Does Selective Enforcement contradict Equal Protection?


it may be impractical for police officers to issue traffic tickets to every driver they observe exceeding the speed limit, so they may have no choice but to limit action to the most flagrant examples of reckless driving

On the other hand

No State shall ... deny to any person ... the equal protection of the laws

so, technically, the argument that "the officer ticketed me but not this other guy driving next to me at the same speed" should cause the ticket to be thrown out (or this other guy to be immediately ticketed right then and there).

Of course the judge will laugh and dismiss this argument (otherwise everyone would use it to get out of a ticket), but on what logic?

Would the officer saying something like "he was also driving dangerously but I did not write him the 'reckless driving' ticket because I am nice, but I will now if that would make him happy" be a sufficient explanation for the judge?

Can the defense in a criminal case point out to numerous similar un-prosecuted cases and have its own case dismissed based on the 14th amendment? Has it ever happen? E.g., Mr.X is being prosecuted for jaywalking.

  • Defense: here is a video of Ms.A jaywalking and an officer watching and doing nothing
  • Prosecution: we don't prosecute women for jaywalking because "a valid argument"
  • D: here a video of Mr.B jaywalking and an officer watching and doing nothing
  • P: Mr.B is 7 feet tall and we don't prosecute tall people for jaywalking because "a valid argument"
  • D: here a video of Mr.C jaywalking (and he is the same height as the defendant Mr.X) and an officer watching and doing nothing
  • P: Mr.C is wearing a blue suite and we don't prosecute blue suites for jaywalking because "a valid argument"
  • D: here a video of Mr.D jaywalking (and he is the same height as the defendant Mr.X and is wearing a similar jacket to Mr.X's) and an officer watching and doing nothing
  • P: Mr.D is smiling and we don't prosecute smiling people for jaywalking because "a valid argument"
  • D: here a video of Mr.E jaywalking (and he is the same height as the defendant Mr.X and is wearing a similar jacket to Mr.X's, and is not smiling) and an officer watching and doing nothing
  • P: Mr.E is wearing glasses and we don't prosecute people with glasses for jaywalking because "a valid argument"

Wayte v. United States 470 U.S. 598 (1985)

In our criminal justice system, the Government retains "broad discretion" as to whom to prosecute. [...] This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake.

Does this mean that the courts can/will never challenge "decision to prosecute"?

(Again, I am interested in theory and logic more than practicality).

2 Answers 2


A sufficient explanation would be that the ticketed driver was caught and the unticketed driver was not because the officer was already responding to a situation. Had the officer caught the unticketed driver, he would have ticketed him for the same offense. Courts would accept that it would be impossible for the officer to deal with both offenses at the same time.

Selective enforcement is done properly when the prosecutor evaluates the risk verses reward of perusing a criminal prosecution against an individual based on the evidence, the nature of the crime, and the likely-hood of a conviction if it goes to trial. For example, while using illict substances is a crime, the government will usually only prosecute on that charge if they find your use while in possession with intent to sell (or in connection to another crime). In this instant, the high school stoner is not going to be as instrumental in the case as the dealer, who can lead to suppliers if he cooperates OR is removed from distributing in his territory if he does not.

If the stoner is picked up on a minor offense and carrying a small amount on his person, the police might arrest him for the crime but agree to not press charges if he gives them information to who the dealer who sold him the substance is. Again, the risk here is putting a small time criminal into jail at cost of society, when society would benefit more if that cell was housing the bigger fish (a criminal record can prevent getting certain jobs, which will more likely turn stoner high schooler into jobless loser, which would be a drain on public welfare in and of itself, and that's not including the possibility that joining in drug trafficking as a seller would fix his lack of income).

Conversely, in cases such as espionage, the death penalty is on the books but is rarely pursued in favor of lesser sentences. Here, the pay off is that they dangle the death penalty over the spies head unless he tells them about all his spying activities, which benefits the spy agency in filling in security gaps and potentially finding more spies.

The use of lighter charges in exchange for a guilty plea is also favored as trials are costly. If a criminal pleads guilty to a crime that the government has them dead to rights for, the prosecution will reward them with lighter offenses for saving their office the price tag of a full blown trial.

All this is on condition that selective enforcement is not used as a basis of discrimination, which is illegal for the prosecutors to do.


If we were dealing with a fundamental right (such as the right to bear arms, speak, worship, own property, get married), all citizens must be treated equally under the law, and you could not selectively ignore property crimes based on income, hair color, or any other suspect classification. However, even in the case of a clearly-stated constitutional right, to own firearms, it is legal to outlaw possession of firearms in certain restricted circumstances. So fundamental rights are not without context. When dealing with a fundamental right, the government action must be the least restrictive one required to fulfill a compelling governmental purpose (the doctrine of strict scrutiny). There is no fundamental right to drive, much less a right to drive fast: but a second factor triggering strict scrutiny is "suspect classification". A law pertaining to speeding could be deemed unconstitutional if it involved a suspect classification, such as "looking Asian".

In the case of Yick Wo v. Hopkins, 118 US 356, a nominally neutral law required a license for a laundry in San Francisco, with licenses being at the government's discretion. Overwhelmingly, Chinese applicants were dnied a license and non-Chinese applicant were granted one. The court rules that this selective permitting was unconstitutional. The same could be the case with refusal to prosecute. The central issue would be whether the government has a compelling interest in a selective enforcement policy, for example can a first offense speeding ticket for excess speed less than 10 mph be, by policy, reduced to a warning? There are good reasons to do so.

A realistic potential selective enforcement issue would be differential enforcement of traffic laws depending on where the license plate is from – that is, being harsh on out of state speeders and lax on in-state speeders. I don't know if such a practice has been proven to exist, but if it were, there is considerable potential for the practice to be ruled unconstitutional.

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