University of Illinois Law Forum
Selective enforcement of the criminal law is the practice of prosecuting "some and not . . . others, when all have engaged in conduct similarly prohibited by a given criminal law, and when all have an equal chance of being convicted." This practice is an integral part of the American criminal justice system, which traditionally has accepted the assumption that a prosecutor is not required to treat every offender alike. As Justice Burger has stated: "[M]yriad factors can enter into the prosecutor's decision. Two persons may have committed what is precisely the same offense but the prosecutor is not compelled by law, duty or tradition to treat them the same as to charges."' The prosecutor is entitled to consider the past criminal records of the offenders, the time and resources of the prosecutor's staff, and the public's current attitude toward the offense. The prosecutor's task is to weigh the relevant factors and to decide in his discretion which offenders to prosecute.
The courts have been reluctant to review the prosecutor's exercise of his discretion, because they feel that the power to enforce the law belongs to the executive branch of government. They fear that by reviewing prosecutorial decisions, they would be indirectly making enforcement decisions themselves, thus usurping the power of the executive branch and violating the separation of powers doctrine. Moreover, courts suggest that prosecutors, who make enforcement decisions on a daily basis, have greater expertise than courts in the process of weighing the relevant factors. Finally, courts assert that judicial inquiry into the enforcement decision might necessitate examination of the internal discussions and memoranda of the prosecutor's staff. This type of inquiry would inhibit free discussion within the prosecutor's office.
Stefan H. Krieger,
Defense Access to Evidence of Discriminatory Prosecution, 1974 U. Ill. L.F. 648
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