The Equal Protection Clause1 generally forbids the government from making distinctions based on race or other suspect classifications, like religion.2 But, of course, discrimination still happens, and equal protection violations ensue. A particular type of equal protection violation occurs when laws are enforced in a discriminatory manner — that’s called selective enforcement.3 If a citizen believes she’s been the victim of selective enforcement, she can mount a defense to the discriminatory prosecution or sue the government in a civil action. But those are post hoc remedies. And they are rarely successful.
This Note discusses a different way that the Supreme Court has dealt with potential selective enforcement violations. In some instances, executive officials have been vested with standardless and unbridled discretion. When the Supreme Court has seen that, it’s gotten worried. It has feared that executive officials, armed with unlimited discretion, could enforce the law in an invidious manner, targeting protected groups and people they didn’t like.
So, in those instances, the Court has stepped in prophylactically.4 It has jumped in to stop potential equal protection violations in their tracks. When the Court has done this, it engages in what this Note calls “Equal Protection Prophylaxis.”5
To be sure, when the Court has acted in this manner, it hasn’t explicitly invoked the Equal Protection Clause. Instead, it has couched its rulings in whatever constitutional provision was at issue, like the First or Fourth Amendments. But even if the clause itself wasn’t mentioned by name, its values and spirit lurked in the background.6
This Note doesn’t address whether Equal Protection Prophylaxis is good or bad. Nor does it assess whether it’s consistent with the original meaning of the Constitution. Instead, this Note puts a finger on the practice, and aims to tease out exactly how, why, and when the Court engages in it. Part I provides an overview of the standard ways individuals can challenge selective enforcement and prosecution. Part II discusses Equal Protection Prophylaxis in the First Amendment context. Part III does the same for the Fourth Amendment. Part IV takes a look at the Fourteenth Amendment’s Due Process Clause. Together, these Parts evince just how much the Court fears potential equal protection violations. They reveal that the Court is actually relatively comfortable with regimes that permit officials to burden the individual liberties of a bunch of citizens at once — so long as those regimes are void of discretion. But the Court won’t stand for the mere possibility that one person could be invidiously targeted under regimes of unbridled discretion. In other words, the Court believes it’s better that everyone’s individual liberties be burdened than that the liberties of one individual be potentially burdened on account of a potentially discriminatory use of discretion.7
Part V addresses prosecutorial discretion, which the Court has largely condoned despite the perception that it’s unbridled. Comparing prosecutorial discretion to discretion in other contexts will help us better understand when exactly the Court enlists Equal Protection Prophylaxis. That’s because a discussion of prosecutorial discretion makes clear that the Court is comfortable with discretion when some standard or limit is imposed on it — even if that limit is rather small. It’s only skeptical of discretion that is truly standardless or unbounded. That’s likely because when some standard is imposed on unbridled discretion, courts are able to engage in post hoc judicial review.
In those instances, the government has to provide courts with nondiscriminatory reasons for how it met a particular standard. At the very least, this process of judicial review ensures that government officials have some nondiscriminatory basis for their action — a basis that a reviewing court can assess and interrogate. True, officials might give pretextual rationales to hide their true discriminatory intent, but if there is an objective, nondiscriminatory reason for the action, the Court is comfortable handling those allegations of discriminatory enforcement post hoc.8 But when there’s no standard at all, the Court has little option but to resort to a prophylactic approach.
All in all, this Note puts a name to one weapon the Court keeps in its equal protection arsenal. Understanding why and how Equal Protection Prophylaxis is deployed not only helps us appreciate just how much the Court fears potential unequal enforcement but also clarifies when executive discretion becomes too much.
I. Post Hoc Equal Protection Claims
Let’s say you believe a law has been enforced against you because of your viewpoint or one of your protected characteristics. What is there to do? Well, you can mount a “selective enforcement” defense9 to the prosecution against you. Or, in the civil context, you can bring a selective enforcement claim against the government.10
Either way, establishing “selective enforcement” or “selective prosecution”11 under the Equal Protection Clause12 normally requires two things. First, you have to show that you were “similarly situated in material respects to other individuals against whom the law was not enforced.”13 If you meet this bar, you’ll often be able to get discovery.14 After that, you’ll have to show “that the government’s discriminatory selection of [you] for prosecution [or enforcement]15 [was] invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent [your] exercise of constitutional rights.”16
In practice, these claims are nearly impossible to prove. And that’s by design. “A selective-prosecution [or enforcement] claim asks a court to exercise judicial power over a ‘special province’ of the Executive”17: its prosecutorial and enforcement discretion.18 And courts are reticent to intrude on this province. A “‘presumption of regularity supports’ . . . prosecutorial decisions [so], ‘in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties.’”19 At bottom, this “standard is intended to be a ‘demanding’ and ‘rigorous’ one.”20
Many have emphasized just how hard it is to rebut that presumption. For instance, one commentator argues that the “similarly situated” requirement “imposes a barrier that is too high for almost any defendant alleging selective prosecution to obtain discovery, thus making the already difficult claim of race-based selective prosecution virtually impossible to prove.”21 Another notes that “it is difficult to find proof for a selective prosecution claim primarily because there is rarely any direct evidence of discrimination, leaving only circumstantial evidence at best. Furthermore, the circumstantial evidence that is available is difficult to verify.”22 One court even noted that a defendant “ha[d] failed to identify any cases at the Supreme Court or in [that] circuit where a[] . . . violation for selective law enforcement ha[d] been found.”23 To be sure, these sorts of claims are not impossible to prove.24 But the scholarship and the cases make clear that selective prosecution and enforcement claims are rarely successful.
The general futility of selective prosecution and enforcement claims is made worse by timeliness constraints. That is, these avenues for relief are post hoc remedies. One can only bring such a claim of selective enforcement and prosecution after one believes a law has been unequally applied.
But that doesn’t mean nothing has been done to prevent discrimination on the front end. As this Note addresses, the Supreme Court has developed a prophylactic tool to address concerns of potential unequal enforcement. In a variety of contexts, when executives are given standardless discretion to enforce the law, the Court has feared that invidious enforcement could follow. Accordingly, it has stepped in and employed Equal Protection Prophylaxis. This Note turns there next.
II. Prophylaxis and the First Amendment
Let’s start with the First Amendment. In this context, the Court has been skeptical of policies that vest executive officials with standardless discretion. With no guardrails, the Court worries that discretion may be used to abridge the fundamental rights of individuals based on their protected characteristics. To prevent this, the Court has enlisted Equal Protection Prophylaxis.
Eli Nachmany discusses a similar phenomenon in Bill of Rights Nondelegation.25 In that piece, Nachmany persuasively argues that “the [Supreme] Court has developed a robust jurisprudence that disfavors the delegation of unfettered discretion.”26 In a smattering of cases, “the Court has evinced hostility to the conferral — or delegation — of too much discretion to the executive to impair certain liberties that the Bill of Rights guarantees.”27 That’s especially true in the First Amendment context. As Nachmany points out, “[t]he Court’s suspicion of such discretion arose, in large part, from its fear that officials would use their power to discriminate among speakers based upon the content of their speech.”28 That’s right. But what Nachmany doesn’t address is that the Court’s jurisprudence in this area was also animated by equal protection concerns.
Take Saia v. New York29 — a case Nachmany discusses at length.30 There, a town required that a person obtain a permit to use sound amplification equipment.31 Residents had to apply to the town’s police chief, who, on his own, would decide whether to issue a permit or not.32 The Court didn’t like that. Its “main problem with the ordinance was that there were ‘no standards prescribed for the exercise of [the police chief’s] discretion.’”33 Indeed, “[i]n the [town’s] ordinance, ‘[t]he right to be heard [was] placed in the uncontrolled discretion of the Chief of Police. He [stood] athwart the channels of communication as an obstruction which [could] be removed only after [trial and appeal].’”34 In other words, the Court took issue with a single individual having unfettered discretion to decide which applicants could amplify their speech and which could not. Such discretion could lead to the suppression of ideas.35
That word — “could” — is important. Nachmany points out that what the Court did in Saia and subsequent First Amendment cases was take a prophylactic approach of sorts.36 The Court didn’t require litigants to wait and challenge licensing schemes only after their ability to speak was burdened. Instead, “the Court . . . permitted facial constitutional attacks.”37 In other words, individuals could challenge the discretionary regime itself — not just decisions made under the regime.38 The mere potential that rights could be violated under a regime of standardless discretion warranted that regime’s invalidation. That’s chiefly because such schemes can be “potential[ly] use[d] as instruments for selectively suppressing some points of view.”39 In this sense, the Court could be understood as engaging in a form of viewpoint discrimination prophylaxis — it jumped in to stop potential viewpoint suppression up front.
But something else was going on, too. While the Saia Court couched its opinion in the language of the First Amendment and “right[s],”40 its equal protection worries were palpable. Indeed, its prophylactic remedy was likely directed at avoiding potential equal protection violations — like discriminatory enforcement decisions based on religion41 — down the line. After all, the appellant in Saia was a Jehovah’s Witness.42 In the years leading up to Saia, Jehovah’s Witnesses were frequently targeted for engaging in religious activity and speech.43 And time and time again, the Supreme Court jumped in to put a stop to those prosecutions.44 True, those cases were adjudicated as First Amendment disputes.45 But even Justice Stevens pointed out that, in “many of [those] cases involv[ing] the solicitation efforts of the Jehovah’s Witnesses, the Court was properly sensitive to the risk that the ordinances could be used to suppress unpopular viewpoints.”46 In other words, the Court worried that certain ordinances could be used to target a group based on its protected characteristic, so it jumped in ex ante, before equal protection claims arose.
Saia, then, is an example of Equal Protection Prophylaxis. Unbridled, standardless, and uncontrolled discretion could lead to enforcement decisions that violate the Equal Protection Clause. So, the Court nipped it in the bud.
That equal protection played a role in the Court’s First Amendment jurisprudence became even clearer in later cases, where the Court seemed more concerned with preventing invidious enforcement than protecting substantiative speech rights. Consider Kovacs v. Cooper.47 In that case — decided less than one year after Saia — the Court confronted a city ordinance that outlawed the use of sound amplification equipment attached to vehicles that “emit[ted] . . . loud and raucous noises.”48
Kovacs didn’t involve a licensing scheme like the one in Saia. Instead, executive officials were tasked with enforcing a law already on the books: a law that ostensibly amounted to a total ban on the use of sound amplification devices. True, a three-Justice plurality contended that the ordinance “applie[d] only to vehicles with sound amplifiers emitting loud and raucous noises,”49 so — in theory — sound amplifiers that emitted noises that were neither loud nor raucous would be permitted. But that same plurality went out of its way to note that the ordinance put “no restriction upon the communication of ideas or discussion of issues by the human voice, by newspapers, by pamphlets, [or] by dodgers,”50 suggesting that — in practice — the law left open those types of modalities but banned the use of all sound amplification equipment. After all, how could one use that type of equipment in a way that didn’t “emit loud and raucous noises?” Indeed, that’s exactly what the concurring and dissenting opinions thought. Those opinions — which together accounted for a majority of the Court’s Justices — considered the ordinance a total ban on this form of communication.51 Justice Rutledge made that clear.52
Nonetheless, in the end, the ordinance was upheld.53 In light of Saia, the Court’s decision is noteworthy. The Court was more comfortable with totally banning the use of sound trucks (Kovacs) than it was with allowing a city official to exercise discretion over who could use sound amplification devices (Saia). In other words, the Court was ostensibly okay with no citizen being able to use a form of communication, but it was not okay with some citizens being able to use a form of communication if it meant that others might get denied the right to do so for an invidious reason.54
A similar phenomenon was on display in Fulton v. City of Philadelphia.55 In that case, the City of Philadelphia argued that the Catholic Social Services’ practice of “not certify[ing] same-sex couples to be foster parents”56 violated the City’s “standard foster care contract.”57 The relevant provision of the contract read as follows:
Provider shall not reject a child or family including, but not limited to, . . . prospective foster or adoptive parents, for Services based upon . . . their . . . sexual orientation . . . unless an exception is granted by the Commissioner or the Commissioner’s designee, in his/her sole discretion.58
The Court found that provision to be constitutionally problematic. Under Employment Division v. Smith,59 the “application of a neutral, generally applicable law to religiously motivated action”60 does not trigger heightened judicial scrutiny.61 But the Fulton Court maintained that “[t]he creation of a formal mechanism for granting exceptions renders a policy not generally applicable . . . because it ‘invite[s]’ the government to decide which reasons for not complying with the policy are worthy of solicitude.”62 That governmental procedure for granting exceptions was especially troubling to the Court because exemptions were made at the “sole discretion” of a single city official.63 Together, these characteristics made the provision “not generally applicable.”64 The Court subjected the provision to heightened scrutiny — a standard the City could not overcome.65
The Fulton Court’s approach to discretion is noteworthy in two respects. First, the Court recognized that the record before it was devoid of any instances of the City granting any exceptions in the past.66 In other words, the City’s discretion had never actually been used. And it certainly hadn’t been used in an invidious way. But that didn’t matter. The mere potential that unbridled discretion could be used to target someone on the basis of their faith called into question the constitutional validity of the provision. The prospect of hypothetical religious discrimination sprung the Court into action.
Second, the Court’s logic suggests that it would have been comfortable with the provision if the discretionary component had been removed. Indeed, Justice Alito pointed that out in his concurrence.67 If Justice Alito’s read of the Court’s logic is correct, then a provision that prohibited Catholic adoption agencies from making placement decisions based on sexual orientation would be “generally applicable,” so long as a city official didn’t have the sole discretion to grant exemptions to such a policy. The Court’s approach, then, mirrors its tack in Saia and Kovacs. The Fulton Court, in theory, seemed to have been relatively more comfortable with a government policy that burdened religious exercise. But it could not (or simply would not) countenance a policy that afforded an executive official unfettered discretion — discretion that could potentially be used to discriminate against members of a particular faith. In other words, infringements on religious exercise troubled the Court less than potential unequal enforcement.
Taking a step back, comparing Saia and Kovacs and lasering in on Fulton underscore the Court’s antipathy toward unequal enforcement of the laws. It’s that distaste that likely led the Court to adopt its prophylactic approach. Equal Protection Prophylaxis is a sweeping remedy. But the risks posed by standardless discretion warrant its deployment.
III. Prophylaxis and the Fourth Amendment
In the Fourth Amendment context, too, the Court has worried that giving unchecked discretion to executives could lead to discriminatory enforcement. So, in turn, it has extended its Equal Protection Prophylaxis approach. In a string of cases dealing with the so-called “special-needs exception,” the Court has denied government actors the standardless discretion to stop or seize individuals.
Before getting to the Court’s exercise of Equal Protection Prophylaxis, let’s talk about the special-needs exception. Ordinarily, if police want to “search” or “seize” an individual or property, they need “individualized suspicion.”68 That just means that the police must have either “probable cause”69 or “reasonable suspicion”70 that a specific individual or a specific piece of property is connected with some sort of criminal activity.71 But there’s an exception to this general rule. When law enforcement confronts a “special need,” the individualized suspicion requirement falls away.72
For the so-called “special needs exception” to apply, a few things must be true. First, the government has to be addressing a concern that is “divorced from the State’s general interest in law enforcement”73 — that is, its actions have to be directed at something other than “ordinary criminal wrongdoing.”74 If that’s the case, a court balances the government’s interest in conducting the search or seizure against the individual’s privacy interest75 and asks whether or not the government’s action “effectively address[es] the special need” at issue.76 If the balance tips in favor of the government and its actions are properly tailored, the special-needs exception applies.77
This Note will get to examples soon, but discretion has played a key role in the Supreme Court’s special-needs cases. When the Court balances the competing interests at stake, it has been skeptical of increased governmental discretion. Indeed, it has consistently found that when law enforcement exercises discretion, the nature of its eventual intrusions is greater. And the greater the intrusion, the more the scales tip in favor of protecting the individual interests at stake. In other words, the Court doesn’t allow the government to rely on the special-needs exception if its decision about who to search or seize involves too much discretion. Less discretion, on the other hand, means that the government can utilize the special-needs exception.
True, in the Fourth Amendment context, the Court has looked unfavorably on discretion because it enhances the intrusiveness of the government action. But something else was going on, too. In these cases, when the Court bristled and put a stop to too much discretion, it was also engaging in Equal Protection Prophylaxis. We’ll see that, like in the First Amendment context, the Court has found that standardless discretion is ripe for abuse — it can be used to target individuals on the basis of their protected characteristics. So, in cases when discretion is unbounded, the Court has jumped in and imposed standards on it. The Court has stopped equal protection violations before they can happen.
Let’s turn to the cases. Consider United States v. Brignoni-Ponce.78 There, the Court was asked to consider whether the government could conduct suspicionless “roving patrol” stops near the U.S.-Mexican border.79 In other words, even if “officers [had] no reason to believe that [a car’s] occupants [were] aliens or that other aliens [were] concealed in the vehicle,” could they randomly stop and question cars in “border areas?”80 The Court said no.81 Border control is a special need,82 but the individual interests at stake were too great. Indeed, if the Court accepted the government’s argument, “Border Patrol officers [would have been permitted to] stop motorists at random for questioning, day or night, anywhere within 100 air miles of the 2,000-mile border, on a city street, a busy highway, or a desert road, without any reason to suspect that they ha[d] violated any law.”83 That governmental intrusion was just too much for the Court to allow. So, the government couldn’t rely on the special-needs exception; it would need to point to individualized suspicion. If they wanted to stop motorists, “officers on roving patrol” would have to point to “specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain[ed] aliens who [might] be illegally in the country.”84 In other words, they would need “reasonable suspicion” of some wrongdoing.85
Discretion played a key role in the Court’s analysis. The Court recognized that “[i]n the context of border area stops, the reasonableness requirement of the Fourth Amendment demands something more than the broad and unlimited discretion sought by the Government.”86 Accepting the government’s logic “would subject the residents of these and other areas to potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers.”87 And “[t]he only formal limitation on that discretion appear[ed] to be [an] administrative regulation” that just marginally limited the scope of the government’s authority to stop vehicles.88 At bottom, then, the Court was worried about uninhibited government discretion. This type of discretion seemed to enhance the intrusiveness of the stop and unduly infringe on individual privacy interests. Accordingly, the suspicionless stops — with all the standardless discretion they entailed — didn’t comport with the Fourth Amendment. If officers wanted to conduct roving stops, they would need some level of suspicion. In Brignoni-Ponce, in other words, the Court put limits on standardless discretion.
Equal protection concerns also animated the Court’s approach. To be sure, the Equal Protection Clause was never cited in the opinion, and the Court’s ruling found its footing in the “reasonableness” requirement of the Fourth Amendment.89 But it wasn’t lost on the Court that government agents, wielding standardless discretion to investigate people not authorized to be in the United States, might end up stopping legal residents who looked a particular way. The Court recognized that “[l]arge numbers of native-born and naturalized citizens have the physical characteristics identified with Mexican ancestry, [but] . . . in the border area a relatively small proportion of them are [actually] aliens.”90 In a footnote, the Court again stressed that “many of the 950,000 other persons of Spanish origin living in these border States . . . may have a physical appearance similar to persons of Mexican origin.”91 The Court was likely worried that — armed with boundless discretion — officers would target legal residents for their ethnicity or race. So, the Court stepped in. It engaged in Equal Protection Prophylaxis.
Of course, even the bounded discretion imposed by the Court can be abused. A concurring opinion in Brignoni-Ponce recognized as much.92 But the Court still believed that some standard was better than none. That’s likely because requiring police to point to “articulable facts” would make officer action subject to judicial review.93 In court, police would have to offer some nondiscriminatory basis for the stop — a basis the court could assess and probe. If a standardless regime had persisted, equal protection violations could have abounded. And there would have been nothing — save post hoc selective enforcement claims94 — to stop those abuses.
The Court’s view on discretion and its associated pathologies was further teased out in United States v. Martinez-Fuerte.95 That case helps us better appreciate the Court’s thinking about when Equal Protection Prophylaxis is warranted. In that case, the Court decided whether the government could conduct suspicionless stops at a border checkpoint.96 The stops were suspicionless insofar as every car that drove through the checkpoint was stopped and its occupants briefly questioned — no matter if the government suspected them of criminal wrongdoing or not.97 Ultimately, the Court said the stops were kosher.98
Why? Well, the Court distinguished Martinez-Fuerte from Brignoni-Ponce. In the case at hand, “[t]he location of a fixed checkpoint [was] not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources.”99 In other words, the officials on the ground couldn’t just pick whom they wanted to stop. That was nothing like the roving-patrol stops at issue in Brignoni-Ponce. In those circumstances, there always lurked the “grave danger that such unreviewable discretion would be abused by some officers in the field.”100 But at a fixed border checkpoint, “field officers [could] stop only those cars passing the checkpoint, [so] there [was] less room for abusive or harassing stops of individuals than there was in the case of roving-patrol stops.”101 If every motorist were stopped, there would be no chance that a particular motorist could be targeted for a protected characteristic.102
Taking a step back, Martinez-Fuerte and Brignoni-Ponce teach us a great deal about the Court’s enlistment of Equal Protection Prophylaxis.
First, the Court’s approach in these two cases was much like its tack in Saia and Kovacs.103 The Court was more comfortable with a program that stopped every individual — without suspecting them of any wrongdoing — than it was with a roving-patrol regime that could target some citizens on the basis of their race or ethnicity. Seizing everyone without suspicion was less problematic to the Court than seizing some people on the basis of protected traits. In other words, when the choice was between discretionless regimes and regimes of unbounded discretion, the Court found the former — where the chance of invidious discrimination is diminished or eliminated entirely — more palatable. The Court’s approach to these cases, then, evinces just how much it worries about equal protection violations.104
Second, when the Brignoni-Ponce Court imposed a standard on unbounded discretion, it revealed that the Court just needs some standard to sink its teeth into. That’s because when some sort of standard exists, it can engage in post hoc judicial review. That process of review requires that the government offer up some nondiscriminatory reason for its actions. And the sufficiency of that reason can be assessed and analyzed by a court. But meaningful judicial review can’t happen when the government’s discretion is truly unfettered. All in all, this, too, evinces why the Court has a problem with unbounded discretion and why it feels the need, in some instances, to impose a limit upon it.
IV. Prophylaxis and the Due Process Clause
The Fifth and Fourteenth Amendments’ Due Process Clauses105 have been read to prohibit laws that are too vague. Laws are invalid under the so-called “void-for-vagueness” doctrine if they “fail[] to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.”106 Those types of laws, the Court has gathered, “encourage[] arbitrary and erratic arrests and convictions.”107 The Court has rooted the void-for-vagueness doctrine in a basic principle of the “rule of law”: that “[all persons] are entitled to be informed as to what the State commands or forbids.”108 But equal protection concerns animate the Court here, too.
This Note is not the first to make a form of this argument. In Equality by Other Means: The Substantive Foundations of the Vagueness Doctrine, Professor Tammy W. Sun charts how, in the 1960s, the void-for-vagueness doctrine began to “emphasi[ze] . . . substantive values underlying [it], in particular, equality.”109 Her impressive treatment of the issue argues “for conceptualizing vagueness as an instrument for vindicating constitutional principles such as equality.”110 And Sun is right. In some cases, when the Court employed the void-for-vagueness doctrine, it was engaging in Equal Protection Prophylaxis. Its rulings were technically rooted in the Due Process Clause, but it was likely motivated by fears that vaguely written laws would lead to equal protection violations down the road.
Take Papachristou v. City of Jacksonville111 — a case that Sun discusses at length.112 There, the Court invalidated Jacksonville’s anti-vagrancy ordinance.113 The Court recognized that such a vague statute gave law enforcers “unfettered discretion,”114 and, in turn, “furnishe[d]” them with “a convenient tool for ‘harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.’”115 Indeed, “the Court focused on the law’s effect on minority and disadvantaged groups — the poor, the dissenters, the nonconformists, the unpopular.”116 And in “conference discussions[,] . . . the Justices emphasized the danger inherent in laws that gave wide latitude to ‘police or judges . . . to go after anyone they do not like.’”117 True, “the Court’s analysis never confronted the matter of race directly.”118 But, as Sun notes, “Papachristou is today generally viewed as a case about police racism.”119
Worries about potential invidious enforcement likely also animated the Court’s decision in City of Chicago v. Morales.120 There, the Court confronted Chicago’s “Gang Congregation Ordinance, which prohibit[ed] ‘criminal street gang members’ from ‘loitering’ with one another or with other persons in any public place.”121 A plurality of the Court agreed with the Illinois Supreme Court’s view “that the ordinance [did] not provide sufficiently specific limits on the enforcement discretion of the police ‘to meet constitutional standards for definiteness and clarity.’”122 That was a problem, especially considering that the law “fail[ed] to give the ordinary citizen adequate notice of what [was] forbidden and what [was] permitted.”123 So, given that “the city ha[d] enacted an ordinance that [both] afford[ed] too much discretion to the police and [gave] too little notice to citizens who wish[ed] to use the public streets,” the law was declared void for vagueness.124
In a footnote, a plurality of the Court acknowledged the possibility of future invidious enforcement. It discussed the historical use of vagrancy laws “to keep former slaves in a state of quasi slavery.”125 And it noted that “Reconstruction-era vagrancy laws had especially harsh consequences on African-American women and children.”126 So, while the plurality opinion didn’t address potential invidious enforcement head-on, those worries likely played some role.127
So, Papachristou and Morales fit neatly into the Court’s prophylactic approach. In each case, the Court noticed that a law on the books gave enforcers “unfettered discretion,” and it worried that such unbounded discretion could be used in a way to invidiously target citizens. So, it jumped in and invalidated the law. It did so under the auspices of the Due Process Clause, but — as we’ve seen in other contexts — equal protection concerns lurked in the background. Once again, the Court engaged in Equal Protection Prophylaxis.
V. What About Prosecutorial Discretion?
So far, we’ve talked about contexts where the Court has been skeptical of government actors exercising too much discretion. In those cases, when government officials exercised standardless discretion, the Court thought that equal protection violations could occur down the line, so it put a stop to the policy or imposed some sort of standard. But there’s one context where the Court is comfortable with seemingly broad executive discretion — that is, of course, prosecutorial discretion.
Much ink has been spilled over prosecutorial discretion: the good,128 the bad,129 and the in-between.130 But it’s a straightforward concept: It’s “the power of the Executive to determine how, when, and whether to initiate and pursue enforcement proceedings.”131 And the Court has recognized that “[i]n our criminal justice system, the Government retains ‘broad discretion’ as to whom to prosecute.”132 Indeed, “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.”133
The Court has acknowledged the potential issues with such unbridled discretion. It has noted that “[t]here is no doubt that the breadth of discretion that our country’s legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse.”134 And indeed, some commentators have suggested that this discretion has been used in a racially unequal manner.135 But whether or not those critiques hold up, it’s certainly the case that any system that vests discretion in a government actor could be misused.
To be sure, there are some limitations on prosecutorial discretion. The Court has recognized that “broad though [prosecutorial] discretion may be, there are undoubtedly constitutional limits upon its exercise.”136 As has been discussed,137 the Equal Protection Clause requires “that the decision whether to prosecute may not be based on ‘an unjustifiable standard such as race, religion, or other arbitrary classification.’”138 If a defendant believes a prosecution was, in fact, based on an “unjustifiable standard,” she can bring what is called a “selective-prosecution claim.”139 To prove selective prosecution, “[t]he claimant must demonstrate that the . . . prosecutorial policy ‘had a discriminatory effect and . . . was motivated by a discriminatory purpose.’”140 “To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted.”141
But such claims are not only hard to mount,142 they are also post hoc. In other words, only after an individual believes a prosecutor has used her nearly unbridled discretion to bring an illegal prosecution can they, in turn, bring a selective-prosecution claim. The Court has not created prophylactic rules to limit a prosecutor’s seemingly unbounded discretion. But as we have seen, the Court will prophylactically put a stop to practices and policies that give executive officials too much discretion in other contexts. So, what can be made of this?
Upon closer examination, the Court’s approach here is actually consistent with its treatment of discretion in other contexts. Although many conceive of prosecutorial discretion as unbounded and limitless, it’s not. Prosecutors can move forward with prosecutions only if they establish “probable cause . . . that the accused committed an offense defined by statute.”143 True, decisions to seek an indictment or decline a prosecution are standardless.144 But in declining to prosecute someone, prosecutors “do[] not exercise coercive power over an individual’s liberty or property, and thus do[] not infringe upon interests that courts often are called upon to protect.”145 And if prosecutors choose to pursue a prosecution, they’ll need to establish probable cause.146 It’s that familiar standard that imposes some constraint on their discretion. And the Court, as we have seen, only requires that executive discretion be curbed by some limitation — no matter how small.147
Recall Brignoni-Ponce. There, the Court wouldn’t allow the government to conduct suspicionless and standardless stops.148 Instead, the Court insisted that officers develop “reasonable suspicion” before pulling over a motorist.149 Reasonable suspicion is a low bar.150 A concurrence in that case recognized as much.151 But that relatively minor limitation on discretion saved the policy. If a motorist wanted to challenge the stops, their only remedies would be post hoc.
The Court took a similar approach in Whren v. United States.152 There, the Court addressed whether officers could conduct pretextual stops of motorists.153 It concluded that they could.154 Its opinion rested on the fact that, even if a stop were pretextual, the police would always need some level of suspicion — reasonable suspicion or probable cause — to pull over a motorist.155 That is, they would be guided by some sort of standard. To be sure, the Court recognized that officers could enforce laws in a manner that violated the Equal Protection Clause.156 But if that were the case, motorists could bring those types of challenges post-enforcement.157 There was some standard governing the stops themselves, so Equal Protection Prophylaxis wasn’t necessary. That’s chiefly because, in these contexts, the Court would be able to engage in some sort of post hoc judicial review. It could consult the relevant standard and see if the government had met it with sufficient, nondiscriminatory reasons and evidence. But if there’s no standard at all, the Court can’t assess things after the fact, and the government need not provide any nondiscriminatory rationale for its action. When that’s the case, it has to jump in prophylactically.
All of this reveals one reason that the Court has generally been comfortable with seemingly broad prosecutorial discretion: the requirement to establish probable cause limits the prosecutor. It requires her to demonstrate a nondiscriminatory basis for the prosecution — the sufficiency of which can be interrogated by a grand jury or a court. And even if the probable cause standard might seem like an easy obstacle to overcome,158 it’s a standard, nonetheless. And the Court only enlists Equal Protection Prophylaxis in cases that lack any meaningful standard at all — in cases where discretion is truly unfettered and post hoc judicial review is impossible.
Conclusion
This Note puts a name to an approach that the Supreme Court has taken in a variety of constitutional contexts. When the Court confronts a policy or law that grants boundless discretion to executive officials, it steps in and engages in Equal Protection Prophylaxis. It does so because it fears the potential misuse of unfettered discretion.
That’s significant. When laws are applied unequally, individuals can bring selective enforcement or prosecution claims. But those are only post hoc fixes, and they are hard to win. This Note, however, has demonstrated that the Court also has a tool to address invidious and unequal enforcement on the front end. Equal Protection Prophylaxis stops unequal enforcement before it starts.
From the First to the Fourth to the Fourteenth Amendment, the Court has responded to standardless discretion with skepticism. And although it hasn’t invoked the Equal Protection Clause by name, the values of that Clause have imbued the Court’s handling of unchecked discretion in those contexts.
This Note has also touched upon a somewhat curious aspect of the Court’s stance on discretion.159 Across cases, the Court seems to have been relatively comfortable with discretionless regimes that infringe on the liberties of lots of people. But it’s been comparatively more skeptical of discretionary regimes — that’s because these sorts of policies could lead to potential equal protection violations. The Court’s difference in approach to these issues evinces just how much it fears invidious discrimination: That constitutional wrong has to be stopped before it starts.
But this Note has also made clear that the Court hasn’t been wary of all types of discretion. In fact, it’s only truly unfettered and standardless discretion that troubles the Court. When discretion is limited or curbed — even in a very slight way — the Court is much more receptive to it. That’s likely because the Court can engage in some sort of judicial review of the government action after the fact. It can consult the relevant standard and judge whether or not the government satisfies it. Importantly, during that inquiry, the government has to provide a nondiscriminatory rationale for its actions — a rationale the sufficiency of which the Court can assess and interrogate. When government officials are bound by no standard at all, that sort of review is impossible. For the Court, in those instances, prophylactic remedies are needed.
All in all, recognizing when the Court enlists Equal Protection Prophylaxis — and when it doesn’t — helps us better appreciate exactly when executive discretion becomes constitutionally problematic.