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Selective Prosecution Versus Selective Exculpation
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19323 |
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Section : |
EDITORIAL
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| Issue
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6 / 1991 |
1,938 Words |
| Author
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Morton A. Kaplan
Editor and Publisher |
Our Currents in Modern Thought section this month examines the fairness of the American justice system in its practical operations. Bennett Gershman's article on the scope for abuse by prosecutors raises particularly troubling questions, among them, who is and is not chosen for prosecution in certain types of cases. Selective prosecution in principle involves an unjust selection of an individual for prosecution. Because I believe the courts have misused the concept, I shall briefly discuss how the concept should be employed.
Even in criminal justice systems that are not overburdened, there must be some sense in which every prosecution is selective. Should a theft be tried before a rape? A blue-collar crime before a white-collar crime?
When the criminal justice system is overburdened, as ours is, selectivity must be even greater. Should cases be tried because of their notoriety, while other, less egregious crimes go unpunished? Should distinctions be made between cases in which alleged violators are more likely to repeat the crime and those in which the crimes are very unlikely to be repeated? Should the severity of the crime be the determining factor?
There is no need to continue these questions. If this is what is meant by selective prosecution, then it cannot be avoided. And, if selective prosecution in this sense constitutes a ground for vacating conviction and punishment, then no one could be convicted and punished.
How can the concept be made meaningful? Former Attorney General Edward Levi once said that anyone could be found guilty of a crime if sufficient resources were devoted to the matter. That points to the solution. Prosecution is selective if it is directed toward the punishment of the offender because of who he is and not because of the crime that was committed. Such prosecution perverts the legal system and transforms it into a weapon the prosecutor turns against his enemies. Therein lies tyranny, not justice.
Are there criteria that enable us to determine whether a prosecution is selective? Alternatively, what criteria can be used to defend a prosecution against this charge?
Is the law such that there is a public interest in enforcing it? Is the decision to prosecute clearly related to the former interest? Is the choice of target, when alternative targets exist, clearly related to legitimate considerations concerning
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