517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687, argued 26 Feb. 1996, decided 13 May 1996 by a vote of 8 to 1 Chief Justice Rehnquist delivered the opinion of the Court, Justices Souter and Ginsburg filed concurring opinions, Justice Breyer filed an opinion concurring in part and concurring in the judgment, and Justice Stevens filed a dissenting opinion. Armstrong, an African-American from Los Angeles, California, challenged his federal indictment for conspiracy to distribute “crack” cocaine on the ground that he was selected for prosecution because of his race, in violation of the equal protection component of the Due Process Clause of the Fifth Amendment. The majority held that he was not entitled to discovery because he failed to show that the government declined to prosecute similarly situated suspects of other races. Although defendant presented some evidence that every crack cocaine case prosecuted in Los Angeles concerned a black defendant, and that federal drug sentencing laws have a discriminatory effect, he failed to identify individuals who were not black and who could have been prosecuted but were not. The Court rejected the Ninth Circuit's presumption that “people of all races commit all types of crimes.”
Justice John Paul Stevens, in a dissent since championed by many scholars, was the sole justice to review the political and social context of the defendants’ claim. First, he noted that the Anti-Drug Abuse Act of 1986 treats one gram of crack cocaine as the equivalent of 100 grams of powder cocaine for sentencing purposes, leading to sentences for crack offenders that average three to eight times longer than sentences for comparable powder defendants. He further documents that while 55 percent of persons who have used crack are white, they represent only 4 percent of federal offenders convicted of trafficking in crack, leading to an average sentence for blacks of over 40 percent longer than for whites. He argued that this troubling racial pattern of enforcement, coupled with the United States’ legacy of slavery, should permit the discovery order.
The Court reiterated the extraordinarily high showing a defendant must make in order to obtain discovery on a selective prosecution claim in United States v. Bass (2002). There, the Court, in a per curiam opinion, reversed a discovery order issued by the Sixth Circuit in favor of a black defendant who argued that nationwide statistics demonstrated that the United States charges blacks with death-eligible offenses more than twice as often as it charges whites. Raw statistics regarding overall charges, the Court said, say nothing about charges brought against “similarly situated defendants.”
Susan R. Klein