selective prosecution
Selective prosecution occurs when a prosecutor criminally charges an individual based on unjustifiable standards or characteristics rather than on the merits of an actual, alleged crime. Such characteristics include race, gender identity, religion, political opinions, or another arbitrary classification. Selective prosecution is a violation of the Fifth Amendment’s equal protection and due process rights, and is not protected by prosecutorial discretion. However, selective prosecution is extremely difficult to prove. In Yick Wo v. Hopkins, 118 U. S. (1886), the U.S. Supreme Court decided that defendants must show that a “similarly situated” person was not prosecuted for the same crime. Furthermore, in United States v. Armstrong, 517 U.S. 456 (1996), the Court held that defendants must prove a discriminatory effect and discriminatory intent through clear evidence. Selective prosecution is an independent claim of prosecutorial misconduct, and is not a defense of an alleged crime.
For more information, see the Library of Congress CRS Report on Federal Prosecutorial Discretion: A Brief Overview.
[Last reviewed in June of 2026 by the Wex Definitions Team]
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