The Application of Equal Protection Principles to Selective Enforcement of the Criminal Law
![handle is hein.journals/unilllr1973 and id is 96 raw text is: THE APPLICATION OF EQUAL
PROTECTION PRINCIPLES TO
SELECTIVE ENFORCEMENT
OF THE CRIMINAL LAW
Daniel J. Givelber*
I. INTRODUCTION
THE DECISION to proceed against a violator of the criminal law is
made by police and prosecutors in the exercise of their discretion.
According to Professor Kenneth Davis: A public officer has discre-
tion whenever the effective limits on his power leave him free to make
a choice among possible courses of action or inaction.1 Because there
are few effective limits on the power of the police or prosecutor to ig-
nore a violation of the criminal law, these officials have the power to
enforce the law selectively-to prosecute some and not prosecute oth-
ers, when all have engaged in conduct similarly prohibited by a given
criminal law, and when all have an equal chance of being convicted.'
Whether this power of selective enforcement is desirable depends upon
how it is used. Most authorities support nonenforcement of the criminal
law in certain circumstances.3 Examples frequently cited include re-
* Associate Professor, Northeastern University School of Law. B.A. 1961,
LL.B. 1964, Harvard University.
The author wishes to thank Professor Richard Daynard for his helpful
suggestions with respect to judicial review of administrative action.
1. K. DAVIS, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY 4 (1969)
[hereinafter cited as DAVIS].
2. This definition of selective enforcement is somewhat narrower than that em-
ployed by Professor Davis: When an enforcement agency or officer has discretionary
power to do nothing about a case in which enforcement would be clearly justified, the
result is a power of selective enforcement. Such power goes to selection of parties
against whom the law is enforced and selection of the occasions when the law is en-
forced. Selective enforcement may also mean selection of the law that will be en-
forced and of the law that will not be enforced; an officer may enforce one statute
fully, never enforce another, and pick and choose in enforcing a third. DAVIS 163.
This article will concentrate on decisions to enforce a law against one person and to
ignore violations of that same law by others because this kind of selective enforce-
ment is susceptible both of the greatest abuse and of the most effective analysis and
control through the application of equal protection principles.
3. See, e.g., F. MILLER, PROSECUTION: THE DECISION To CHARGE A SUSPECT
WITH A CRIME 158-66 (1969) [hereinafter cited as MILLER]; ABA PROJECT ON](ViewImageLocal?handle=hein.journals/unilllr1973&div=15&collection=journals&method=preview&ext=.png&size=3)
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The Application of Equal Protection Principles to Selective Enforcement of the Criminal Law
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