type of claim strikes at the core of the justice system’s fairness. The government has vast discretion in deciding whom to prosecute—but that discretion is not unlimited. When it is exercised in a discriminatory manner, courts can and do intervene. Choosing a law firm with a dedicated defense team experienced in federal cases is crucial to effectively challenge selective prosecution and protect your rights.
The legal standard for proving selective prosecution is extremely demanding. Under United States v. Armstrong, 517 U.S. 456 (1996), a defendant must satisfy two elements:
A federal motion to dismiss for selective prosecution is a critical legal strategy. Such a motion asserts that the prosecution was initiated for impermissible reasons, challenging the fairness and constitutionality of the prosecution's decision.
This is often called the “similarly situated comparator” test. It’s not enough to show that someone else wasn’t charged—one must show that those people were in similar factual and legal circumstances and were treated more favorably.
In a more recent opinion that involved the 2020 protests, the Ninth Circuit decision reaffirmed Armstrong‘s rigorous standard and clarified that the Ninth Circuit will not tolerate general inferences of bias without concrete comparators and motive. United States v. Wilson, No.23-50016 (9th Cir. 2024).
Procedural Hurdles
Because courts are reluctant to second-guess the executive branch’s prosecutorial decisions, federal motions to dismiss based on selective prosecution must clear some serious hurdles. Such a motion is a critical tool for challenging discriminatory prosecutions and protecting defendants’ rights.
1. Presumption of Regularity
Prosecutorial decisions are entitled to a presumption of regularity. That means courts assume the government is acting in good faith unless the defendant can provide compelling evidence—“clear evidence to the contrary.”
2. Discovery Requirements
The real challenge in asserting selective prosecution lies in discovery. A defendant cannot even get access to the prosecution’s internal decision-making processes without first providing evidence that satisfies the Armstrong test. This is a classic Catch-22: to get discovery, you need evidence of discrimination, but to get evidence of discrimination, you often need discovery. The defense must show that the prosecution's decision was based on discriminatory intent, not just mere speculation.
Courts require “some evidence tending to show the existence of the essential elements” of selective prosecution before allowing discovery. This threshold is steep and requires the defense to do extensive investigation, gather public records, and possibly find whistleblowers or comparable public cases to show that similarly situated people were treated differently.
Discriminatory intent stands at the heart of proving selective prosecution in federal criminal cases. Selective prosecution occurs when a defendant is unfairly targeted for prosecution based on impermissible factors such as race, religion, political affiliation, or other arbitrary classifications, rather than the alleged criminal conduct itself. In the realm of federal criminal defense, establishing discriminatory intent is essential for mounting a successful selective prosecution claim and challenging the prosecution’s decision on constitutional grounds.
The criminal justice system is built on the principle of equal protection, enshrined in the equal protection clause of the Fourteenth Amendment. When discriminatory intent influences the prosecution process, it undermines this fundamental right and constitutes a serious constitutional violation. Defense attorneys must therefore approach these cases with a deep understanding of federal criminal procedure and constitutional law, employing strategic defense tactics to highlight any violations of their client’s constitutional rights.
Proving selective prosecution requires more than just an assertion of unfair treatment; it demands substantial evidence that the defendant was singled out due to discriminatory intent. This often involves gathering compelling evidence such as statistical data showing patterns of bias, documented instances of selective enforcement, or communications that reveal improper motive. The legal process for challenging selective prosecution is complex, and courts require defense attorneys to provide clear, convincing proof that similarly situated individuals were treated differently based on impermissible factors.
Experienced legal professionals play a critical role in this process, leveraging their legal expertise to develop a robust defense strategy. This may include engaging expert witnesses, conducting thorough investigations, and filing motions to dismiss federal charges on the basis of selective prosecution. By effectively arguing that the prosecution’s actions were motivated by discriminatory intent, defense attorneys can seek to have federal charges dismissed and ensure their clients receive comprehensive legal support.
A client-focused approach is essential in these cases, as each selective prosecution claim is unique and requires careful consideration of the facts and legal standards involved. With the right legal representation, defendants can ensure their constitutional rights are protected and that any constitutional violations are brought to light. Ultimately, understanding and proving discriminatory intent is a challenging but vital component of a successful selective prosecution defense, and it underscores the importance of having a dedicated legal team with a thorough understanding of the federal legal system.
Although rare, claims of selective prosecution have succeeded under the right circumstances. The following are notable selective prosecution cases that illustrate how courts have addressed these complex legal challenges:
● Political Retaliation
In United States v. Steele, 461 F.2d 1148 (9th Cir. 1972), a federal appellate court held that a defendant could proceed with a claim of selective prosecution after alleging that he was targeted in retaliation for exercising First Amendment rights. If the government charges someone merely because of their political speech or affiliations, that can form the basis of a viable claim—provided there is evidence of both selective effect and improper motive.
● Racial Profiling in Drug Cases
In Armstrong, the Supreme Court ultimately rejected the claim of selective prosecution, but the case itself involved allegations that federal crack cocaine charges were disproportionately filed against Black defendants, even though white defendants were allegedly engaged in similar conduct and prosecuted in state court instead. While the Armstrong defendants were not granted relief, the case remains the touchstone for asserting this defense.
● Immigration and National Origin
Some defendants in immigration fraud or illegal reentry cases have challenged their prosecutions on the ground that they were singled out based on national origin. These cases face an uphill battle, but if there is evidence that similarly situated individuals of other nationalities were not prosecuted under similar circumstances, the claim may survive a motion to dismiss.
Given the difficulty of prevailing on this claim, it should be used with caution and backed by evidence. Strategic thinking is essential to effectively challenge selective prosecution, as careful planning and analysis can make a significant difference in the outcome. That said, when applied strategically, even an unsuccessful selective prosecution motion can provide value:
Mounting a successful selective prosecution claim requires careful planning and investigation. Having an experienced federal defense team is crucial to building a strong claim and navigating the complexities of federal cases. Here are key steps:
1. Identify Comparators
Who else engaged in the same conduct? Were they prosecuted? If not, why not? The goal is to find specific, identifiable individuals or groups who were similarly situated but treated differently.
2. Investigate Motive
Are there public statements, emails, whistleblower accounts, or other indicators that the prosecution was motivated by race, politics, religion, or retaliation? This could come from media reports, FOIA requests, or defense investigation.
3. File a Motion for Discovery
If there is sufficient evidence of both discriminatory effect and intent, file a motion seeking discovery of prosecution records. The defense must effectively argue both discriminatory effect and intent, using internal memos, charging decisions, communications with law enforcement, and statistical data.
4. File a Motion to Dismiss
If discovery reveals unconstitutional motivation or selective enforcement, move to dismiss the indictment on Fifth Amendment grounds. The motion should include detailed factual comparisons and legal arguments applying Armstrong and related precedents. A successful motion to dismiss can significantly strengthen the defense's position in the case.
Selective prosecution is not a defense to guilt or innocence—it is a constitutional challenge to the legitimacy of the case itself. As such, it is one of the few mechanisms by which a federal criminal case can be dismissed outright before trial.
That said, it is one of the most difficult defenses to prove. Courts defer heavily to prosecutorial discretion, and the evidentiary burden is high. But when the evidence is there—when similarly situated individuals are not charged, and when improper motivations are apparent—a motion to dismiss based on selective prosecution can be a powerful tool for the defense.
If you or someone you know believes they are being unfairly targeted for federal prosecution based on discriminatory or retaliatory reasons, it is critical to consult with an experienced federal criminal defense attorney. Choosing a law firm that offers free initial consultations allows you to discuss your case, receive an honest assessment, and explore possible defense strategies at no cost before making any commitments. These cases require a sophisticated legal strategy, aggressive investigation, and a deep understanding of constitutional law. When done correctly, challenging selective prosecution can not only level the playing field—it can bring the entire case to a halt.
