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6 Rutgers-Cam L.J. 1 (1974-1975)
The One-Sided Sword: Selective Prosecution in Federal Courts

handle is hein.journals/rutlj6 and id is 19 raw text is: THE ONE-SIDED SWORD: SELECTIVE
Mark Lemle Amsterdam*
Federal prosecution like electrical service is a monopoly. It is
produced solely by the Justice Department as an agent of the Execu-
tive. Courts have been generally reluctant to become involved in the
inner workings of the prosecutorial monopoly,' but surprisingly in this
era of withering rights the prosecutorial decision to institute criminal
charges has increasingly been subjected to judicial review.
The purpose of this article is to discuss the factors which consti-
tute unlawful selective prosecution in federal criminal cases. It will
not attempt to discuss in detail the theoretical application of equal pro-
tection concepts,2 nor will it treat the manner in which the state courts
have dealt with    selective prosecution.'     However, by analyzing the
various elements of selective prosecution and the manner in which
courts have treated them, and by briefly discussing the separate but
related topic of bad faith prosecution, it is hoped that a clearer pic-
ture will emerge of the rapidly developing legal theory of selective
* Staff Attorney, Center for Constitutional Rights, New York, N.Y. A.B. Colum-
bia, 1966; J.D. Columbia, 1969. Member New York Bar, several federal circuits and
the United States Supreme Court. The author was counsel of record in United States
v. Banks, 368 F. Supp. 1245 (D.S.D. 1973) discussed infra. The author wishes to
gratefully acknowledge the assistance and enduring patience of Elizabeth Bochnak of
the staff of the Center For Constitutional Rights in the preparation of this article.
1. See, e.g., Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967); United
States v. Cox, 342 F.2d 167 (5th Cir. 1965).
2. A more comprehensive analysis of these issues may be found in Givelber, The
Application of Equal Protection Principles to Selective Enforcement of the Criminal
Law, 1973 U. ILL. L.F. 88 [hereinafter cited as Givelber]; Winston, On Treating Like
Cases Alike, 62 CALIF. L. RPv. 1 (1974). This subject is dealt with briefly in the
second section.
3. A more comprehensive analysis of these issues may be found in Comment, The
Right To Nondiscriminatory Enforcement of State Penal Laws, 61 COLUM. L. REV.
1103 (1961). For a brief discussion of selective enforcement in the context of military
justice see Amsterdam, Pretrial Confinement in the Military-Rights and Realities, 1
NEw ENG. J. ON PRISON LAw 34, 35 (1974).

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