CHAPTER 15

SELECTIVE AND VINDICTIVE PROSECUTION

§ 15.01 Introduction

§ 15.02 Selective Prosecution

§ 15.03 Vindictive Prosecution

§ 15.01

Introduction

Prosecutors generally have a free hand in deciding whom to charge and what to charge them with, in part because courts see such decisions and the motivations behind them as "ill-suited to judicial review"{1} and in part for separation-of-powers reasons.{2} The federal equal protection and due process clauses do impose some limits, although courts rarely find violations.

§ 15.02

Selective Prosecution

The equal protection clause forbids "selective" prosecutions - the use of the criminal process to punish protected classes or interests. The Vermont Supreme Court outlined the elements of the claim as follows:

To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution,{3} and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.{4}

"Bad faith" or an improper motivation can be shown by an intent to stifle protected speech, as in the prosecution of vocal antiwar protesters.{5} By contrast, a "passive" enforcement policy, by which only people who announce their refusal to comply with the selective service law are prosecuted, passes constitutional muster, even if the policy may have the effect of punishing vocal nonregistrants.{6}

In State v. Zaccaro{7} the Vermont Supreme Court rejected a claim that the defendant was singled out for prosecution because he was the son of a nationally known figure, absent a showing that others similarly situated had not been prosecuted, and that the defendant's local prominence was a motivating factor in the decision to prosecute. In State v. Angelucci{8} allegations that the prosecutor charged the defendant as a habitual offender out of disappointment with the result of a prior case, citing his emotional conduct and statements, were held insufficient to warrant a hearing.

§ 15.03

Vindictive Prosecution

When initial charges have been brought, the prosecutor's decision to up the ante is limited by the due process prohibition against official "vindictiveness." The same principle that prevents a judge from vindictively punishing a defendant for his successful appeal applies to analogous conduct by prosecutors,{9} and as with judges certain prosecutorial conduct will raise a presumption of vindictiveness.

The presumption was triggered in Blackledge v. Perry, where a prosecutor obtained a felony assault indictment after the defendant asserted his right to trial de novo on a misdemeanor assault conviction, even though there was no evidence that the prosecutor acted in bad faith or with "an actual retaliatory motivation."{10} Blackledge, however, does not prevent a prosecutor from charging the defendant more harshly in response to all assertions of rights. In Bordenkircher v. Hayes{11} a threat to bring more serious charges if the defendant did not plead guilty was held not to raise an appearance of vindictiveness; and in United States v. Goodwin{12} the bringing of felony charges after the defendant's demand for a jury trial was also not a Blackledge violation.

Although pretrial plea-bargaining threats of this sort do not raise a presumption of vindictiveness, the United States Supreme Court has not said that actual vindictiveness in plea bargaining comports with due process. In Goodwin the prosecutor had not suggested that his new charge was intended "to influence the respondent's conduct[,]" and the court noted that its holding did not "foreclose the possibility that a defendant in an appropriate case might prove objectively that the prosecutor's charging decision was motivated by a desire to punish. . . ."{13}

The Vermont Supreme Court rejected a Blackledge claim in State v. Livi,{14} where the defendant won acquittals on three charges of driving with a suspended license (on the state's failure to show that he ever had a driver's license), and was then charged and convicted of a fourth allegation of the same offense, when the state came up with the missing evidence. The court found no vindictiveness in this scenario, distinguishing Blackledge on the ground that "[t]he second trial was not a retrial resulting from a successful defense, but rather a new case."{15}

The Vermont court's narrow view of the due process presumption of judicial vindictiveness{16} suggests a similar reluctance to limit prosecutors on this ground.

1. Wayte v. United States, 470 U.S. 598, 607 (1985).

2. State v. Angelucci, 137 Vt. 272, 283 (1979).

3. Prosecutorial "selectivity" is not in itself a cause for complaint. State v. Angelucci, 137 Vt. 272, 283 (1979) (citing Oyler v. Boles, 368 U.S. 448, 456 (1962)).

4. State v. Zaccaro, 154 Vt. 83, 92 (1990) (quoting United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974)).

5. State v. Angelucci, 137 Vt. 272, 283-84 (1979) (citing United States v. Falk, 479 F.2d 616 (7th Cir. 1973); United States v. Steele, 461 F.2d 1148 (9th Cir. 1972); and United States v. Crowthers, 456 F.2d 1074 (4th Cir. 1972)).

6. Wayte v. United States, 470 U.S. 598, 609-10 (1985). See also McCleskey v. Kemp, 481 U.S. 279, 298 (1987) (Supreme Court dismissed statistical evidence that Georgia's capital punishment scheme was administered in a racially discriminatory manner, absent proof that it was maintained "at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group").

7. 154 Vt. 83, 92-93 (1990).

8. 137 Vt. 272, 282-84 (1979).

9. Blackledge v. Perry, 417 U.S. 21, 27-28 (1974) (citing North Carolina v. Pearce, 395 U.S. 711 (1969)). See § 14.08, supra.

10. Blackledge v. Perry, 417 U.S. 21, 28-29 (1974).

11. 434 U.S. 357 (1978).

12. 457 U.S. 368 (1982).

13. United States v. Goodwin, 457 U.S. 368, 380-81, 384 (1982).

14. 146 Vt. 641 (1986).

15. State v. Livi, 146 Vt. 641, 642 (1986). In its contention that the defendant was prosecuted because of a prosecutor's pique over an earlier loss, the vindictiveness claim in Livi is similar to the selective prosecution claim rejected in State v. Angelucci, 137 Vt. 272, 282 (1979). See § 15.02, supra.

16. State v. Percy, No. 88-438, slip op. 15-17 (Vt. Oct. 5, 1990); State v. Davis, 155 Vt. 417, 419-21 (1990). See § 14.08, supra.