From American Criminal Law Review, Vol. 34, 1997

Prosecutorial discretion and selective prosecution: enforcing protection after United States v. Armstrong.

by Anne Bowen Poulin

… The law does not dictate precisely how criminal defendants will be selected and, once selected, how they will be treated. Instead, the law accords police officers and prosecutors in our justice system discretion to make these decisions. The exercise of prosecutorial discretion, determining who will be prosecuted and how, sets the tone for the justice system. More importantly, by defining the contours and content of the justice system, it sets the tone for society as a whole.

At least in theory, however, that discretion is limited by the Constitution.  The Equal Protection and Due Process clauses forbid invidious discrimination in the exercise of prosecutorial discretion. The government may not select criminal defendants on improper grounds such as race or religious exercise.…

… Even before Armstrong, court-ordered remedies for selective prosecution were extremely rare, but the standard for recovery now established by the Court is so high that most claims may be summarily rejected. Post-Armstrong, a defendant (4) claiming selective prosecution must establish both that others similarly situated have not been prosecuted (5) and that the government's selection was motivated by invidious intent….

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