Prosecutorial Discretion: When Is Enforcement Discriminatory?

Dinesh D'Souza

In criminal law, those accused of wrongdoing typically claim innocence and maintain that they have done nothing wrong.  But what about when an individual admits to the crime itself while arguing that the enforcement of the specific law against him is discriminatory in nature?

In early January, conservative commentator Dinesh D’Souza was indicted on federal charges of violating campaign finance laws by funneling money to a New York Senate Candidate, Wendy Long, via straw donors.  A straw donor is simply a person who illegally takes money from another individual and uses it for the specific purpose of making a political donation in their own name.  The Federal Election Campaign Act reads, “[n]o person shall make a contribution in the name of another person or knowingly permit his name to be used to effect such a contribution, and no person shall knowingly accept a contribution made by one person in the name of another person.”

Filed in U.S. District Court in New York, the criminal charges allege that in 2012, Mr. D’Souza illegally reimbursed individuals whom he asked to make donations to Ms. Long’s Senate Campaign.  Mr. D’Souza was charged with one count of making illegal campaign contributions, which has a maximum sentence of two years in prison, and one count of providing false statements to the Federal Election Commission, which has a maximum sentence of five years in prison.  Mr. D’Souza, a well-known, and often inflammatory, conservative author, most recently known for his polemical documentary “2016: Obama’s America” does not dispute funneling a total of $20,000 to Ms. Long.  He does, however, disagree with prosecutors about whether or not it violated federal law.

While Senator Ted Cruz and many conservative activists and politicians alike have come to the embattled author’s defense, Mr. D’Souza recently found support from an unlikely ally: Alan Dershowitz.  Mr. Dershowitz blasted the charges, contending, “the idea of charging him with a felony doesn’t sound like a proper exercise of prosecutorial discretion.  I can’t help but think that [D’Souza’s] politics have something to do with it. . . .  It smacks of selective prosecution.”

Mr. D’Souza and his supporters believe that he is being targeted for his political views and that if this application of the law were carried out to every instance of illegal campaign contributions, there would be no room in prisons for more serious criminals.  Former FEC commissioner David Mason was surprised by the FBI’s decision to arrest Mr. D’Souza, which Mr. Mason considered to be gratuitous given that “[D’Souza] is obviously not a flight risk.  White collar indictments are made lots of times without an arrest being made.”

A federal defendant may file a motion to dismiss the case for “selective prosecution,” a claim that the prosecutor has brought the charges against the individual for reasons forbidden by the Constitution. Specifically, a prosecutor’s decision to bring charges cannot be based on an unjustifiable standard such as race, religion, or some other arbitrary classification.

The standard for a motion to dismiss based on selective prosecution is quite high.  To prevail on a claim of selective prosecution, a defendant must show that the particular administration of a criminal statute against him is “directed so exclusively against a particular class of persons. . . with a mind so unequal and oppressive” that the individual is effectively denied equal protection of law.

                                                                                                                   

Past Supreme Court decisions indicate that federal prosecutors have extraordinarily broad discretion in deciding whom they can bring charges against.  As long as the prosecutor has probable cause to believe an individual committed an offense defined by statute, then the decision to prosecute and what charges to bring rest entirely with the prosecutor.

Courts often presume that prosecutors have acted appropriately and can only grant the motion with clear evidence of discriminatory targeting.  If Mr. D’Souza moved to dismiss the cases for selective prosecution, he would need to present clear evidence that the government’s decision to prosecute was based on his political beliefs and that similarly situated individuals who did not engage in political speech were not prosecuted.

 It remains incredibly difficult for any individual to find clear evidence that the government did not prosecute similarly situated individuals, as the government’s investigations are not public information.  A defendant could request discovery from the government about whether other individuals who committed similar crimes were not charged but the defendant must prove some evidence in support of both elements of the selective prosecution standard. 

The case of attorney Pierce O’Donnell would deeply undercut Mr. D’Souza’s potential claim of selective prosecution.  In 2008, Mr. O’Donnell was charged with making nearly $26,000 in illegal campaign contributions to former Democratic presidential candidate John Edwards’ 2004 campaign.  He was convicted and ordered to pay $155,200 in fines and penalties, serve three years probation, and refrain from political fundraising for three years.

Cases like Mr. D’Souza’s are a reminder of the power that the government has in what charges they can bring against an individual.  While at first glance the decision to arrest an individual for a relatively minor violation may appear to be selective, the ability to dismiss the case on that basis remains a high burden for a defendant.

Due to the inherent difficulty in prevailing on a motion to dismiss for selective prosecution, it may prove more beneficial to defense attorneys if they focus their efforts on pursuing plea deals.  Similarly, prosecutors should use their discretion to make plea deals for fines and probation rather than congest the prison system with non-violent offenders.  Furthermore, cases like Mr. D’Souza’s might prompt a larger discussion about the effectiveness of current campaign finance laws and whether limits on expenditures truly accomplish their intended purpose.

Omeed Assefi  

Junior Staffer, Criminal Law Practitioner

Image by Mark Taylor from Rockville, via Wikimedia Commons.