Today, I reread United States v. Armstrong, 517 U.S. 456 (1996), in preparation for teaching a class on selective prosecution tomorrow. I remain unpersuaded by the Court’s analysis. The defendants, who were indicted in federal court for dealing crack, sought discovery from the government in order to determine whether they and other black defendants were selected for federal prosecution (and hence for the harsh federal mandatory minimums for crack offenses) because of their race. In support of the motion, they submitted affidavits indicating that all or nearly all federal crack defendants in their district were black, while many crack defendants prosecuted in the local state court system were not black. The district court judge granted the discovery motion, but the Supreme Court later held that the defendants were not entitled to pursue their selective prosecution claim.
The Court’s analysis seems to be driven by a strong presumption against judges second-guessing prosecutorial charging decisions.
Indeed, the Court made no secret of its desire to discourage selective prosecution claims by imposing a heavy burden on defendants: “[T]he showing necessary to obtain discovery should itself be a significant barrier to the litigation of insubstantial claims.”
The Court explained its agenda by reference to the “relative competence of prosecutors and courts”:
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.
The suggestion that all of this is somehow beyond the judiciary seems pretty dubious to me. Assessing the strength of a case is a core judicial competency. As for determining “general deterrence value,” that is pure speculation for anyone — prosecutors are no better able to perform that guesswork than judges. True, judges may not automatically know about the government’s enforcement priorities and plans, but it would not be much of an imposition to have prosecutors explain these things. Judges must learn and make decisions about much more complicated matters all the time (think of patent cases or litigation over sophisticated business transactions or the calculation of natural reserouce damages in environmental cases).
If Armstrong had to be decided on the basis of some cliche regarding relative institutional competence, I’m not sure why the majority’s cliche should be regarded as any more appropriate than the cliche implicitly relied on by Justice Stevens in dissent — the cliche that trial judges are more competent that appellate judges to supervise discovery. As Stevens points out, discovery orders are normally reviewed under the deferential abuse-of-discretion standard. Where a district court judge is persuaded, as in Armstrong, that the benefits of ordering discovery outweigh the costs, why not defer and permit the discovery to go forward?