Criminal prosecution based on an unjustifiable standard such as race, religion, or other

ARBITRARY classification.

Selective prosecution is the enforcement or prosecution of criminal laws against a particular class of
persons and the simultaneous failure to administer criminal laws against others out-side the
targeted class. The U.S. Supreme Court has held that selective prosecution exists where the
enforcement or prosecution of a CRIMINAL LAW is "directed so exclusively against a particular class
of persons … with a mind so unequal and oppressive" that the administration of the criminal law
amounts to a practical denial of EQUAL PROTECTION of the law (United States v. Armstrong, 517
U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 2d 687 [1996], quoting YICK WO V. HOPKINS, 118 U.S. 356, 6 S.
Ct. 1064, 30 L. Ed. 220 [1886]). Specifically, police and prosecutors may not base the decision to
arrest a person for, or charge a person with, a criminal offense based on "an unjustifiable standard
such as race, religion, or other arbitrary classification" (United States v. Armstrong, quoting Oyler
v. Boles, 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 [1962]).

Selective prosecution is a violation of the constitutional guarantee of equal protection for all persons
under the law. On the federal level, the requirement of equal protection is contained in the DUE
PROCESS CLAUSE of the FIFTH AMENDMENT to the U.S. Constitution. The Equal Protection Clause
of the FOURTEENTH AMENDMENT extends the prohibition on selective prosecution to the states.
The equal protection doctrine requires that persons in similar circumstances must receive similar
treatment under the law.

Selective prosecution cases are notoriously difficult to prove. Courts presume that prosecutors have
not violated equal protection requirements, and claimants bear the burden of proving otherwise. A
person claiming selective prosecution must show that the prosecutorial policy had a discriminatory
effect and that it was motivated by a discriminatory purpose. To demonstrate a discriminatory effect,
a claimant must show that similarly situated individuals of a different class were not prosecuted. For
example, a person claiming selective prosecution of white Protestants must produce evidence that
shows that white Protestants were prosecuted for a particular crime and that persons outside this
group could have been prosecuted but were not.

The prohibition of selective prosecution may be used to invalidate a law. In Yick Wo v. Hopkins, the
U.S. Supreme Court struck down a San Francisco ordinance that prohibited the operation of
laundries in wooden buildings. San Francisco authorities had used the ordinance to prevent Chinese
from operating a laundry business in a wooden building. Yet the same authorities had granted
permission to eighty individuals who were not Chinese to operate laundries in wooden buildings.
Because the city enforced the ordinance only against Chinese-owned laundries, the Court ordered
that Yick Wo, who had been imprisoned for violating the ordinance, be set free.

Criminal Procedure.