3 Chapter Three: Enforcement Decisions

Sections in Chapter 3

Police Decisions
Vagrancy Then and Now
Suspicion: A Closer Look
Prosecutorial Decisions
– Basic Requirements
– Discretion Not to Prosecute
– Discretion Among Offenses
Equal Protection and Other Possible Limitations
End of Chapter Review


Suppose a criminalization decision has been made; a legislature has enacted a new criminal statute. Now what? The enactment of a statute does not, all by itself, generate any prosecutions or convictions. In this sense, a criminal statute is not self-enforcing. Legislatures do not monitor for violations, make arrests, or file charges. These enforcement tasks are instead allocated to executive branch officials—most importantly, police and prosecutors. This chapter offers an overview of police and prosecutorial authority, with a particular focus on the interaction between enforcement authority and criminal statutes.

A few key points are worth noting at the outset, and each should become more clear as you read the chapter. First, police and prosecutors typically have the authority to enforce any criminal statute in the jurisdiction. (We encountered this principle in Chapter One in our study of Commonwealth v. Copenhaver, where we were able to contrast the general enforcement authority of most police officers to the narrower enforcement powers of Pennsylvania county sheriffs.) Broad authority to enforce is the first key idea to keep in mind; the second is broad discretion. By discretion, we mean that enforcement officials typically have a choice about whether to enforce a given statute. For most offenses in most jurisdictions, enforcement is not mandatory. A police officer who observes or suspects an offense has the power to investigate and perhaps make an arrest, but the officer is not obligated to do so. And a prosecutor who receives a report or evidence of an offense has the power to bring charges, but is not obligated to do so.

In addition to authority and discretion, a third important theme of this chapter is suspicion, a topic not traditionally covered in first-year criminal law courses. You have probably often heard it said that a criminal conviction requires proof beyond a reasonable doubt. We will consider standards of proof, and the guilty pleas that are much more common than proof through presentation of evidence, in more detail in the next chapter. Here in this chapter, we focus on enforcement powers rather than convictions, and enforcement powers do not require proof. The power to search or to make an arrest arises as soon as a police officer has a legally adequate level of suspicion, and the same is true for a prosecutor’s power to file charges. This book does not seek to teach you suspicion doctrines in detail; you will look much more closely at the meaning of “reasonable suspicion” or “probable cause” if you take a course on investigative criminal procedure. But this chapter does introduce the basic concept of legally adequate suspicion, since it is the key threshold condition for many criminal law enforcement powers.

The combination of authority, discretion, and suspicion is a potent mix. Long before there is any proof of wrongdoing, and even in cases where no proof is ever established, police and prosecutors gain powers to intrude into individuals’ lives and curtail important liberties. The ability to act on suspicion rather than proof, and the fact of broad enforcement discretion, create opportunities for racial bias to shape criminal law outcomes. That is the final and most important theme to emphasize throughout this chapter: enforcement decisions as a source of significant racial disparities. Criminalization decisions and adjudication decisions can also contribute to racial inequality in criminal law, but enforcement may be the place where racial disparities are most easily identified and documented.

Police Decisions

In the early 1990s, many Chicago citizens were concerned about high levels of violence and drug crime. Many community members expressed particular concern about gang intimidation, reporting that members of criminal gangs would establish control over particular streets or areas and intimidate the residents of that area. In 1992, the city adopted the following ordinance, which was soon challenged in court.

Chicago Municipal Code, § 8–4–015

(a) Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section.

(b) It shall be an affirmative defense to an alleged violation of this section that no person who was observed loitering was in fact a member of a criminal street gang.

(c) As used in this Section:

(1) ‘Loiter’ means to remain in any one place with no apparent purpose.

(2) ‘Criminal street gang’ means any ongoing organization, association in fact or group of three or more persons, whether formal or informal, having as one of its substantial activities the commission of one or more of the criminal acts enumerated in paragraph (3), and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.


(5) ‘Public place’ means the public way and any other location open to the public, whether publicly or privately owned.

(e) Any person who violates this Section is subject to a fine of not less than $100 and not more than $500 for each offense, or imprisonment for not more than six months, or both.

In addition to or instead of the above penalties, any person who violates this section may be required to perform up to 120 hours of community service….



Jesus MORALES et al.

Supreme Court of the United States
527 U.S. 41

Decided June 10, 1999

Justice STEVENS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, and an opinion with respect to Parts III, IV, and VI, in which Justice SOUTER and Justice GINSBURG join.

In 1992, the Chicago City Council enacted the Gang Congregation Ordinance, which prohibits “criminal street gang members” from “loitering” with one another or with other persons in any public place. The question presented is whether the Supreme Court of Illinois correctly held that the ordinance violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution.


… Commission of the offense involves four predicates. First, the police officer must reasonably believe that at least one of the two or more persons present in a “public place” is a “criminal street gang membe[r].” Second, the persons must be “loitering,” which the ordinance defines as “remain[ing] in any one place with no apparent purpose.” Third, the officer must then order “all” of the persons to disperse and remove themselves “from the area.” Fourth, a person must disobey the officer’s order. If any person, whether a gang member or not, disobeys the officer’s order, that person is guilty of violating the ordinance.

Two months after the ordinance was adopted, the Chicago Police Department promulgated … guidelines … to establish limitations on the enforcement discretion of police officers “to ensure that the anti-gang loitering ordinance is not enforced in an arbitrary or discriminatory way.” Chicago Police Department, General Order 92–4. [Only] sworn “members of the Gang Crime Section” and certain other designated officers [are authorized to make arrests under the ordinance, pursuant to] detailed criteria for defining street gangs and membership in such gangs. In addition, the order … provides that the ordinance “will be enforced only within … designated areas.” The city, however, does not release the locations of these “designated areas” to the public.


During the three years of its enforcement [before the ordinance was first held invalid in 1995], the police issued over 89,000 dispersal orders and arrested over 42,000 people for violating the ordinance. In the ensuing enforcement proceedings, 2 trial judges upheld the constitutionality of the ordinance, but 11 others ruled that it was invalid, with one court finding that the “ordinance fails to notify individuals what conduct is prohibited, and it encourages arbitrary and capricious enforcement by police.” We granted certiorari, and now affirm. Like the Illinois Supreme Court, we conclude that the ordinance enacted by the city of Chicago is unconstitutionally vague.


The basic factual predicate for the city’s ordinance is not in dispute. As the city argues in its brief, “the very presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways intimidates residents, who become afraid even to leave their homes and go about their business. That, in turn, imperils community residents’ sense of safety and security, detracts from property values, and can ultimately destabilize entire neighborhoods.” The findings in the ordinance explain that it was motivated by these concerns. We have no doubt that a law that directly prohibited such intimidating conduct would be constitutional[1]but this ordinance broadly covers a significant amount of additional activity. Uncertainty about the scope of that additional coverage provides the basis for respondents’ claim that the ordinance is too vague.

… [An] imprecise laws[] may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests. .. [A]s the United States recognizes, the freedom to loiter for innocent purposes is part of the “liberty” protected by the Due Process Clause of the Fourteenth Amendment. We have expressly identified this “right to remove from one place to another according to inclination” as “an attribute of personal liberty” protected by the Constitution. Williams v. Fears, 179 U.S. 270 (1900); see also Papachristou v. Jacksonville, 405 U.S. 156 (1972).[2]

… [I]t is clear that the vagueness of this enactment makes a facial challenge appropriate. This is not an ordinance that “simply regulates business behavior and contains a scienter requirement.” It is a criminal law that contains no mens rea requirement, and infringes on constitutionally protected rights.

Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement….


“It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits….” Giaccio v. Pennsylvania, 382 U.S. 399 (1966). [T]he definition of [“loiter”] in this ordinance—“to remain in any one place with no apparent purpose”—does not [have a clear meaning]. It is difficult to imagine how any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an “apparent purpose.” If she were talking to another person, would she have an apparent purpose? If she were frequently checking her watch and looking expectantly down the street, would she have an apparent purpose?

Since the city cannot conceivably have meant to criminalize each instance a citizen stands in public with a gang member, the vagueness that dooms this ordinance is not the product of uncertainty about the normal meaning of “loitering,” but rather about what loitering is covered by the ordinance and what is not. The Illinois Supreme Court emphasized the law’s failure to distinguish between innocent conduct and conduct threatening harm. [Although] a number of state courts that have upheld ordinances that criminalize loitering combined with some other overt act or evidence of criminal intent[,] state courts have uniformly invalidated laws that do not join the term “loitering” with a second specific element of the crime.

The city’s principal response to this concern about adequate notice is that loiterers are not subject to sanction until after they have failed to comply with an officer’s order to disperse. “[W]hatever problem is created by a law that criminalizes conduct people normally believe to be innocent is solved when persons receive actual notice from a police order of what they are expected to do.” We find this response unpersuasive for at least two reasons.

… If the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty. Because an officer may issue an order only after prohibited conduct has already occurred, [the officer’s order] cannot provide the kind of advance notice that will protect the putative loiterer from being ordered to disperse. Such an order cannot retroactively give adequate warning of the boundary between the permissible and the impermissible applications of the law.

Second, the terms of the dispersal order compound the inadequacy of the notice…. It provides that the officer “shall order all such persons to disperse and remove themselves from the area.” This vague phrasing raises a host of questions. After such an order issues, how long must the loiterers remain apart? How far must they move? If each loiterer walks around the block and they meet again at the same location, are they subject to arrest or merely to being ordered to disperse again? …

The Constitution does not permit a legislature to “set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.” United States v. Reese, 92 U.S. 214 (1876). This ordinance is … vague “not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.”


The broad sweep of the ordinance also violates “the requirement that a legislature establish minimal guidelines to govern law enforcement.” Kolender v. Lawson, 461 U.S. 352 (1983). There are no such guidelines in the ordinance. In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without first making any inquiry about their possible purposes. It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she may—indeed, she “shall”—order them to disperse.

Recognizing that the ordinance does reach a substantial amount of innocent conduct, we turn, then, to its language to determine if it “necessarily entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat.” Kolender. As we discussed in the context of fair notice, the principal source of the vast discretion conferred on the police in this case is the definition of loitering as “to remain in any one place with no apparent purpose.” As the Illinois Supreme Court interprets that definition, it “provides absolute discretion to police officers to decide what activities constitute loitering.” We have no authority to construe the language of a state statute more narrowly than the construction given by that State’s highest court….

It is true, as the city argues, that the requirement that the officer reasonably believe that a group of loiterers contains a gang member does place a limit on the authority to order dispersal. That limitation would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect, or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members. But this ordinance, for reasons that are not explained in the findings of the city council, requires no harmful purpose and applies to nongang members as well as suspected gang members. It applies to everyone in the city who may remain in one place with one suspected gang member as long as their purpose is not apparent to an officer observing them. Friends, relatives, teachers, counselors, or even total strangers might unwittingly engage in forbidden loitering if they happen to engage in idle conversation with a gang member….


In our judgment, the Illinois Supreme Court correctly concluded that the ordinance does not provide sufficiently specific limits on the enforcement discretion of the police “to meet constitutional standards for definiteness and clarity.” We recognize the serious and difficult problems testified to by the citizens of Chicago that led to the enactment of this ordinance…. However, in this instance the city has enacted an ordinance that affords too much discretion to the police and too little notice to citizens who wish to use the public streets.

Accordingly, the judgment of the Supreme Court of Illinois is


Justice O’CONNOR, with whom Justice BREYER joins, concurring in part and concurring in the judgment.

… As it has been construed by the Illinois court, Chicago’s gang loitering ordinance is unconstitutionally vague because it lacks sufficient minimal standards to guide law enforcement officers. In particular, it fails to provide police with any standard by which they can judge whether an individual has an “apparent purpose.” Indeed, because any person standing on the street has a general “purpose”—even if it is simply to stand—the ordinance permits police officers to choose which purposes are permissible….

It is important to courts and legislatures alike that we characterize more clearly the narrow scope of today’s holding. As the ordinance comes to this Court, it is unconstitutionally vague. Nevertheless, there remain open to Chicago reasonable alternatives to combat the very real threat posed by gang intimidation and violence. For example, the Court properly and expressly distinguishes the ordinance from laws that require loiterers to have a “harmful purpose,” from laws that target only gang members, and from laws that incorporate limits on the area and manner in which the laws may be enforced. … Indeed, as the plurality notes, the city of Chicago has several laws that do [have these additional requirements]. Chicago has even enacted a provision that “enables police officers to fulfill … their traditional functions,” including “preserving the public peace.” Specifically, Chicago’s general disorderly conduct provision allows the police to arrest those who knowingly “provoke, make or aid in making a breach of peace.” See Chicago Municipal Code § 8–4–010 (1992).

In my view, the gang loitering ordinance could have been construed more narrowly. The term “loiter” might possibly be construed in a more limited fashion to mean “to remain in any one place with no apparent purpose other than to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities.” Such a definition would be consistent with the Chicago City Council’s findings and would avoid the vagueness problems of the ordinance as construed by the Illinois Supreme Court….

The Illinois Supreme Court did not choose to give a limiting construction to Chicago’s ordinance. …[W]e cannot impose a limiting construction that a state supreme court has declined to adopt. Accordingly, I join Parts I, II, and V of the Court’s opinion and concur in the judgment.

[Partial concurrences by Justices KENNEDY and BREYER, each concurring in the judgment, omitted.]

Justice SCALIA, dissenting.

The citizens of Chicago were once free to drive about the city at whatever speed they wished. At some point Chicagoans (or perhaps Illinoisans) decided this would not do, and imposed prophylactic speed limits designed to assure safe operation by the average (or perhaps even subaverage) driver with the average (or perhaps even subaverage) vehicle. This infringed upon the “freedom” of all citizens, but was not unconstitutional.

… Until the ordinance that is before us today was adopted, the citizens of Chicago were free to stand about in public places with no apparent purpose—to engage, that is, in conduct that appeared to be loitering. In recent years, however, the city has been afflicted with criminal street gangs. As reflected in the record before us, these gangs congregated in public places to deal in drugs, and to terrorize the neighborhoods by demonstrating control over their “turf.” Many residents of the inner city felt that they were prisoners in their own homes. Once again, Chicagoans decided that to eliminate the problem it was worth restricting some of the freedom that they once enjoyed. The means they took was similar to the second, and more mild, example given above rather than the first: Loitering was not made unlawful, but when a group of people occupied a public place without an apparent purpose and in the company of a known gang member, police officers were authorized to order them to disperse, and the failure to obey such an order was made unlawful. The minor limitation upon the free state of nature that this prophylactic arrangement imposed upon all Chicagoans seemed to them (and it seems to me) a small price to pay for liberation of their streets.


… Both the plurality opinion and the concurrences display a lively imagination, creating hypothetical situations in which the law’s application would (in their view) be ambiguous. But that creative role has been usurped from petitioner, who can defeat respondents’ facial challenge by conjuring up a single valid application of the law. My contribution would go something like this [with apologies to the creators of West Side Story]: Tony, a member of the Jets criminal street gang, is standing alongside and chatting with fellow gang members while staking out their turf at Promontory Point on the South Side of Chicago; the group is flashing gang signs and displaying their distinctive tattoos to passersby. Officer Krupke, applying the ordinance at issue here, orders the group to disperse. After some speculative discussion (probably irrelevant here) over whether the Jets are depraved because they are deprived, Tony and the other gang members break off further conversation with the statement—not entirely coherent, but evidently intended to be rude—“Gee, Officer Krupke, krup you.” A tense standoff ensues until Officer Krupke arrests the group for failing to obey his dispersal order. Even assuming (as the Justices in the majority do, but I do not) that a law requiring obedience to a dispersal order is impermissibly vague unless it is clear to the objects of the order, before its issuance, that their conduct justifies it, I find it hard to believe that the Jets would not have known they had it coming. That should settle the matter of respondents’ facial challenge to the ordinance’s vagueness.


…[T]here is not the slightest evidence for the existence of a genuine constitutional right to loiter. Justice THOMAS recounts the vast historical tradition of criminalizing the activity….


[The plurality claims that] this criminal ordinance contains no mens rea requirement. The first step in analyzing this proposition is to determine what the actus reus, to which that mens rea is supposed to be attached, consists of. The majority believes that loitering forms part of (indeed, the essence of) the offense, and must be proved if conviction is to be obtained. That is not what the ordinance provides. The only part of the ordinance that refers to loitering is the portion that addresses, not the punishable conduct of the defendant, but what the police officer must observe before he can issue an order to disperse; and what he must observe is carefully defined in terms of what the defendant appears to be doing, not in terms of what the defendant is actually doing. The ordinance does not require that the defendant have been loitering (i.e., have been remaining in one place with no purpose), but rather that the police officer have observed him remaining in one place without any apparent purpose. Someone who in fact has a genuine purpose for remaining where he is (waiting for a friend, for example, or waiting to hold up a bank) can be ordered to move on (assuming the other conditions of the ordinance are met), so long as his remaining has no apparent purpose. It is likely, to be sure, that the ordinance will come down most heavily upon those who are actually loitering (those who really have no purpose in remaining where they are); but that activity is not a condition for issuance of the dispersal order.

The only act of a defendant that is made punishable by the ordinance—or, indeed, that is even mentioned by the ordinance—is his failure to “promptly obey” an order to disperse. The question, then, is whether that actus reus must be accompanied by any wrongful intent—and of course it must. As the Court itself describes the requirement, “a person must disobey the officer’s order.” No one thinks a defendant could be successfully prosecuted under the ordinance if he did not hear the order to disperse, or if he suffered a paralysis that rendered his compliance impossible. The willful failure to obey a police order is wrongful intent enough.

* * *

The fact is that the present ordinance is entirely clear in its application, cannot be violated except with full knowledge and intent, and vests no more discretion in the police than innumerable other measures authorizing police orders to preserve the public peace and safety. As suggested by their tortured analyses, and by their suggested solutions that bear no relation to the identified constitutional problem, the majority’s real quarrel with the Chicago ordinance is simply that it permits (or indeed requires) too much harmless conduct by innocent citizens to be proscribed. As Justice O’CONNOR’s concurrence says with disapprobation, “the ordinance applies to hundreds of thousands of persons who are not gang members, standing on any sidewalk … or other location open to the public.”

But in our democratic system, how much harmless conduct to proscribe is not a judgment to be made by the courts. So long as constitutionally guaranteed rights are not affected, and so long as the proscription has a rational basis, all sorts of perfectly harmless activity by millions of perfectly innocent people can be forbidden—riding a motorcycle without a safety helmet, for example, starting a campfire in a national forest, or selling a safe and effective drug not yet approved by the Food and Drug Administration. All of these acts are entirely innocent and harmless in themselves, but because of the risk of harm that they entail, the freedom to engage in them has been abridged. The citizens of Chicago have decided that depriving themselves of the freedom to “hang out” with a gang member is necessary to eliminate pervasive gang crime and intimidation…. This Court has no business second-guessing either the degree of necessity or the fairness of the trade.

I dissent from the judgment of the Court.

Justice THOMAS, with whom THE CHIEF JUSTICE and Justice SCALIA join, dissenting.

…. By invalidating Chicago’s ordinance, I fear that the Court has unnecessarily sentenced law-abiding citizens to lives of terror and misery. The ordinance is not vague. “[A]ny fool would know that a particular category of conduct would be within [its] reach.” Kolender v. Lawson (1983) (White, J. dissenting)….


The human costs exacted by criminal street gangs are inestimable…. Gangs fill the daily lives of many of our poorest and most vulnerable citizens with a terror that the Court does not give sufficient consideration, often relegating them to the status of prisoners in their own homes…. The city of Chicago has suffered the devastation wrought by this national tragedy….

Before enacting its ordinance, the Chicago City Council held extensive hearings.… Following these hearings, the council found that “criminal street gangs establish control over identifiable areas … by loitering in those areas and intimidating others from entering those areas.” It further found that the mere presence of gang members “intimidate[s] many law abiding citizens” and “creates a justifiable fear for the safety of persons and property in the area.” It is the product of this democratic process—the council’s attempt to address these social ills—that we are asked to pass judgment upon today.


As part of its ongoing effort to curb the deleterious effects of criminal street gangs, the citizens of Chicago sensibly decided to return to basics. The ordinance does nothing more than confirm the well-established principle that the police have the duty and the power to maintain the public peace, and, when necessary, to disperse groups of individuals who threaten it….

The plurality’s sweeping conclusion that this ordinance infringes upon a liberty interest protected by the Fourteenth Amendment’s Due Process Clause withers when exposed to the relevant history: Laws prohibiting loitering and vagrancy have been a fixture of Anglo–American law at least since the time of the Norman Conquest…. The American colonists enacted laws modeled upon the English vagrancy laws, and at the time of the founding, state and local governments customarily criminalized loitering and other forms of vagrancy. Vagrancy laws were common in the decades preceding the ratification of the Fourteenth Amendment, and remained on the books long after….

The Court concludes that the ordinance is also unconstitutionally vague because it fails to provide adequate standards to guide police discretion and because, in the plurality’s view, it does not give residents adequate notice of how to conform their conduct to the confines of the law. I disagree on both counts.

At the outset, it is important to note that the ordinance does not criminalize loitering per se. Rather, it penalizes loiterers’ failure to obey a police officer’s order to move along. A majority of the Court believes that this scheme vests too much discretion in police officers. Nothing could be further from the truth. Far from according officers too much discretion, the ordinance merely enables police officers to fulfill one of their traditional functions. Police officers are not, and have never been, simply enforcers of the criminal law. They wear other hats—importantly, they have long been vested with the responsibility for preserving the public peace….

In order to perform their peacekeeping responsibilities satisfactorily, the police inevitably must exercise discretion. Indeed, by empowering them to act as peace officers, the law assumes that the police will exercise that discretion responsibly and with sound judgment. That is not to say that the law should not provide objective guidelines for the police, but simply that it cannot rigidly constrain their every action. By directing a police officer not to issue a dispersal order unless he “observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place,” Chicago’s ordinance strikes an appropriate balance between those two extremes. Just as we trust officers to rely on their experience and expertise in order to make spur-of-the-moment determinations about amorphous legal standards such as “probable cause” and “reasonable suspicion,” so we must trust them to determine whether a group of loiterers contains individuals (in this case members of criminal street gangs) whom the city has determined threaten the public peace. See Ornelas v. United States, 517 U.S. 690 (1996) (“Articulating precisely what ‘reasonable suspicion’ and ‘probable cause’ mean is not possible. They are commonsense, nontechnical conceptions that deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act….”). In sum, the Court’s conclusion that the ordinance is impermissibly vague because it “necessarily entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat” cannot be reconciled with common sense, longstanding police practice, or this Court’s Fourth Amendment jurisprudence.

… In concluding that the ordinance adequately channels police discretion, I do not suggest that a police officer enforcing the Gang Congregation Ordinance will never make a mistake. Nor do I overlook the possibility that a police officer, acting in bad faith, might enforce the ordinance in an arbitrary or discriminatory way. But … [i]nstances of arbitrary or discriminatory enforcement of the ordinance, like any other law, are best addressed when (and if) they arise, rather than prophylactically through the disfavored mechanism of a facial challenge on vagueness grounds.

Check Your Understanding (3-1)

Notes and questions about City of Chicago v. Morales

  1. When police stop an individual, question that person, or make an arrest, what is the source of their power? We first considered this question in Chapter One with Commonwealth v. Copenhaver. Recall that the majority of the Pennsylvania Supreme Court viewed the sheriff’s authority to stop or arrest as a matter of common law, while a partial dissenting opinion argued that the Pennsylvania legislature should define the scope of sheriffs’ authority by statute. In most jurisdictions, police are empowered – either by common law tradition or a statute – to enforce any criminal statute. (They are often empowered to enforce non-criminal statutes, such as civil traffic offenses, as well.) The Chicago ordinance under consideration in Morales seems to give the police a new power: the power to order persons to leave a given area when one or more of the persons gathered is suspected to belong to a criminal gang. If a person ordered to disperse does not do so, then the officer may make an arrest. Statutes that make it a crime to disobey a police officer’s order to disperse are fairly common, but to survive constitutional review, they usually must condition the officer’s power to order persons to disperse on specific circumstances such as an immediate threat to public safety. In Morales, the plurality concluded that given the ambiguity of the term “loitering,” the ordinance was too vague (even with its additional element of suspected gang membership) to meet constitutional requirements of due process.
  2. Why didn’t the police just arrest suspected gang members, instead of ordering them to disperse? “Being a gang member” is not itself a crime, and an attempt to criminalize gang membership itself could be subject to its own constitutional challenges, including the claim that it is a criminalization of status. (Recall the discussion of Robinson v. California and Powell v. Texas in the previous chapter.) But notice that the ordinance defined “criminal street gang” as a group that commits certain criminal acts, and notice also that a police superintendent reported that “90 percent” of the objectionable instances of “gang loitering” involved conduct that was separately criminalized. Why didn’t the police make arrests for “intimidation,” “gang conspiracy,” “disorderly conduct,” or other offenses, rather than rely upon the gang loitering statute? What benefits, to law enforcement officials or to the community more generally, are achieved by the gang loitering statute?
  3. The Chicago ordinance provided that “whenever” an officer observes gang loitering, he “shall” order the persons loitering to disperse. In a footnote not included above, the plurality observed that one could argue that the ordinance “affords the police no discretion, since it speaks with the mandatory ‘shall.’ However, not even the city makes this argument, which flies in the face of common sense that all police officers must use some discretion in deciding when and where to enforce city ordinances.” Morales, 527 U.S. at 63, n. 32. This is an important reminder that in almost all cases, the power of police to enforce statutes is discretionary – police have the option but not the obligation to enforce a given statute. There are specific exceptions to this rule. For example, some jurisdictions have enacted domestic violence statutes with mandatory arrest provisions in an attempt to counter patterns of nonenforcement. But mandatory arrest is a rare exception and not the general rule. And even a mandatory arrest provision may prove difficult to enforce if police simply decline to make the arrest. See Castle Rock v. Gonzales, 545 U.S. 748 (2005).
  4. Analysis of the elements of the Chicago ordinance is not the main focus of any of the opinions in Morales, but each opinion rests on a particular interpretation of the law. As a reminder, it’s useful to practice statutory interpretation with each statute you encounter. The plurality characterized the Chicago ordinance as “a criminal law that contains no mens rea requirement.” Justice Scalia disagreed. What are the elements of the offense, including actus reus and mens rea, according to Scalia? According to the plurality? (Hint: look at the first paragraph of Part I of the plurality opinion, and Part III of Justice Scalia’s opinion.) Compare the plurality’s analysis, and Justice Scalia’s, to the text of the ordinance. Which interpretation seems most accurate to you?
  5. How did Chicago’s anti-loitering efforts play out on the street? In other words, what were the situations and circumstances that led to actual arrests under this ordinance? The U.S. Supreme Court did not go into factual details of specific arrests in its Morales opinion. However, in the defendants’ brief to the state supreme court, there are some descriptions of encounters that led to the arrests of Jesus Morales and other individuals charged with violating the Chicago anti-loitering law. As you read these descriptions, think about suspicion. How do police officers form the suspicion that someone is a gang member?

    [Officer’s version:] Officer Matthew Craig testified at a bench trial that he observed Gregorio Gutierrez standing at the corner of Broadway and Winona Streets with two other men “doing absolutely nothing.” Officer Craig and his partner immediately told them to break up and leave the area. Officer Craig and his partner drove off around the block. When they returned, they saw Gutierrez standing at the same corner and arrested him for gang loitering. According to Officer Craig, Gutierrez had told him on previous occasions that he belonged to the Latin Kings.

    [Defendant’s version:] Gregorio Gutierrez testified that he had left his home with his brother and was walking towards a nearby El stop to go to their mother’s place of employment. Along the way, they stopped to purchase a sandwich and soda from a store. Officer Craig and his partner drove up to them at the corner and arrested them without ever telling them to leave. When Gutierrez asked why he was being arrested, “they told us they don’t like us.” Gutierrez never told Officer Craig that he was a member of the Latin Kings. Gutierrez was no longer a member of the Latin Kings and was not a member on June 3, 1993. No one else with him at the corner was a member of the Latin Kings.

    [Officer’s version:] At a bench trial, Officer Ray Frano testified that he saw approximately six young male Hispanics standing at the street corner by 1100 West Belmont “(t)alking to citizens on the street.” The neighborhood was predominately Caucasian. Officer Frano approached the Hispanic teenagers on the corner with the stated reason: “(b)ecause we wanted to know if they lived in the neighborhood or from the neighborhood.” He told the group of Hispanic teenagers that he would arrest them if they did not leave. Officer Frano left the scene. When he returned later, he arrested Jesus Morales and another person at the corner for gang loitering. According to Officer Frano, he believed Morales was a gang member because Morales wore blue and black clothing.

    [Defendant’s version:] Jesus Morales testified that he was pausing at the intersection while walking on crutches home from a nearby hospital. After Morales told Officer Frano that he had no outstanding warrants, Officer Frano arrested him for gang loitering. Morales himself was not a gang member although he knew that the other person present on the corner was a Gangster Disciple.

    Brief of Defendants-Appellees to Illinois Supreme Court, City of Chicago v. Morales, 1996 WL 33437124 (internal citations omitted).

  6. Consider the accounts above in relation to the statistics reported at the beginning of Part II of the Court’s opinion. The Court states that during the first three years that the ordinance was in effect, “the police issued over 89,000 dispersal orders and arrested over 42,000 people for violating the ordinance.” Assuming these figures are roughly accurate, nearly half of the people who received a dispersal order were ultimately arrested for violating the ordinance. Did half the people who were ordered to disperse simply refuse to do so? Or did police make arrests even without first giving an order to disperse, as suggested by some of the defendants?
  7. While the ordinance was in effect, the Chicago police department issued an order to guide officers in enforcement. This order stated that gang “membership may not be established solely because an individual is wearing clothing available for sale to the general public.” Chicago Police Department, General Order 92-4, quoted in City of Chicago v. Morales, 687 N.E.2d 53, 64 n. 1 (1997). Consider again Officer Frano’s explanations of why he approached Jesus Morales and then ordered him to disperse, quoted above in the excerpt from the defendants’ brief to the state court. Frano mentioned Morales’s clothing, but also the area: he noticed a group of “young male Hispanics” in a predominantly Caucasian neighborhood and wanted to know if they were “from the neighborhood.” Is it fair to say that the ingredients of suspicion here are clothing, race, and place?
  8. In fact, most persons prosecuted under the Chicago ordinance were Black or Latino. See Dorothy Roberts, Foreword: Race, Vagueness, and the Social Meaning of Order Maintenance Policing, 89 J. Crim. L. & Criminology 775, 776 n. 2 (1999). At the same time, defenders of the ordinance, including the Morales dissenters, argued that minority communities supported the ordinance as a way to make their neighborhoods safer. Professor Roberts reports that Blacks and other minority residents actually held conflicting opinions about the ordinance. Should the possibility of racialized patterns of enforcement affect the criminalization decision – that is, the legislative decision to enact a new law? How, if at all, should racialized patterns of enforcement affect the constitutional review of a criminal statute? We return to this question with United States v. Armstrong later in this chapter.
  9. Across jurisdictions, the racialized conception of a “gang” has drawn scholarly attention. Some scholars argue that gangs do tend to be composed of members of the same minority racial group. Others have argued that systemic racial biases shape the labeling of groups as “gangs,” with law enforcement less likely to classify a group of white persons as a criminal gang. For citations to the literature and a close analysis of the “gang” designation in federal prosecutions, see Jordan Blair Woods, Systemic Racial Bias and RICO’s Application to Criminal Street and Prison Gangs, 17 Mich. J. Race & L. 303 (2012).
  10. Void-for-vagueness doctrine is often said to address two separate concerns: first, the worry that a vague law will fail to give individuals fair warning, or notice, that specific conduct will be subject to criminal liability; and second, the worry that a vague law will enable arbitrary or discriminatory enforcement. Notice the connection between discretion and the possibility of discrimination: if police have wide discretion to select persons for loitering arrests, there arises the possibility that they will select persons for arrest on the basis of race (or some other factor not identified in the statute). A third concern, related to the first two, is that vague statutes can blur or collapse the distinction between criminalization decisions and enforcement decisions, so that in effect police decide what conduct is criminal. To express this worry, the Morales plurality quoted Kolender v. Lawson (1983), an earlier decision striking down a loitering statute on vagueness grounds, in part because the statute “necessarily entrust[ed] lawmaking to the moment-to-moment judgment of the policeman on his beat.”
  11. In their dissents, Justice Scalia and Thomas pointed out that American criminal laws have long criminalized “loitering and other forms of vagrancy.” To Scalia and Thomas, this historical tradition was relevant because it suggested that Chicago acted well within its constitutional powers in criminalizing gang loitering. The Morales plurality responded by alluding to the racialized history of vagrancy law, especially the use of vagrancy prosecutions after the Civil War to push Black Americans into forced labor. See footnote 2 above, which was footnote 20 of the unedited opinion. The history of vagrancy offers an important illustration of the interaction between broad criminalization and broad enforcement discretion, as explored later in this chapter.
  12. In 2000, Chicago adopted a revised gang loitering ordinance, taking guidance from Justice O’Connor’s concurring opinion in Morales, and perhaps also from vagrancy statutes that survived constitutional challenges. The new ordinance defines gang loitering as “remaining in any one place under circumstances that would warrant a reasonable person to believe that the purpose or effect of that behavior is to enable a criminal street gang to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities.” Chi. Ill. Mun. Code § 8-5-015 (2000). Do you think the new law avoids the problems of notice or enforcement discretion that the Court found in the first version of the law?

Vagrancy Then and Now

“Laws prohibiting loitering and vagrancy have been a fixture of Anglo-American law at least since the time of the Norman Conquest,” wrote Justice Thomas in his dissent in City of Chicago v. Morales. Morales explored the meaning of the term loiter, but what is “vagrancy”? The term is often associated with idleness, but as a criminal offence, vagrancy is notoriously hard to define. Arguably, that is the point of the term: to capture an array of behaviors or conditions that are not easily defined in a written statute. Here is one typical vagrancy statute:

Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses.

What is a rogue, a vagabond, a wanton person, a habitual loafer? This particular statute, Jacksonville Ordinance Code § 26-57, was found to be unconstitutionally vague in Papachristou v. City of Jacksonville (1972). Until Papachristou, the legitimacy of vagrancy law was largely taken for granted, and even after Papachristou, new versions of vagrancy have persisted, as discussed below. According to one scholar, vagrancy laws were popular among ruling authorities for two reasons. “First, the laws’ breadth and ambiguity gave the police virtually unlimited discretion…. [I]t was almost always possible to justify a vagrancy arrest.” Risa Goluboff, Vagrant Nation 2 (2016). Additionally, “vagrancy laws made it a crime to be a certain type of person…. Where most American laws required people to do something criminal before they could be arrested, vagrancy laws emphatically did not.” Id. “The goals was to prevent crimes which may likely flow from a vagrant’s mode of life…. Such preventive purpose wholly fails if a law enforcement officer must wait until a crime is committed.” Id. (internal quotation marks omitted). Another function of vagrancy and loitering laws, echoed by Chicago’s approach to “gang loitering,” was simply to enable police to clear public spaces of people thought to be dangerous or otherwise undesirable. Once brought to court, many persons arrested for vagrancy would be offered dismissal of the charges on the condition that they leave the area and not return.

But in other contexts, the point of a vagrancy arrest was very different. As the Morales plurality mentioned [Fn. 2 in the opinion as edited above], “vagrancy laws were used after the Civil War to keep former slaves in a state of quasi slavery.” The Thirteenth Amendment to the U.S. Constitution abolishes slavery “except as a punishment for crime.” After the Thirteenth Amendment was adopted, many southern states sought to replace the lost labor of enslaved persons through a practice known as “convict leasing.” Black men and women were arrested and prosecuted for vagrancy, then “leased” or “sold” to companies that would force them to labor. A Pulitzer-Prize-winning historical study of convict leasing opens with this example:

On March 30, 1908, Green Cottenham was arrested by the sheriff of Shelby County, Alabama, and charged with vagrancy.

Cottenham had committed no true crime. Vagrancy, the offense of a person not being able to prove at a given moment that he or she is employed, was … dredged up from legal obscurity at the end of the nineteenth century by the state legislatures of Alabama and other southern states. It was capriciously enforced by local sheriffs and constables, adjudicated by mayors and notaries public … and, most tellingly in a time of massive unemployment among all southern men, was reserved almost exclusively for black men. Cottenham’s offense was blackness.

… Cottenham was found guilty in a swift appearance before the county judge and immediately sentenced to a thirty-day term of hard labor. Unable to pay the array of fees assessed on every prisoner … Cottenham’s sentence was extended to nearly a year of hard labor. The next day, Cottenham was sold [to a mining company which would] pay off Cottenham’s fine and fees.

Douglas Blackmon, Slavery By Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II (2008).

Convict leasing eventually came to an end after World War II, in part because of a change in enforcement decisions: federal prosecutors finally began to enforce the federal statutes that made “peonage,” or the use of forced labor, into a crime. Even so, the separate vagrancy statutes remained valid law. Indeed, even after the 1972 Papachristou decision struck down the Jacksonville vagrancy ordinance quoted above, and called into question the constitutionality of similar laws, vagrancy did not exactly fade to obscurity. Florida enacted a new vagrancy law that made it a crime “to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” (See Goluboff, Vagrant Nation, p. 331.) Chicago similarly re-enacted a new version of its gang loitering ordinance after Morales, as discussed above. The revised Florida loitering law and the revised gang loitering ordinance are still in place as of 2021.

Suspicion: A Closer Look

City of Chicago v. Morales concerned a statute that specifically empowered police to act in particular way—to order persons to disperse. Most criminal statutes don’t explicitly authorize police actions or even mention the police at all, but any criminal statute is nonetheless a source of power for the police. That is because police are generally empowered to stop and arrest persons, or conduct other investigative activities, whenever they have adequate suspicion of criminal activity. In other words, if a statute defines a crime of “knowing conversion” of government property, like the statute that was applied in United States v. Morissette in Chapter Two, then an officer who has legally adequate suspicion of knowing conversion is automatically empowered to stop, question, or arrest the person suspected of this offense. You first encountered this point with Commonwealth v. Copenhaver in Chapter One, but it is sufficiently important to emphasize again: once an act is defined as criminal, state officials have not only the authority to punish that act, but also the authority to police it – to investigate, search, and arrest when the officials suspect that someone has engaged or is going to engage in the proscribed act.

The requisite levels of suspicion are defined primarily by constitutional doctrine. The Fourth Amendment prohibits “unreasonable searches and seizures,” and this language is the basis of the constitutional framework to evaluate police stops, searches, arrests, and other investigative activities. In the course of interpreting the Fourth Amendment, the Supreme Court has determined that a reasonable search or seizure is one that is based on “reasonable suspicion” of criminal activity or “probable cause” to believe that a crime has occurred.

“Reasonable suspicion” and “probable cause” are notoriously ambiguous concepts, but each of these legal standards generally requires an officer to identify some attribute of the individual person or place that led the officer to suspect criminal activity. An officer can establish reasonable suspicion by noting that the individual matched a description of a specific suspect, for example, or was behaving in a manner known to the officer to be characteristic of persons engaged in narcotics trafficking. Officers are empowered to stop and question an individual whenever they have “reasonable suspicion,” but a full arrest requires “probable cause.” The Supreme Court has said very little about the distinction between reasonable suspicion and probable cause, other than to indicate that probable cause is a slightly higher threshold than reasonable suspicion. But either standard is relatively easy for officers to satisfy. A record-keeping form used by the New York Police Department, UF-250, is reproduced below to give you an idea of the kinds of observations police frequently invoke to establish reasonable suspicion. For example, the UF-250 form identifies as possible reasons for a stop, “furtive movements,” “wearing clothing/disguises commonly used in commission of crime,” “area has high incidence of reported offense of type under investigation,” and “changing direction at sight of officer / flight.”


Blank UF-250 form

Given that reasonable suspicion and probable cause are low thresholds, police officers will have the legal authority to stop, question, or arrest many more individuals than they can actually pursue. That means that officers must choose when, given the presence of reasonable suspicion or probable cause, they will actually initiate an investigation. What factors influence this choice? How do officers decide which persons merit a stop or arrest, and which ones can be ignored? Police officers are not necessarily motivated by the same goals as prosecutors. Prosecutors are typically more focused on securing convictions than police officers are. Officers may have more immediate aims, such as to resolve a present conflict, to preserve order, or to protect their own authority. They may make an arrest without necessarily expecting a conviction to be the ultimate result.

The UF-250 form presented above provides one source of insight into police decisionmaking. Over the course of litigation against the New York Police Department, advocates and social scientists analyzed extensive data concerning millions of police stops, including details of the factors cited by police as giving rise to suspicion. The analysis suggested that, especially when pressured by commanders to maximize the number of people stopped, officers followed certain “scripts” to rationalize stops based on very little information about the individual who is stopped. Over time, officers identified “evasive / furtive movements” and “high crime area” with increasing frequency as reasons for stops. See Jeffrey Fagan & Amanda Geller, Following the Script: Narratives of Suspicion in Terry Stops in Street Policing, 82 U. Chi. L. Rev. 51 (2015).

The UF-250 form tracks other information beyond the basis of suspicion, such as the race of the person stopped, whether the police used force, whether the police did find a weapon or other contraband. By analyzing records of millions of stops, litigants were able to establish that police stopped Black and Latino persons, and used force against them, disproportionately often in relation to the overall population of these groups in New York City. But the police were actually slightly more likely to find weapons or other contraband when they stopped white persons (perhaps because stops of white persons were based on more careful determinations of suspicion). See Floyd v. City of New York, 959 F. Supp. 2d 540, 558-559 (S.D.N.Y. 2013). The Floyd court found that “blacks are likely targeted for stops based on a lesser degree of objectively founded suspicion than whites,” id. at 560, and the court found NYPD’s stop-and-frisk practices to violate both the Fourth and Fourteenth Amendments.

The data discussed by the Floyd court is consistent with broader empirical data discussed in Chapter One: persons of color (especially Black persons) are subject to criminal interventions, including stops and arrests, disproportionately often. According to the U.S. Supreme Court, the Fourth Amendment does not prohibit police from using race as a relevant factor in selecting among persons to stop or arrest (so long as the police can satisfy the reasonable suspicion or probable cause standards), but other provisions of the federal constitution may prohibit race-based enforcement choices. The last section of this chapter considers equal protection doctrine and its application to both policing and prosecutorial choices.

You will have the opportunity to study Fourth Amendment law in much more detail in an upper-level course on constitutional criminal procedure. For purposes of this first-year course, you need not worry about the nuances of either of the Fourth Amendment suspicion thresholds mentioned above, “probable cause” or “reasonable suspicion.” It is enough to know that once an officer does have the requisite suspicion that a person is engaging in, or has engaged in, a crime, the officer is then empowered to investigate further. And because the Fourth Amendment suspicion thresholds are low, officers usually have the opportunity, and indeed the necessity, to select some individuals for further investigation and let others go.

There is thus some tension between Fourth Amendment doctrine, which grants police broad discretion, and the void-for-vagueness doctrine as presented by the plurality in Chicago v. Morales. Justice Thomas noted this tension in his Morales dissent, arguing that we should simply embrace police discretion in both contexts: “Just as we trust officers to rely on their experience and expertise to make spur-of-the-moment determinations about amorphous legal standards such as ‘probable cause’ and ‘reasonable suspicion,’ so we must trust them to determine whether a group of loiterers contains individuals (in this case members of criminal street gangs) whom the city has determined threaten the public peace.” City of Chicago v. Morales, 527 U.S. 41, 109-110 (1999) (Thomas, J., dissenting). One scholar has argued that “vagueness doctrine is best seen as an adjunct to Fourth Amendment law, not as a serious check on crime definition.” William J. Stuntz, The Political Constitution of Criminal Justice, 119 Harv. L. Rev. 780, 790 n. 54 (2006).

Prosecutorial Decisions

Basic Requirements

It is a prosecutor, not a police officer, who decides whether a person suspected of criminal activity, or even arrested for it, will ultimately be formally charged with a crime. Charging decisions include choices such as whether a given person will be charged at all; which offense or offenses will be charged; whether charges will later be dropped or added. Prosecutors typically have the power to make these decisions with relatively few constraints. A victim or a police officer may file a complaint alleging the commission of a crime, but even then, it is usually the prosecutor who decides whether to file formal charges. In most U.S. jurisdictions, the minimum threshold for a formal charge is again “probable cause” – a prosecutor should not bring charges if the evidence does not establish “probable cause” to believe the defendant is guilty. As in the context of police decisions, probable cause is a difficult-to-define term that does not express a specific probability that the defendant is guilty. A typical explanation of probable cause is that it requires “a reasonable ground for belief in guilt.” Later in this book, we will consider some cases in which courts evaluate whether sufficient evidence exists to establish probable cause for a specific charge. But to emphasize: once the probable cause threshold is crossed, whether to bring charges at all, and which charges to bring, is a matter of prosecutorial discretion.

The prosecutor’s charging decision is usually recorded in a charging document, which could be called an information, a complaint, or an indictment. Depending on the jurisdiction, the prosecutor may be able to initiate charges at his or her sole discretion, or he or she may need to obtain an indictment from a grand jury—a group of jurors who hear the prosecution’s statement of evidence (but usually not any evidence from the defense) and who then determine whether there is sufficient probable cause to proceed with the charges. We saw the text of an indictment in Commonwealth v. Mochan, the very first case we read in Chapter One. In Mochan, the defendant was prosecuted under Pennsylvania common law rather than a specific statute. Today, since common law crimes have been abolished in most jurisdictions, an indictment will generally refer to a specific statute or statutes. For one example, you can find the text of the indictment in United States v. Morissette in Chapter Two. An indictment should allege all the specific elements of the charged offense; otherwise, a court may find it “deficient” and dismiss the charges. But an indictment is not itself evidence; it states the allegations against the defendant but does not prove them.

Charging decisions are often revisited or revised over the course of a criminal case. For example, a prosecutor may file an indictment, then later file a superseding indictment that adds new charges. And plea negotiations with the defense will often involve agreements to drop or reduce charges in exchange for a guilty plea. Overlapping statutes, previously mentioned in Chapter Two, are especially useful to prosecutors in this context. If there are multiple statutes that could plausibly be applied to a defendant’s conduct, the prosecutor may be able to threaten multiple convictions and a more severe penalty, then offer reduced charges and a less severe sentence in exchange for a guilty plea. We will consider this aspect of prosecutorial discretion in more detail later in this chapter.

Check Your Understanding (3-2)

Discretion Not to Prosecute

The previous section identified the basic requirements a prosecutor must fulfill in order to bring a charge. But what if a prosecutor decides not to bring any criminal charges? Do prosecutors have a duty to bring charges if they know of facts that indicate the violation of a criminal law?



Nelson A. ROCKEFELLER et al., Defendants-Appellees

U.S. Court of Appeals, Second Circuit
477 F.2d 375

Decided April 18, 1973

MANSFIELD, Circuit Judge: 

…Plaintiffs … [include] certain present and former inmates of New York State’s Attica Correctional Facility (“Attica”) [and] the mother of an inmate who was killed…. The complaint alleges that before, during, and after the prisoner revolt at and subsequent recapture of Attica in September 1971, which resulted in the killing of 32 inmates and the wounding of many others, the defendants, including the Governor of New York [and various other state] officials, either committed, conspired to commit, or aided and abetted in the commission of various crimes against the complaining inmates and members of the class they seek to represent. It is charged that the inmates were intentionally subjected to cruel and inhuman treatment prior to the inmate riot, that State Police, Troopers, and Correction Officers … intentionally killed some of the inmate victims without provocation during the recovery of Attica, that state officers (several of whom are named and whom the inmates claim they can identify) assaulted and beat prisoners after the prison had been successfully retaken and the prisoners had surrendered, that personal property of the inmates was thereafter stolen or destroyed, and that medical assistance was maliciously denied to over 400 inmates wounded during the recovery of the prison. 

The complaint further alleges that Robert E. Fischer, a Deputy State Attorney General specially appointed by the Governor … to investigate crimes relating to the inmates’ takeover of Attica and the resumption of control by the state authorities, “has not investigated, nor does he intend to investigate, any crimes committed by state officers.” Plaintiffs claim, moreover, that because Fischer was appointed by the Governor he cannot neutrally investigate the responsibility of the Governor and other state officers said to have conspired to commit the crimes alleged. It is also asserted that since Fischer is the sole state official currently authorized under state law to prosecute the offenses allegedly committed by the state officers, no one in the State of New York is investigating or prosecuting them. 

With respect to the sole federal defendant, the United States Attorney for the Western District of New York, the complaint simply alleges that he has not arrested, investigated, or instituted prosecutions against any of the state officers accused of criminal violation of plaintiffs’ federal civil rights…. 

As a remedy for the asserted failure of the defendants to prosecute violations of state and federal criminal laws, plaintiffs request relief in the nature of mandamus (1) against state officials, requiring the State of New York to submit a plan for the independent and impartial investigation and prosecution of the offenses charged against the named and unknown state officers, and insuring the appointment of an impartial state prosecutor and state judge to “prosecute the defendants forthwith,” and (2) against the United States Attorney, requiring him to investigate, arrest and prosecute the same state officers for having committed [federal civil rights] offenses…. 

(1) Claim Against the United States Attorney 

With respect to the defendant United States Attorney, plaintiffs seek mandamus to compel him to investigate and institute prosecutions against state officers, most of whom are not identified, for alleged violations of [federal law]. Federal mandamus is, of course, available only “to compel an officer or employee of the United States . . . to perform a duty owed to the plaintiff.” …[O]rdinarily the courts are “not to direct or influence the exercise of discretion of the officer or agency in the making of the decision.” More particularly, federal courts have traditionally and, to our knowledge, uniformly refrained from overturning, at the instance of a private person, discretionary decisions of federal prosecuting authorities not to prosecute persons regarding whom a complaint of criminal conduct is made.

This judicial reluctance to direct federal prosecutions at the instance of a private party asserting the failure of United States officials to prosecute alleged criminal violations has been applied even in cases such as the present one where, according to the allegations of the complaint, which we must accept as true for purposes of this appeal, serious questions are raised as to the protection of the civil rights and physical security of a definable class of victims of crime and as to the fair administration of the criminal justice system.

The primary ground upon which this traditional judicial aversion to compelling prosecutions has been based is the separation of powers doctrine. “Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions.” 

Although … this broad view [has been criticized as] unsound and incompatible with the normal function of the judiciary in reviewing for abuse or arbitrariness administrative acts that fall within the discretion of executive officers, … the manifold imponderables which enter into the prosecutor’s decision to prosecute or not to prosecute make the choice not readily amenable to judicial supervision. 

In the absence of statutorily defined standards governing reviewability, or regulatory or statutory policies of prosecution, the problems inherent in the task of supervising prosecutorial decisions do not lend themselves to resolution by the judiciary. The reviewing courts would be placed in the undesirable and injudicious posture of becoming “superprosecutors.” In the normal case of review of executive acts of discretion, the administrative record is open, public and reviewable on the basis of what it contains. The decision not to prosecute, on the other hand, may be based upon the insufficiency of the available evidence, in which event the secrecy of the grand jury and of the prosecutor’s file may serve to protect the accused’s reputation from public damage based upon insufficient, improper, or even malicious charges. In camera review would not be meaningful without access by the complaining party to the evidence before the grand jury or U.S. Attorney. Such interference with the normal operations of criminal investigations, in turn, based solely upon allegations of criminal conduct, raises serious questions of potential abuse by persons seeking to have other persons prosecuted. Any person, merely by filing a complaint containing allegations in general terms (permitted by the Federal Rules) of unlawful failure to prosecute, could gain access to the prosecutor’s file and the grand jury’s minutes, notwithstanding the secrecy normally attaching to the latter by law. 

Nor is it clear what the judiciary’s role of supervision should be…. At what point would the prosecutor be entitled to call a halt to further investigation as unlikely to be productive? What evidentiary standard would be used to decide whether prosecution should be compelled? How much judgment would the United States Attorney be allowed? Would he be permitted to limit himself to a strong “test” case rather than pursue weaker cases? … What sort of review should be available in cases like the present one where the conduct complained of allegedly violates state as well as federal laws? With limited personnel and facilities at his disposal, what priority would the prosecutor be required to give to cases in which investigation or prosecution was directed by the court? 

These difficult questions engender serious doubts as to the judiciary’s capacity to review and as to the problem of arbitrariness inherent in any judicial decision to order prosecution. On balance, we believe that substitution of a court’s decision to compel prosecution for the U.S. Attorney’s decision not to prosecute, even upon an abuse of discretion standard of review and even if limited to directing that a prosecution be undertaken in good faith, … would be unwise. 

Plaintiffs urge, however, that Congress withdrew the normal prosecutorial discretion for the kind of conduct alleged here by providing … that the United States Attorneys are “authorized and required . . . to institute prosecutions against all persons violating any of the provisions of 18 U.S.C. §§ 241, 242” (emphasis supplied), and, therefore, that no barrier to a judicial directive to institute prosecutions remains. This contention must be rejected. The mandatory nature of the word “required” … is insufficient to evince a broad Congressional purpose to bar the exercise of executive discretion in the prosecution of federal civil rights crimes. Similar mandatory language is contained in [various other federal statutes]. 

Such language has never been thought to preclude the exercise of prosecutorial discretion. Indeed the same contention made here was specifically rejected in Moses v. Kennedy, 219 F. Supp. 762 (D.D.C. 1963), where seven black residents and one white resident of Mississippi sought mandamus to compel the Attorney General of the United States and the Director of the F.B.I. to investigate, arrest, and prosecute certain individuals, including state and local law enforcement officers, for willfully depriving the plaintiffs of their civil rights. There the Court noted that “considerations of judgment and discretion apply with special strength to the area of civil rights, where the Executive Department must be largely free to exercise its considered judgment on questions of whether to proceed by means of prosecution, injunction, varying forms of persuasion, or other types of action.” 

… It therefore becomes unnecessary to decide whether, if Congress were by explicit direction and guidelines to remove all prosecutorial discretion with respect to certain crimes or in certain circumstances we would properly direct that a prosecution be undertaken. 

(2) Claims Against the State Officials 

With respect to the state defendants, plaintiffs also seek prosecution of named and unknown persons for the violation of state crimes. However, they have pointed to no statutory language even arguably creating any mandatory duty upon the state officials to bring such prosecutions. To the contrary, New York law reposes in its prosecutors a discretion to decide whether or not to prosecute in a given case, which is not subject to review in the state courts…. 

Plaintiffs point to language in our earlier opinion, Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12, 20 (2d Cir. 1971), to the effect that “the State has the duty to investigate and prosecute all persons, including inmates, who may have engaged in criminal conduct before, during and after the uprising.” But the statement does not support their present demands. The existence of such a duty does not define its dimensions or imply that an alleged failure to perform the duty completely or equally, as between inmates and state officials, will support federal judicial supervision of state criminal prosecutions. The serious charge that the state’s investigation is proceeding against inmates but not against state officers, if shown to be accurate, might lead the Governor to supplement or replace those presently in charge of the investigation or the state legislature to act. But the gravity of the allegation does not reduce the inherent judicial incapacity to supervise. 

The only authority supporting the extraordinary relief requested here is the Seventh Circuit’s recent decision in Littleton v. Berbling, 468 F.2d 389 (1972), cert. granted, 411 U.S. 915 (1973). There a class of black citizens of Cairo, Illinois, brought suit for damages and injunctive relief against a state prosecutor, an investigator for him, a magistrate and a state judge, charging that the defendants had “systematically applied the state criminal laws so as to discriminate against plaintiffs and their class on the basis of race, interfering thereby with the free exercise of their constitutional rights.” They alleged a long history indicating a concerted pattern of officially sponsored racial discrimination. In reversing the district court’s dismissal of the complaint, a divided panel concluded that a state judge … may be enjoined from unconstitutionally fixing bails and imposing sentences that discriminated sharply against black persons, and that the State Attorney’s quasi-judicial immunity from suit for damages when performing his prosecutorial function “does not extend to complete freedom from injunction.” Finding other possible remedies either unavailable or ineffective, the Court approved the possibility of some type of injunctive relief, not fully specified, but which might include a requirement of “periodic reports of various types of aggregate data on actions on bail and sentencing and dispositions of complaints.”  

However, the decision in Littleton is clearly distinguishable. There the claim, unlike that here, alleged a systematic and lengthy course of egregious racial discrimination in which black persons were denied equal access to and treatment by the state criminal justice system. Furthermore, the Court’s decision does not appear to have compelled the institution of criminal prosecutions, which is the principal relief sought here. In short, we believe that Littleton should be strictly limited to its peculiar facts, as apparently did the Court itself. To the extent that it may be construed as approving federal judicial review and supervision of the exercise of prosecutorial discretion and as compelling the institution of criminal proceedings, we do not share such an extension of its views. 

The order of the district court [dismissing the complaint] is affirmed. 

Notes and questions on Inmates of Attica

  1. The Second Circuit opinion refers to “the prisoner revolt … and subsequent recapture” of the Attica prison, but doesn’t otherwise provide many details of the events that gave rise to this case. The Attica revolt, or uprising, is the subject of historian Heather Ann Thompson’s Blood in the Water (2016) (also a Pulitzer-Prize-winning book, like Douglas Blackmon’s Slavery by Another Name, which was mentioned above in the discussion of vagrancy). Here’s the publisher’s blurb, reprinted on the Pulitzer website:

    On September 9, 1971, nearly 1,300 prisoners took over the Attica Correctional Facility in upstate New York to protest years of mistreatment. Holding guards and civilian employees hostage, the prisoners negotiated with officials for improved conditions during the four long days and nights that followed.

    On September 13, the state abruptly sent hundreds of heavily armed troopers and correction officers to retake the prison by force. Their gunfire killed thirty-nine men—hostages as well as prisoners—and severely wounded more than one hundred others. In the ensuing hours, weeks, and months, troopers and officers brutally retaliated against the prisoners. And, ultimately, New York State authorities prosecuted only the prisoners, never once bringing charges against the officials involved in the retaking and its aftermath and neglecting to provide support to the survivors and the families of the men who had been killed.

    Thompson’s book argues that there existed considerable evidence that prison officials committed murder and other crimes after regaining control of the prison.

  2. Notice that the prisoners were the plaintiffs in this case, not the defendants. Unlike most of the appellate opinions included in this book, Inmates of Attica was not an appeal from a criminal conviction. Instead, persons who were incarcerated at the Attica prison sued to try to force federal and state prosecutors to bring criminal charges against various prison employees and state officials. The federal appeals court declined to order prosecutors to bring charges, emphasizing the separation of powers. Although prosecutors are “officers of the court,” as the Second Circuit recognizes, they are also executive branch officials. In this case and in many other contexts, courts decline to review prosecutorial decisions on the grounds that it would be improper for the judiciary to interfere in executive decision-making. Of course, American courts do review the decisions of other branches quite frequently: for example, they review legislation to determine if it complies with constitutional requirements, as you saw in City of Chicago v. Morales in this chapter, and in Lambert in the previous chapter. Is there something distinctive about prosecutorial decisions that makes them less suitable for judicial review than other government decisions?
  3. As the prisoner-plaintiffs in Attica emphasized, one of the applicable federal criminal statutes included seemingly mandatory language: federal prosecutors were “authorized and required to institute prosecutions” against violators. The Second Circuit acknowledged the language, but found it “insufficient to evince a broad Congressional purpose to bar the exercise of executive discretion.” Recall a similar dynamic in Morales, above, where the plurality found it implausible that the word “shall” in the Chicago ordinance removed police discretion not to invoke the statute. In Castle Rock v. Gonzales, 545 U.S. 748 (2005), the U.S. Supreme Court determined that a seemingly mandatory domestic violence restraining order, which included directions that officers should “use every reasonable means to enforce” it, did not overcome the usual rule of police discretion. Thus, for both police and prosecutors, the general rule is that the decision to enforce is discretionary; police may decline to arrest and prosecutors may decline to charge.
  4. This chapter focuses on enforcement decisions; the previous chapter examined criminalization decisions. Notice that the two types of decisions can overlap in some circumstances. If a prosecutor choses not to enforce a statute against one specific individual, we might still think of the conduct defined in that statute as criminalized conduct. But if a prosecutor announces that he or she will never enforce a particular criminal statute, the conduct in that statute has become effectively decriminalized. “Categorical nonenforcement” has captured attention, and generated controversy, in recent years. President Obama’s immigration policy included some categorical nonenforcement decisions to protect certain groups such as “Dreamers,” or persons who arrived in the United States as children without legal authorization. More recently, at the state and local level, some prosecutors have announced that they will not enforce certain offenses, such as possession of small amounts of marijuana for recreational use, or gun possession laws that the prosecutor believes to violate the Second Amendment. Critics of these nonenforcement decisions argue that they violate the obligation of the executive branch to “Take Care that the Laws be faithfully executed” (U.S. Const., Art. II). For a discussion of the recent controversies and an argument in favor of nonenforcement policies in some instances, see Kerrel Murray, Populist Prosecutorial Nullification, 96 N.Y.U. L. Rev. 173 (2021). For an argument that nonenforcement policies (but not decisions not to enforce in an individual case) should be subject to judicial review, see Zachary Price, Law Enforcement as Political Question, 91 Notre Dame L. Rev. 1571 (2016).
  5. Executive discretion not to prosecute has drawn controversy in recent years, but you should not assume that prosecutors always exercise their discretion in the direction of more leniency. The Trump administration ended some of President Obama’s nonenforcement policies and sought increased prosecutions of immigration offenses. It is crucial to see that changes in executive policy can lead to major changes in what is prosecuted and punished – without any legislative change at all. Again, criminalization is a decision to be made by the legislature in the first instance, but executive choices can certainly influence what kinds of conduct are actually treated as criminal.

Discretion Among Offenses

You have seen so far that prosecutors can initiate charges so long as they have probable cause to believe an offense has occurred. And you have seen that prosecutors also have discretion not to charge an offense even if they have probable cause – or indeed, a much greater level of certainty – that the offense has taken place. In this section, we consider a third aspect of prosecutorial discretion: the discretion to choose which statute to use to charge a given defendant. State v. Cissell, below, considers two Wisconsin statutes that criminalize the same conduct, but impose different penalties. The first statute defines a felony, or a crime with a possible punishment of more than one year in prison. The second statute establishes a misdemeanor offense, or an offense with a maximum punishment of one year or less.

Wisconsin Statutes § 52.05 Abandonment; uniform act. (1) Any person who deserts or wilfully neglects or refuses to provide for the support and maintenance of his or her spouse or marital or nonmarital child under 18 years in destitute or necessitous circumstances shall be fined not more than $500 or imprisoned not more than 2 years or both. It is a defense to criminal liability that the person has just cause to desert, wilfully neglect or refuse to provide support and maintenance…

§ 52.055 Failure to support. (1) Any parent who intentionally neglects or refuses to provide for the necessary and adequate support of his or her marital or nonmarital child under 18 years, or any person who, without just cause, intentionally neglects or refuses to provide for the necessary and adequate maintenance of his or her spouse, shall be guilty of a misdemeanor and may be fined not more than $100 or imprisoned not more than 3 months in the county jail or both…

STATE of Wisconsin, Plaintiff-Appellant-Petitioner


Ronnie D. CISSELL, Defendant-Respondent

Supreme Court of Wisconsin
127 Wis.2d 205

Opinion Filed Dec. 23, 1985


The issues of the case are:

(1) Whether the elements of the crime of felony abandonment are identical to the elements of the crime of misdeameanor failure to support.


(2) If the elements of felony abandonment are identical to the elements of misdemeanor failure to support, does the state violate a defendant’s right to equal protection or due process by charging him with the felony instead of the misdemeanor….

Although we conclude that the elements of the two crimes are identical, we hold that there is no constitutional infirmity in the felony abandonment statute.

On March 2, 1979, a court liaison worker for the Milwaukee County Department of Social Services signed a criminal complaint charging the defendant, Ronnie D. Cissell, with intentionally and willfully neglecting to provide for the support and maintenance of his minor child, leaving her in destitute and necessitous circumstances, contrary to sec. 52.05(1).

The complaint alleged that the defendant had not paid any money for his child’s support from 1973 through 1979, and that he had been ordered to make such payments in the amount of $12,459.33.

[After several pretrial motions], [t]he Milwaukee circuit court, Judge Janine Geske, held that the defendant’s constitutional rights to due process and equal protection of the law were violated by charging him with the felony and ordered that the charge against the defendant be reduced to the misdemeanor of nonsupport. The court based its holding on the conclusion that the elements of the two crimes are identical. The court of appeals … affirmed the circuit court’s decision solely on equal protection grounds.

The first issue we consider is whether the felony abandonment statute has elements that are identical to the misdemeanor nonsupport statute. The circuit court construed the element of “willful” nonsupport under the felony statute to be equivalent to “intentional” nonsupport under the misdemeanor statute. The court also construed “destitute or necessitous circumstances” in the felony to mean any breach of the duty of support. Based on this construction, the need for support under the felony statute does not have to be greater than the need that satisfies the misdemeanor statute.

As a general proposition, the word willful cannot be defined without reference to its use in a specific statute. [But given the interpretations of the terms willful and intentional in prior cases involving other statutes,] [w]e conclude from our analysis that willful has the same meaning in sec. 52.05, as intentionally does in sec. 52.055.

We must next consider whether the phrase “destitute or necessitous circumstances” [in the felony statute] requires a different element of proof than failure to satisfy the duty of support [in the misdemeanor statute]. ….None of our decisions considering the felony abandonment statute has required the state to prove a greater level of deprivation than under the misdemeanor nonsupport statute. We see no difference in the degree of deprivation of the dependents to be proven under the felony or misdemeanor statutes even though the wording is different. Our decisions make it clear that the dependents need not actually be in need of the goods and necessities of life under either statute as long as the defendant is able to provide for them. It is irrelevant if others have provided the support needed for the dependents because the defendant cannot rely on the efforts of others as a valid defense.

Because we construe the willful and destitute or necessitous circumstance requirements of sec. 52.05, to be the same as the elements of sec. 52.055, the two statutes have substantively identical elements.

The defendant contends that statutes with identical substantive elements but different penalty schemes violate due process and equal protection….

We are persuaded by the reasoning of United States v. Batchelder, 442 U.S. 114 (1979), that identical element crimes with different penalties do not violate due process or equal protection. In Batchelder, the United States Supreme Court held that overlapping criminal statutes with different penalty schemes do not violate constitutional principles unless the prosecutor selectively bases the charging decision upon an unjustifiable standard such as race, religion, or other arbitrary classification. This court concludes that the Batchelder reasoning concerning overlapping statutes is equally applicable to identical element crimes.

At issue in Batchelder were two overlapping provisions of the Omnibus Crime Control and Safe Streets Act of 1968. Overlapping statutes proscribe a variety of acts, not all of which are the same, but where some of the proscribed acts are identical. By contrast, identical statutes proscribe the same conduct; they completely overlap. The statutory provisions under consideration in Batchelder both prohibited convicted felons from receiving and possessing firearms shipped in interstate commerce. The statutes were not identical, however, because the full ranges of prohibited conduct were not identical. The maximum penalty exposure under the two statutes also differed, even for the identical prohibited conduct. The Supreme Court, therefore, had to determine whether a defendant convicted of the offense carrying the greater penalty may be sentenced only under the more lenient provision when his conduct violates both statutes.

The Supreme Court analyzed the problem of overlapping statutes with different penalties as an issue of prosecutorial discretion. The Court stated that: “This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants.” Under this approach, the fact that the defendant’s conduct may be chargeable under either of two statutes does not make prosecution under one or the other statute improper per se; the focus instead is on whether the prosecutor unjustifiably discriminated against any class of defendants.

In upholding the constitutionality of overlapping statutes with different penalties, the Supreme Court rejected three specific arguments against the validity of such statutes. The Court considered whether overlapping statutes might: (1) be void for vagueness; (2) implicate due process and equal protection interests in avoiding excessive prosecutorial discretion and in obtaining equal justice; and (3) constitute an impermissible delegation of legislative authority.

The Supreme Court decided that overlapping statutes are not vague merely because they impose different penalties…. “Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments.” …

The Supreme Court also rejected the argument that overlapping criminal statutes create unfettered prosecutorial discretion. “More importantly, there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements… The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause….”

Finally, the Batchelder decision dismissed the argument that overlapping statutes impermissibly delegate to prosecutors the legislative responsibility to fix criminal penalties. The Supreme Court noted that the legislature fixed the penalty under each statute and, therefore, the prosecutor’s control over the penalty exposure was not greater than in other charging situations where conduct could be prosecuted under either of two statutes with different penalties….

The fact that the statutes under consideration in Batchelder were [overlapping rather than exactly identical] was not decisive. Instead, the fact that the statutes were identical at the point of overlap and as applied to the facts of that case was decisive…. Overlapping statutes thus present the same issues as identical statutes because the point of overlap essentially creates an identical statute situation….

Our conclusion that Batchelder controls in the identical statute situation is consistent with the recent decisions of other jurisdictions….

The statutes involved [here] do not classify which persons should be charged under the felony statute and which under the misdemeanor statute. Differences in treatment between individuals, therefore, are determined as a matter of prosecutorial discretion. As Batchelder recognizes, such discretion is not unconstitutional unless the prosecutor discriminates on the basis of unjustifiable criteria. Here, the defendant makes no claim of impermissible discrimination and we can readily see legitimate bases for exercising prosecutorial discretion. For example, prosecutors reasonably may make their charging decision on the basis of the length of continuous nonsupport and the amount of money owed.

… Finally, although Batchelder technically is decisive on the identical crimes issue only under the federal constitution, we are persuaded that the same reasoning should control under the Wisconsin constitution. We previously have held that the due process and equal protection clauses of our state constitution and the United States Constitution are essentially the same.

… The decision of the court of appeals is reversed and the cause is remanded to the trial court for further proceedings.

SHIRLEY S. ABRAHAMSON, Justice dissenting.

 …The majority opinion permits the legislature to adopt two or more criminal statutes identical in every respect except for the penalty provision without establishing criteria to guide the prosecutor in deciding under which statute an accused should be prosecuted. Thus the legislature could, for example, adopt the following three statutes making burglary a crime.

Sec. 943.10. Burglary. Whoever intentionally enters a dwelling without the consent of the person in lawful possession and with the intent to steal shall be fined no more than $1,000 or imprisoned not more than 3 months in the county jail or both.

Sec. 943.101. Burglary. Whoever intentionally enters a dwelling without the consent of the person in lawful possession and with the intent to steal shall be fined no more than $3,000 or imprisoned not more than 2 years or both.

Sec. 943.102. Burglary. Whoever intentionally enters a dwelling without the consent of the person in lawful possession and with the intent to steal shall be fined no more than $10,000 or imprisoned not more than 10 years or both.”

These statutes define the same conduct, under the identical circumstances, as a felony when committed by one person and as a misdemeanor when committed by another. The legislature gives the prosecutor no guidance in selecting the statute under which to prosecute.

It is axiomatic that the state prosecutes people for crimes under statutes enacted by the legislature. “The legislature determines what constitutes a crime in Wisconsin and establishes maximum penalties for each class of crime.”

By establishing more than one maximum penalty for the identical crime the legislature has effectively failed to fix a penalty for the crime of burglary. The legislature has abdicated its responsibility to set a penalty by allowing the prosecutor to determine the maximum penalty for the crime through selecting the statute under which to charge.

… [T]here is a distinction between identical and overlapping statutes that renders Batchelder unpersuasive. In enacting overlapping statutes the legislature defines two or more different crimes and establishes a range of punishments for each. The legislature performs its constitutional task: it sets different penalties for legally distinguishable offenses, even though in some circumstances the same conduct may be punishable under each statute. As a practical matter, the legislature may not be able to define crimes without including conduct that may also be proscribed by another statute. Thus, empowering a prosecutor to choose among overlapping statutes may be necessary and unavoidable.

By contrast, in enacting multiple criminal statutes identical except for the penalty, the legislature defines one crime, establishes several different ranges of punishments for that crime, and, without setting forth guidance, empowers the prosecutor to determine which of the ranges should be imposed in a particular case. The power to fix a range of punishments for a defined crime is the essence of the legislative function. In enacting identical criminal statutes except for the penalty, the legislature has delegated its power to the executive branch without establishing standards for the exercise of the power. This is indeed “delegation running riot.”

… The legislature can, of course, adopt a single statute setting forth the same range of punishments for burglary as the three burglary statutes I described above. Empowering the prosecutor to prosecute under one burglary statute which has a range of punishments is different from empowering the prosecutor to choose among three criminal statutes identical except for penalty. In the former situation, the prosecutor does not establish the penalty; the circuit court imposes a sentence within the legislatively established range according to criteria established by the legislature and this court. The circuit court must set forth its reasons for imposing the sentence, and the judgment is subject to appellate review. Thus the circuit court’s discretion in selecting punishment from a statutory range of penalties established by the legislature is regulated and guided. In the latter situation the circuit court imposes a sentence within the range established by the prosecutor who functions without regulation or guidance by the legislature or the court….

Check Your Understanding (3-3)

Notes and questions about State v. Cissell

  1. Overlapping statutes are a common phenomenon. Most jurisdictions take same approach as Cissell and follow the Supreme Court’s approach in United States v. Batchelder, concluding that overlapping statutes are permissible even under state constitutions. To be clear, Batchelder applies the due process and equal protection clauses of the federal constitution, and the Supreme Court’s interpretation of the federal constitution is binding on state courts. But defendants can also raise claims under the relevant state constitution, and state courts are free to interpret their own constitutions, including any state due process or equal protection clause, differently from the federal constitution. The Cissell court chose to follow the federal approach. But for an example of a state court interpreting its own state constitution to provide more protection than the federal constitution, see People v. Lee, 476 P.3d 351 (Co. 2020), discussed in Chapter Six.
  2. Although the Cissell court (like the U.S. Supreme Court, and most American jurisdictions) found overlapping statutes to be permissible, it is important to understand why critics object to such statutes. The arguments against overlapping statutes can help clarify the scope of prosecutorial power. Consider carefully Judge Abrahamson’s dissent in Cissell. Judge Abrahamson argues that the legislature should not be able to enact three burglary statutes with identical elements but different penalties, and yet she acknowledges that a legislature could certainly enact one burglary statute with a range of possible penalties as broad (or broader) as the different penalties in her three imagined statutes. Why does Judge Abrahamson see one statute, with a wide range of possible penalties, as meaningfully different from three statutes, each with a more precise penalty range?
  3. Notice that the Cissell opinion is concerned with the choice to charge under one statute rather another, not with actual convictions under multiple statutes for the same conduct. Actual convictions under multiple statutes could potentially violate the Fifth Amendment of the federal constitution, which includes the provision, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” The Double Jeopardy Clause, as this provision is known, is a potential constitutional constraint on prosecutorial choices that is separate from the equal protection and due process arguments raised in Cissell. Whether the Double Jeopardy Clause bars multiple punishments depends on whether the punishments are for “the same offense,” and the analysis of that question can be complex. We will not cover double jeopardy doctrine extensively in this course, but we will look at it in a little more detail in Chapter Five.
  4. The phenomenon of overlapping (or even identical) statutes is partly a product of the breadth of American criminal codes. So much conduct is criminalized that it is nearly inevitable that some statutes will overlap with another. As one notable illustration of the breadth of American criminal codes, consider this anecdote:

    At the federal prosecutor’s office in the Southern District of New York, the staff, over beer and pretzels, used to play a darkly humorous game. Junior and senior prosecutors would sit around, and someone would name a random celebrity—say, Mother Theresa or John Lennon.

    It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you’d see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like “false statements” (a felony, up to five years), “obstructing the mails” (five years), or “false pretenses on the high seas” (also five years). The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The, result, however, was inevitable: “prison time.”

    Tim Wu, Introduction: American Lawbreaking, Slate (Oct. 14, 2007). “False statements” is not really an obscure offense; it’s fairly frequently prosecuted, and it was the offense that sent Martha Stewart to federal prison. But otherwise, Professor Wu’s story captures the sense in which American criminal codes function as menus for prosecutors: for any individual who attracts a prosecutor’s attention, there is likely to be some offense that might be plausibly charged against that person. And given overlapping statutes, there may well be more than one possible charge. The potential applicability of multiple statutes gives a prosecutor leverage in plea negotiations, as discussed more in the next chapter.

  5. Cissell is included in this chapter primarily to help you understand the range of decisions open to prosecutors. Most state courts take the same approach, seeing no constitutional problem when prosecutors have broad leeway to choose among statutes that punish the same conduct, but impose different penalties. But this case, like most in the book, can also help you build upon and further develop your understanding of several different aspects of criminal law. Cissell also involved issues of statutory interpretation, and the defendant raised a vagueness challenge to the felony statute. The defendant argued that “willful” meant intentional and “neglect” referred to negligence, and thus the phrase “willfully neglects” in the felony statute was nonsensical because intentional conduct cannot also be negligent conduct. In a passage of the opinion not included above, the Wisconsin court rejected the defendant’s interpretation of the word neglect and thus rejected the vagueness challenge. Although the vagueness challenge failed here, it is important to see that overlapping or identical statutes do create many of the same problems that void-for-vagueness doctrine seeks to remedy. Here is one scholar’s recent summary, which echoes much of what you’ve read so far in this chapter:

    There are two important features of the modern criminal justice system that create vagueness concerns in the enforcement of non-vague statutes. First, criminal codes have expanded dramatically in modern times. Not only are new statutes enacted to prohibit increasing amounts of behavior, but broadly worded statutes also allow the executive to find some criminal provision into which it can shoehorn any undesirable behavior. And for behavior that should obviously be prohibited, Congress and most state legislatures have enacted a wide array of overlapping criminal statutes with different penalty provisions. These overlapping statutes allow prosecutors to choose from a large “menu” of criminal charges–a defendant may be charged with a crime carrying a harsh sentence or a more lenient one, as the prosecutor sees fit…. Second, courts have largely exempted law enforcement decisionmaking from judicial review. Aside from asking whether a police officer had probable cause to arrest, or whether a prosecutor had probable cause to bring charges, courts will not review arrest, charging, or plea bargaining decisions…. The Supreme Court says that these decisions are committed to the discretion of the executive….

    Carissa Byrne Hessick, Vagueness Principles, 48 Ariz. St. L.J. 1137 (2016).

Equal Protection and Other Possible Limitations



Christopher Lee ARMSTRONG et al.

Supreme Court of the United States
517 U.S. 456

Decided May 13, 1996

 Chief Justice REHNQUIST delivered the opinion of the Court.

In this case, we consider the showing necessary for a defendant to be entitled to discovery on a claim that the prosecuting attorney singled him out for prosecution on the basis of his race. We conclude that respondents failed to satisfy the threshold showing: They failed to show that the Government declined to prosecute similarly situated suspects of other races.

In April 1992, respondents were indicted in the United States District Court for the Central District of California on charges of conspiring to possess with intent to distribute more than 50 grams of cocaine base (crack) and conspiring to distribute the same, in violation of 21 U.S.C. §§ 841 and 846, and federal firearms offenses. For three months prior to the indictment, agents of the Federal Bureau of Alcohol, Tobacco, and Firearms and the Narcotics Division of the Inglewood, California, Police Department had infiltrated a suspected crack distribution ring by using three confidential informants. On seven separate occasions during this period, the informants had bought a total of 124.3 grams of crack from respondents and witnessed respondents carrying firearms during the sales….

In response to the indictment, respondents filed a motion for discovery or for dismissal of the indictment, alleging that they were selected for federal prosecution because they are black. In support of their motion, they offered only an affidavit by a “Paralegal Specialist,” employed by the Office of the Federal Public Defender representing one of the respondents. The only allegation in the affidavit was that, in every one of the 24 § 841 or § 846 cases closed by the office during 1991, the defendant was black. Accompanying the affidavit was a “study” listing the 24 defendants, their race, whether they were prosecuted for dealing cocaine as well as crack, and the status of each case.  [3]

The Government opposed the discovery motion, arguing, among other things, that there was no evidence or allegation “that the Government has acted unfairly or has prosecuted non-black defendants or failed to prosecute them.” The District Court granted the motion. It ordered the Government (1) to provide a list of all cases from the last three years in which the Government charged both cocaine and firearms offenses, (2) to identify the race of the defendants in those cases, (3) to identify what levels of law enforcement were involved in the investigations of those cases, and (4) to explain its criteria for deciding to prosecute those defendants for federal cocaine offenses.

The Government moved for reconsideration of the District Court’s discovery order. With this motion it submitted affidavits and other evidence to explain why it had chosen to prosecute respondents and why respondents’ study did not support the inference that the Government was singling out blacks for cocaine prosecution. The federal and local agents participating in the case alleged in affidavits that race played no role in their investigation. An Assistant United States Attorney explained in an affidavit that the decision to prosecute met the general criteria for prosecution, [including the quantity of drugs involved, multiple defendants indicating a distribution ring, firearms violations, strong overall evidence including audio and videotapes, and] “several of the defendants had criminal histories including narcotics and firearms violations.”

The Government also submitted sections of a published 1989 Drug Enforcement Administration report which concluded that “[l]arge-scale, interstate trafficking networks controlled by Jamaicans, Haitians and Black street gangs dominate the manufacture and distribution of crack.”

In response, one of respondents’ attorneys submitted an affidavit alleging that an intake coordinator at a drug treatment center had told her that there are “an equal number of caucasian users and dealers to minority users and dealers.” Respondents also submitted an affidavit from a criminal defense attorney alleging that in his experience many nonblacks are prosecuted in state court for crack offenses, and a newspaper article reporting that federal “crack criminals … are being punished far more severely than if they had been caught with powder cocaine, and almost every single one of them is black,” Newton, Harsher Crack Sentences Criticized as Racial Inequity, Los Angeles Times, Nov. 23, 1992, p. 1.

The District Court denied the motion for reconsideration. When the Government indicated it would not comply with the court’s discovery order, the court dismissed the case.

A divided three-judge panel of the Court of Appeals for the Ninth Circuit reversed, [but subsequently] the en banc panel affirmed the District Court’s order of dismissal, holding that “a defendant is not required to demonstrate that the government has failed to prosecute others who are similarly situated.” We granted certiorari to determine the appropriate standard for discovery for a selective-prosecution claim.

… A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution. Our cases delineating the necessary elements to prove a claim of selective prosecution have taken great pains to explain that the standard is a demanding one.

A selective-prosecution claim asks a court to exercise judicial power over a “special province” of the Executive. The Attorney General and United States Attorneys retain “broad discretion” to enforce the Nation’s criminal laws. They have this latitude because they are designated by statute as the President’s delegates to help him discharge his constitutional responsibility to “take Care that the Laws be faithfully executed.” U.S. Const., Art. II, § 3; see 28 U.S.C. §§ 516, 547. As a result, “[t]he presumption of regularity supports” their prosecutorial decisions and, “in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.” In the ordinary case, “so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357 (1978).

Of course, a prosecutor’s discretion is “subject to constitutional constraints.” One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment, is that the decision whether to prosecute may not be based on “an unjustifiable standard such as race, religion, or other arbitrary classification.” A defendant may demonstrate that the administration of a criminal law is “directed so exclusively against a particular class of persons … with a mind so unequal and oppressive” that the system of prosecution amounts to “a practical denial” of equal protection of the law. Yick Wo v. Hopkins, 118 U.S. 356 (1886).

In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present “clear evidence to the contrary.” …[C]ourts are “properly hesitant to examine the decision whether to prosecute.” Judicial deference to the decisions of these executive officers rests in part on an assessment of 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.” It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function. “Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy.”

The requirements for a selective-prosecution claim draw on “ordinary equal protection standards.” The claimant must demonstrate that the federal prosecutorial policy “had a discriminatory effect and that it was motivated by a discriminatory purpose.” To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted. This requirement has been established in our case law since Ah Sin v. Wittman, 198 U.S. 500 (1905). Ah Sin, a subject of China, petitioned a California state court for a writ of habeas corpus, seeking discharge from imprisonment under a San Francisco County ordinance prohibiting persons from setting up gambling tables in rooms barricaded to stop police from entering. He alleged in his habeas petition “that the ordinance is enforced ‘solely and exclusively against persons of the Chinese race and not otherwise.’ ” We rejected his contention that this averment made out a claim under the Equal Protection Clause, because it did not allege “that the conditions and practices to which the ordinance was directed did not exist exclusively among the Chinese, or that there were other offenders against the ordinance than the Chinese as to whom it was not enforced.”

The similarly situated requirement does not make a selective-prosecution claim impossible to prove. Twenty years before Ah Sin, we invalidated an ordinance, also adopted by San Francisco, that prohibited the operation of laundries in wooden buildings. Yick Wo. The plaintiff in error successfully demonstrated that the ordinance was applied against Chinese nationals but not against other laundry-shop operators. The authorities had denied the applications of 200 Chinese subjects for permits to operate shops in wooden buildings, but granted the applications of 80 individuals who were not Chinese subjects to operate laundries in wooden buildings “under similar conditions.” We explained in Ah Sin why the similarly situated requirement is necessary:

“… There should be certainty to every intent. Plaintiff in error seeks to set aside a criminal law of the State, not on the ground that it is unconstitutional on its face, not that it is discriminatory in tendency and ultimate actual operation as the ordinance was which was passed on in the Yick Wo case, but that it was made so by the manner of its administration. This is a matter of proof, and no fact should be omitted to make it out completely, when the power of a Federal court is invoked to interfere with the course of criminal justice of a State.” 198 U.S. at 508 (emphasis added).

… Having reviewed the requirements to prove a selective-prosecution claim, we turn to the showing necessary to obtain discovery in support of such a claim. If discovery is ordered, the Government must assemble from its own files documents which might corroborate or refute the defendant’s claim. Discovery thus imposes many of the costs present when the Government must respond to a prima facie case of selective prosecution. It will divert prosecutors’ resources and may disclose the Government’s prosecutorial strategy. The justifications for a rigorous standard for the elements of a selective-prosecution claim thus require a correspondingly rigorous standard for discovery in aid of such a claim.

The parties, and the Courts of Appeals which have considered the requisite showing to establish entitlement to discovery, describe this showing with a variety of phrases, like “colorable basis,” “substantial threshold showing,” “substantial and concrete basis,” or “reasonable likelihood.” However, the many labels for this showing conceal the degree of consensus about the evidence necessary to meet it. The Courts of Appeals “require some evidence tending to show the existence of the essential elements of the defense,” discriminatory effect and discriminatory intent.

In this case … [the] Court of Appeals held that a defendant may establish a colorable basis for discriminatory effect without evidence that the Government has failed to prosecute others who are similarly situated to the defendant. We think it was mistaken in this view. The vast majority of the Courts of Appeals require the defendant to produce some evidence that similarly situated defendants of other races could have been prosecuted, but were not, and this requirement is consistent with our equal protection case law.

The Court of Appeals reached its decision in part because it started “with the presumption that people of all races commit all types of crimes—not with the premise that any type of crime is the exclusive province of any particular racial or ethnic group.” It cited no authority for this proposition, which seems contradicted by the most recent statistics of the United States Sentencing Commission. Those statistics show: More than 90% of the persons sentenced in 1994 for crack cocaine trafficking were black, United States Sentencing Comm’n, 1994 Annual Report 107 (Table 45); 93.4% of convicted LSD dealers were white, ibid.; and 91% of those convicted for pornography or prostitution were white, id., at 41 (Table 13). Presumptions at war with presumably reliable statistics have no proper place in the analysis of this issue.

… In the present case, if the claim of selective prosecution were well founded, it should not have been an insuperable task to prove that persons of other races were being treated differently than respondents. For instance, respondents could have investigated whether similarly situated persons of other races were prosecuted by the State of California and were known to federal law enforcement officers, but were not prosecuted in federal court. We think the required threshold—a credible showing of different treatment of similarly situated persons—adequately balances the Government’s interest in vigorous prosecution and the defendant’s interest in avoiding selective prosecution.

In the case before us, respondents’ “study” did not constitute “some evidence tending to show the existence of the essential elements of” a selective-prosecution claim. The study failed to identify individuals who were not black and could have been prosecuted for the offenses for which respondents were charged, but were not so prosecuted. This omission was not remedied by respondents’ evidence in opposition to the Government’s motion for reconsideration. The newspaper article, which discussed the discriminatory effect of federal drug sentencing laws, was not relevant to an allegation of discrimination in decisions to prosecute. Respondents’ affidavits, which recounted one attorney’s conversation with a drug treatment center employee and the experience of another attorney defending drug prosecutions in state court, recounted hearsay and reported personal conclusions based on anecdotal evidence. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for proceedings consistent with this opinion.

It is so ordered.

[Opinions by Justices SOUTER and GINSBURG, concurring, omitted.]

[Opinion by Justice BREYER, concurring in part and concurring in the judgment, omitted.]

Justice STEVENS, dissenting.

Federal prosecutors are respected members of a respected profession. Despite an occasional misstep, the excellence of their work abundantly justifies the presumption that “they have properly discharged their official duties.” Nevertheless, the possibility that political or racial animosity may infect a decision to institute criminal proceedings cannot be ignored. For that reason, it has long been settled that the prosecutor’s broad discretion to determine when criminal charges should be filed is not completely unbridled. As the Court notes, however, the scope of judicial review of particular exercises of that discretion is not fully defined.

The United States Attorney for the Central District of California is a member and an officer of the bar of that District Court. As such, she has a duty to the judges of that Court to maintain the standards of the profession in the performance of her official functions. If a District Judge has reason to suspect that she, or a member of her staff, has singled out particular defendants for prosecution on the basis of their race, it is surely appropriate for the judge to determine whether there is a factual basis for such a concern…

The Court correctly concludes that in this case the facts presented to the District Court in support of respondents’ claim that they had been singled out for prosecution because of their race were not sufficient to prove that defense. Moreover, I agree with the Court that their showing was not strong enough to give them a right to discovery…. [H]owever, I am persuaded that the District Judge did not abuse her discretion when she concluded that the factual showing was sufficiently disturbing to require some response from the United States Attorney’s Office. Perhaps the discovery order was broader than necessary, but I cannot agree with the Court’s apparent conclusion that no inquiry was permissible.

The District Judge’s order should be evaluated in light of three circumstances that underscore the need for judicial vigilance over certain types of drug prosecutions. First, the Anti–Drug Abuse Act of 1986 and subsequent legislation established a regime of extremely high penalties for the possession and distribution of so-called “crack” cocaine. Those provisions treat one gram of crack as the equivalent of 100 grams of powder cocaine. The distribution of 50 grams of crack is thus punishable by the same mandatory minimum sentence of 10 years in prison that applies to the distribution of 5,000 grams of powder cocaine. The Sentencing Guidelines extend this ratio to penalty levels above the mandatory minimums: For any given quantity of crack, the guideline range is the same as if the offense had involved 100 times that amount in powder cocaine. These penalties result in sentences for crack offenders that average three to eight times longer than sentences for comparable powder offenders.

Second, the disparity between the treatment of crack cocaine and powder cocaine is matched by the disparity between the severity of the punishment imposed by federal law and that imposed by state law for the same conduct. For a variety of reasons, often including the absence of mandatory minimums, the existence of parole, and lower baseline penalties, terms of imprisonment for drug offenses tend to be substantially lower in state systems than in the federal system. The difference is especially marked in the case of crack offenses. The majority of States draw no distinction between types of cocaine in their penalty schemes; of those that do, none has established as stark a differential as the Federal Government. For example, if respondent Hampton is found guilty, his federal sentence might be as long as a mandatory life term. Had he been tried in state court, his sentence could have been as short as 12 years, less worktime credits of half that amount.

Finally, it is undisputed that the brunt of the elevated federal penalties falls heavily on blacks. While 65% of the persons who have used crack are white, in 1993 they represented only 4% of the federal offenders convicted of trafficking in crack. Eighty-eight percent of such defendants were black. During the first 18 months of full guideline implementation, the sentencing disparity between black and white defendants grew from preguideline levels: Blacks on average received sentences over 40% longer than whites. See Bureau of Justice Statistics, Sentencing in the Federal Courts: Does Race Matter? 6–7 (Dec.1993). Those figures represent a major threat to the integrity of federal sentencing reform, whose main purpose was the elimination of disparity (especially racial) in sentencing. The Sentencing Commission acknowledges that the heightened crack penalties are a “primary cause of the growing disparity between sentences for Black and White federal defendants.”

The extraordinary severity of the imposed penalties and the troubling racial patterns of enforcement give rise to a special concern about the fairness of charging practices for crack offenses. Evidence tending to prove that black defendants charged with distribution of crack in the Central District of California are prosecuted in federal court, whereas members of other races charged with similar offenses are prosecuted in state court, warrants close scrutiny by the federal judges in that district. In my view, the District Judge, who has sat on both the federal and the state benches in Los Angeles, acted well within her discretion to call for the development of facts that would demonstrate what standards, if any, governed the choice of forum where similarly situated offenders are prosecuted.

Respondents submitted a study showing that of all cases involving crack offenses that were closed by the Federal Public Defender’s Office in 1991, 24 out of 24 involved black defendants. To supplement this evidence, they submitted affidavits from two … attorneys…. The first reported a statement from an intake coordinator at a local drug treatment center that, in his experience, an equal number of crack users and dealers were caucasian as belonged to minorities. The second was from David R. Reed, counsel for respondent Armstrong. Reed was both an active court-appointed attorney in the Central District of California and one of the directors of the leading association of criminal defense lawyers who practice before the Los Angeles County courts. Reed stated that he did not recall “ever handling a [crack] cocaine case involving non-black defendants” in federal court, nor had he even heard of one. He further stated that “[t]here are many crack cocaine sales cases prosecuted in state court that do involve racial groups other than blacks.”

The majority discounts the probative value of the affidavits, claiming that they recounted “hearsay” and reported “personal conclusions based on anecdotal evidence.” But the Reed affidavit plainly contained more than mere hearsay; Reed offered information based on his own extensive experience in both federal and state courts. Given the breadth of his background, he was well qualified to compare the practices of federal and state prosecutors. In any event, the Government never objected to the admission of either affidavit on hearsay or any other grounds. It was certainly within the District Court’s discretion to credit the affidavits of two members of the bar of that Court, at least one of whom had presumably acquired a reputation by his frequent appearances there, and both of whose statements were made on pains of perjury.

The criticism that the affidavits were based on “anecdotal evidence” is also unpersuasive. I thought it was agreed that defendants do not need to prepare sophisticated statistical studies in order to receive mere discovery in cases like this one….

Even if respondents failed to carry their burden of showing that there were individuals who were not black but who could have been prosecuted in federal court for the same offenses, it does not follow that the District Court abused its discretion in ordering discovery. There can be no doubt that such individuals exist, and indeed the Government has never denied the same. In those circumstances, I fail to see why the District Court was unable to take judicial notice of this obvious fact and demand information from the Government’s files to support or refute respondents’ evidence. The presumption that some whites are prosecuted in state court is not “contradicted” by the statistics the majority cites, which show only that high percentages of blacks are convicted of certain federal crimes, while high percentages of whites are convicted of other federal crimes. Those figures are entirely consistent with the allegation of selective prosecution. The relevant comparison, rather, would be with the percentages of blacks and whites who commit those crimes. But, as discussed above, in the case of crack far greater numbers of whites are believed guilty of using the substance. The District Court, therefore, was entitled to find the evidence before it significant and to require some explanation from the Government.

In sum, I agree with the Sentencing Commission that “[w]hile the exercise of discretion by prosecutors and investigators has an impact on sentences in almost all cases to some extent, because of the 100–to–1 quantity ratio and federal mandatory minimum penalties, discretionary decisions in cocaine cases often have dramatic effects.” The severity of the penalty heightens both the danger of arbitrary enforcement and the need for careful scrutiny of any colorable claim of discriminatory enforcement. C.f. McCleskey v. Kemp (1987) (Stevens, J., dissenting). In this case, the evidence was sufficiently disturbing to persuade the District Judge to order discovery that might help explain the conspicuous racial pattern of cases before her court. I cannot accept the majority’s conclusion that the District Judge either exceeded her power or abused her discretion when she did so. I therefore respectfully dissent.

Notes and questions on United States v. Armstrong

  1. Most of the analysis in Armstrong focuses on the enforcement decisions of prosecutors, since the defendant argued that prosecutors had selected him for prosecution on the basis of his race. But criminalization decisions can also contribute to racial disparities, as emphasized by Justice Stevens’s dissent. That dissent points out that federal law distinguished between drug offenses involving crack cocaine and those involving powder cocaine, and punished crack offenses more severely. At the time Armstrong was decided, the crack-powder disparity was 100:1, meaning a defendant needed to possess 100 times as much powder cocaine to trigger the same mandatory minimum sentence applicable to possession of crack cocaine. In 2010, Congress amended the law to reduce the disparity to 18:1.
  2. A legal presumption is a kind of default rule: A fact will be presumed true unless there is the requisite degree of evidence to conclude otherwise. You have probably heard about the presumption of innocence, or the principle that a criminal defendant is presumed to be innocent until the prosecution has proven each element of the charged offense to be true “beyond a reasonable doubt.” We will consider the presumption of innocence, and the reasonable doubt standard, in more detail in Chapter Four. For now, notice that Armstrong rests on a different presumption, one that favors prosecutors: “the presumption of regularity.” As the Supreme Court describes this presumption, “in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly charged their official duties.” In the context of this case, a presumption of regularity is a presumption that prosecutors have not engaged in racial discrimination. The question then becomes what evidence is necessary to overcome that presumption. The Court has said that “clear evidence” is necessary, and such evidence was not presented here.
  3. To get still more into the details: the defendant in Armstrong faced two different evidentiary challenges. To show unconstitutional racial discrimination, he would have to show that both a discriminatory effect and a discriminatory intent. This is the basic formula for an Equal Protection claim under the Fourteenth Amendment, and you will study it in much more detail in a constitutional law course. Discriminatory effects can often be established by patterns of racial disparities, but proving discriminatory intent often turns out to be difficult and nearly impossible, because courts usually will not accept statistical evidence of racial disparities as proof of discriminatory intent. We can leave these details of Equal Protection doctrine aside for now, though, because Christopher Armstrong’s challenge faltered at a still earlier stage. Before he could try to prove unconstitutional discrimination, he needed more information from the prosecution: he needed discovery of information about who was prosecuted for cocaine offenses and how federal prosecutors made those decisions. The Supreme Court’s opinion is not about whether Christopher Armstrong has adequately proved discrimination, but whether he should get discovery – in other words, the question is whether he has introduced sufficient evidence to be allowed to get more evidence.
  4. What degree of statistical disparity should be sufficient to grant a defendant’s motion for discovery about prosecutorial charging practices? In a footnote in his dissent, Justice Stevens emphasized that the federal government had not been able to identify a single white defendant in this federal district who had been prosecuted for crack offenses; the government did identify eleven non-Black defendants prosecuted for crack offenses, but these eleven defendants were all members of other minority groups. According to Stevens, “[t]he District Court was authorized to draw adverse inferences from the Government’s inability to produce a single example of a white defendant, especially when the very purpose of its exercise was to allay the court’s concerns about the evidence of racially selective prosecutions. As another court has said: ‘Statistics are not, of course, the whole answer, but nothing is as emphatic as zero….’”
  5. The Supreme Court in Armstrong does not explain how its “clear evidence” standard compares to other standards of proof, such as “preponderance of the evidence” or “beyond a reasonable doubt.” At least one lower federal court has interpreted Armstrong’s “clear evidence” standard as a “clear and convincing” requirement. Clear and convincing evidence is typically understood as requiring more evidence than a “preponderance,” but less than “beyond a reasonable doubt.” Again, we will return to these various legal terms when we consider adjudication decisions in Chapter Four.
  6. Several years before Armstrong reached the Supreme Court, the Court considered an equal protection challenge to Georgia’s death penalty. Warren McCleskey was a Black man who had been sentenced to death after he was convicted of killing a white police officer. McCleskey argued that Georgia’s capital sentencing procedures operated in a racially discriminatory manner such that Black defendants who killed white victims were sentenced to death disproportionately often. McCleskey supported his argument with empirical analysis by Professor David Baldus and other researchers, described by the Supreme Court as “two sophisticated statistical studies that examine[d] over 2000 murder cases that occurred in Georgia during the 1970s.” McCleskey v. Kemp, 481 U.S. 279, 286 (1987). The Court acknowledged that the studies indicated that Black defendants who killed white victims were more likely to receive the death penalty, even after controlling for other potential variables. Id. at 287. But the Court nonetheless rejected the equal protection claim:

    [A] defendant who alleges an equal protection violation has the burden of proving “the existence of purposeful discrimination.” A corollary to this principle is that a criminal defendant must prove that the purposeful discrimination “had a discriminatory effect” on him. Thus, to prevail under the Equal Protection Clause, McCleskey must prove that the decisionmakers in his case acted with discriminatory purpose. He offers no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence. …

    McCleskey’s statistical proffer must be viewed in the context of his challenge. McCleskey challenges decisions at the heart of the State’s criminal justice system. “[O]ne of society’s most basic tasks is that of protecting the lives of its citizens and one of the most basic ways in which it achieves the task is through criminal laws against murder.” Implementation of these laws necessarily requires discretionary judgments. Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused. The unique nature of the decisions at issue in this case also counsels against adopting such an inference from the disparities indicated by the Baldus study. Accordingly, we hold that the Baldus study is clearly insufficient to support an inference that any of the decisionmakers in McCleskey’s case acted with discriminatory purpose.

    McCleskey, 481 U.S. at 292; id. at 297. Warren McCleskey also argued that racial bias in Georgia’s capital sentencing practices violated the Eighth Amendment’s prohibition on cruel and unusual punishment. The Court rejected the Eighth Amendment argument as well. The Court did not use the precise phrase “presumption of regularity,” but it did explain that “we may lawfully presume that McCleskey’s death sentence was not ‘wantonly and freakishly’ imposed, and thus that the sentence is not disproportionate within any recognized meaning under the Eighth Amendment.” Id. at 308. The Court reiterated “the fundamental role of discretion in our criminal justice system,” id. at 311, and concluded:

    At most, the Baldus study indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system…. As this Court has recognized, any mode for determining guilt or punishment “has its weaknesses and the potential for misuse.” Specifically, “there can be ‘no perfect procedure for deciding in which cases governmental authority should be used to impose death.’ ” Despite these imperfections, our consistent rule has been that constitutional guarantees are met when “the mode [for determining guilt or punishment] itself has been surrounded with safeguards to make it as fair as possible.” Where the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious.

    McCleskey, 481 U.S. at 312-313.

  7. Courts sometimes distinguish between a selective prosecution claim, like that raised in Armstrong, and a selective enforcement claim. The difference turns primarily on whose enforcement decision is challenged – a prosecutor or another enforcement official. Here is one court’s recent explanation of the difference:

    Selective prosecution occurs when, from among the pool of people referred by police, a prosecutor pursues similar cases differently based on race. Selective enforcement occurs when police investigate people of one race but not similarly-situated people of a different race. Hence, with selective enforcement, “the constitutional problem … precede[s] the prosecutor’s role.” It does not matter if prosecutors then pursue each case equally because the pool of defendants itself was racially selected. As equal protection claims, both selective prosecution and selective enforcement require proof “that the defendants’ actions had a discriminatory effect and were motivated by a discriminatory purpose.” A plaintiff must show discriminatory purpose “in his case.” And discriminatory purpose “implies more than … awareness of consequences. It implies that the decisionmaker … selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”

    Conley v. United States, 5 F.4th 781, 789 (7th Cir. 2021). Conley involved a controversial federal practice known as “stash house” stings, in which undercover agents approached individuals and proposed robbing a stash house. In the usual situation in which this practice was deployed, there was no actual stash house, but the staged robbery would enable federal agents to collect extensive evidence to prosecute the target for conspiring or attempting federal drug and weapons offenses. Like Warren McCleskey, the defendant in Conley relied on an academic study, this one indicating that the persons targeted in stash house stings were disproportionately Black. The Seventh Circuit determined that a lower standard of proof—preponderance of the evidence—applied to selective enforcement claims, but ultimately found that the defendant could not prove his equal protection claim even under the lower standard of proof.

  8. The Armstrong Court mentions Yick Wo v. Hopkins, 118 U.S. 356 (1886), to demonstrate that selective prosecution claims are not impossible to prove. (Later courts and commentators, including the Conley court, describe Yick Wo as a selective enforcement case rather than a selective prosecution case, since it involved apparently discriminatory decisions by city licensing officials to permit non-Chinese persons, but not Chinese persons, to operate laundries in wooden buildings.) As of 2022, Yick Wo remains the only case in which the Supreme Court has found adequate evidence to support either a selective enforcement or a selective prosecution claim under equal protection doctrine.

End of Chapter Review

Check Your Understanding (3-4)


  1. In fact the city already has several laws that serve this purpose. See, e.g., Ill. Comp. Stat., ch. 720 §§ 5/12–6 (1998) (intimidation); 570/405.2 (streetgang criminal drug conspiracy); 147/1 et seq. (Illinois Streetgang Terrorism Omnibus Prevention Act); 5/25–1 (mob action). Deputy Superintendent Cooper, the only representative of the police department at the Committee on Police and Fire hearing on the ordinance, testified that, of the kinds of behavior people had discussed at the hearing, “90 percent of those instances are actually criminal offenses where people, in fact, can be arrested.” [Fn. 17 in original Supreme Court Opinion.]
  2. Petitioner cites historical precedent against recognizing what it describes as the “fundamental right to loiter.” While antiloitering ordinances have long existed in this country, their pedigree does not ensure their constitutionality. … [Vagrancy] laws went virtually unchallenged in this country until attorneys became widely available to the indigent following our decision in Gideon v. Wainwright, 372 U.S. 335 (1963). In addition, vagrancy laws were used after the Civil War to keep former slaves in a state of quasi slavery. In 1865, for example, Alabama broadened its vagrancy statute to include “any runaway, stubborn servant or child” and “a laborer or servant who loiters away his time, or refuses to comply with any contract for a term of service without just cause.” T. Wilson, Black Codes of the South 76 (1965). The Reconstruction-era vagrancy laws had especially harsh consequences on African–American women and children. L. Kerber, No Constitutional Right to be Ladies: Women and the Obligations of Citizenship 50–69 (1998). Neither this history nor … Justice THOMAS’ dissent persuades us that the right to engage in loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the Due Process Clause. [Fn. 20 in original Supreme Court opinion.]
  3. Other defendants had introduced this study in support of similar discovery motions in at least two other Central District cocaine prosecutions. Both motions were denied. One District Judge explained from the bench that the 23–person sample before him was “statistically insignificant,” and that the evidence did not indicate “whether there is a bias in the distribution of crime that says black people use crack cocaine, hispanic people use powdered cocaine, caucasian people use whatever it is they use.” [Fn. 1 in original opinion.]