Selective prosecution attacks not the underlying criminal charge but the government's decision to bring it. The Equal Protection Clause and the First Amendment forbid prosecutors from targeting defendants because of who they are or what they believe. To prevail, a defendant must show both that similarly situated people were not prosecuted and that the decision to prosecute was based on an impermissible ground such as race, religion, or the exercise of First Amendment rights.
In 2026, the SPLC filed a motion to dismiss its federal indictment, arguing the DOJ brought charges because of the civil rights organization's decades of litigation against right-wing groups—not because of genuine criminal conduct. Courts analyzing such claims examine the prosecution's stated reasons against evidence of differential treatment and improper motive.
Selective prosecution is distinct from vindictive prosecution, which arises when the government retaliates against a defendant for exercising a specific legal right such as filing an appeal or refusing a plea deal. Both defenses result in dismissal if proven, but their evidentiary tests differ. Courts grant prosecutors broad discretion, making selective prosecution one of the hardest constitutional defenses to win.
Prosecutorial power is enormous and nearly unreviewable at the charging stage. When that power targets political opponents or protected groups, it becomes a tool of repression. Selective prosecution doctrine is one of the few checks on that power, requiring the government to demonstrate its decisions are based on law—not politics.
People often assume that if the underlying conduct was illegal, the prosecution is legitimate. Courts reject that reasoning: the government cannot selectively enforce the law against disfavored groups even if those groups technically broke the law. The defense challenges the decision to prosecute, not the facts of the alleged crime.
Prosecutorial power is enormous and nearly unreviewable at the charging stage. When that power targets political opponents or protected groups, it becomes a tool of repression. Selective prosecution doctrine is one of the few checks on that power, requiring the government to demonstrate its decisions are based on law—not politics.
People often assume that if the underlying conduct was illegal, the prosecution is legitimate. Courts reject that reasoning: the government cannot selectively enforce the law against disfavored groups even if those groups technically broke the law. The defense challenges the decision to prosecute, not the facts of the alleged crime.