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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 PROSECUTION IN FEDERAL COURTS 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 prosecution. * 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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