105.Selective Prosecution

Last Updated: 12/01/23

Key Concepts

  • Selective prosecution generally means prosecuting only one defendant when others who are similarly situated are not prosecuted, and doing so for an impermissible reason.
  • The defendant bears the burden of proving an allegation of selective prosecution, which requires a prima facie showing of being singled out for prosecution, followed by a “clear preponderance” of evidence showing an impermissible purpose.

Prosecutor Has Wide Discretion in Bringing Charges

The most significant decision a prosecutor will make in some cases is the initial charging decision itself ― whether or not to charge a defendant, and if so, what criminal charges to pursue.  “[S]o 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, 364 (1978).

In making this decision, a prosecutor is permitted to exercise his or her discretion “in weighing such factors as the likelihood of successful prosecution, the social value of obtaining a conviction as against the time and expense to the state, and the prosecutor's own sense of justice in the particular case.” State v. Rogers, 68 N.C. App. 358 (1984); citing to Kresge Co. v. Davis, 277 N.C. 654 (1971). A prosecutor’s decision to charge one individual but not another “does not constitute a denial of equal protection unless there is shown to be present in the decision to prosecute an element of intentional or purposeful discrimination;” furthermore, “such discriminatory purpose is not presumed; rather, the good faith of the officers is presumed and the burden is upon the complainant to show the intentional or purposeful discriminations upon which he relies.” Id.

Defendant’s Allegation of Selective Prosecution

A defendant who makes a motion to dismiss a prosecution on the grounds that the prosecutor impermissibly selected the defendant to be prosecuted has the burden of showing that: (1) the defendant has been selected for prosecution while others similarly situated who committed the same acts have not been prosecuted; and (2) the discriminatory selection for prosecution was invidious and done in bad faith, resting on such impermissible considerations as race, religion, or the desire to prevent the defendant’s exercise of constitutional rights. See State v. Pope, 213 N.C. App. 413 (2011); State v. Davis, 96 N.C. App. 545 (1989); State v. Howard, 78 N.C. App. 262 (1985); State v. Rogers, 68 N.C. App. 358 (1984); State v. Cherry, 298 N.C. 86 (1979); State v. Dammons, 159 N.C. App. 284 (2003). All of the North Carolina appellate cases cited above rejected the defendants’ motions to dismiss on the ground of selective prosecution. For civil cases involving the same issues, see Moore v. City of Creedmoor, 120 N.C. App. 27 (1995); Majebe v. North Carolina Board of Medical Examiners, 106 N.C. App. 253 (1992); Grace Baptist Church v. City of Oxford, 320 N.C. 439 (1987); see also U.S. v. Armstrong, 517 U.S. 456 (1996); U.S. v. Venable, 666 F.3d 893 (4th Cir. 2012).

To raise a claim of selective prosecution, the defendant must first make a prima facie showing that he has been singled out for prosecution while other similarly situated individuals were not.  If the defendant meets that burden, he must then demonstrate by “a clear preponderance of proof” that the reason for his selective prosecution was the impermissible consideration alleged. Pope, 213 N.C. App. at 541; citing Howard, 78 N.C. App. at 267 (1985). The court may consider a number of factors in deciding whether there are “distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions” regarding each individual, including each person’s relative culpability, along with a number of other relevant factors that play a legitimate role in prosecutorial charging decisions, such as:  

  1. A prosecutor's decision to offer immunity to an equally culpable defendant because that defendant may choose to cooperate and expose more criminal activity;
  2. The strength of the evidence against a particular defendant;
  3. The defendant's role in the crime;
  4. Whether the defendant is being prosecuted by other authorities;
  5. The defendant's candor and willingness to plead guilty;
  6. The amount of resources required to convict a defendant;
  7. The extent of prosecutorial resources;
  8. The potential impact of a prosecution on related investigations and prosecutions;
  9. Prosecutorial priorities for addressing specific types of illegal conduct.

See Venable, 666 F.3d at 901. In Venable, which analyzed the same issue under federal law, the court refused to take a “narrow approach” or apply these factors in a “mechanistic fashion,” because “[m]aking decisions based on the myriad of potentially relevant factors and their permutations require the very professional judgment that is conferred upon and expected from prosecutors in discharging their responsibilities.” Id., citing U.S. v. Olvis, 97 F.3d 739, 744 (4th Cir. 1995); see also State v. Pope, 213 N.C. App. 413 (2011) (defendant was a supervisor and therefore not similarly situated to lower-level employees who were not charged); State v. Davis, 96 N.C. App. 545 (1989) (defendant was a tax protestor and therefore not similarly situated to the numerous other people who failed to pay taxes due to error or neglect – and even if he was selected for prosecution because of his outspoken views, prosecuting him for the “deterrent effect” it would have on others would not be an impermissible purpose).

Portions of this entry were excerpted from the 2013 North Carolina Defender Manual, Volume I, Chapter 5.