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September 10, 2008

Notable (though failed) attempt to attack prosecutorial discretion in Seventh Circuit

The Seventh Circuit has an extended discussion of prosecutorial discretion in the course of reject an interesting constitutional claim brought by a federal defendant in US v. Moore, No. 07-3770 (7th Cir. Sept. 10, 2008) (available here). Here is how the case starts:

Raymell Moore pled guilty to federal drug charges and was sentenced to a statutory mandatory minimum term of 10 years’ imprisonment.  On appeal, he raises a “class of one” equal protection challenge to his sentence.  He contends that he was similarly situated to a group of defendants charged in a statecourt drug conspiracy case and that the imposition of the statutory mandatory minimum sentence was irrational in light of its non-application to the state-court defendants.

September 10, 2008 at 02:39 PM | Permalink


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An interesting decision well supported by precedent. Let me pose an interesting question along the lines of a persistent theme on this blog - punishment for acquitted conduct. Let's say a defendant is acquitted of burglary in state court. The frustrated prosecutor calls up a federal colleague and asks her to take a companion drug case so the defendant gets hammered for something. That case would have never made its way to federal court without the bitter taste of an acquittal.

Or even better, suppose the case gets sent to federal court because of a suspicious that the defendant has committed some other serious offense that can't be proven (think Al Capone). Discretion is being exercised because there isn't even sufficient probable cause to file on the serious offense.

Is this unconstitutional? In my view it is not. It reflects the reality of discretionary charging decisions. The hypothetical defendant knew or should have known that his drug offense could have been prosecuted in state and federal court when he committed it. We shouldn't feel too bad for him that he has been picked out of the crowd. There will always be defendants who get thrown back or never considered for special attention. It reflects the reality of limited resources and the choices that have to be made. It also reflects the reality that if the law was different we would have to have a hearing in every case to discuss what cases were filed and not filed - an absurd result.

Posted by: Alan O | Sep 10, 2008 9:51:29 PM

I'll go you one better Alan O. Let's say that a defendant is charged w/murdering his wife in state court. He is acquitted. The frustrated state prosecutor calls the US Attorney. Because the defendant used the phone to arrange the hit that killed his wife (or some similar jurisdictional hook), he is charged with murder in federal court; the very same murder that the state jury just acquitted him of. I know of at least one occasion where this has occurred.

Now, under current precedent, this is perfectly constitutional. Separate soverigns and all that. But is that really right? Just?

Seems that the prosecution has all the respect in the world for the jury system when juries convict defendants. When they acquit defendants, on the other hand, screw them.

Posted by: Anon | Sep 10, 2008 11:03:28 PM

Alan 0: The acquittal scenario you describe is, of course, close to the facts of the dual prosecution of the state cops who beat on Rodney King in the infamous video. The feds prosecuted them only after -- and essentially only because --- they were acquitted in state court.

Posted by: Doug B. | Sep 11, 2008 9:30:35 AM

Anon. I agree with you. This is the real crime. I don't believe for one second that the scenario you described is constitutional. The notion that it doesn't offend double jeopardy is insane. And I rarely use that word. The only legal concept that I despise worse than that is the notion that a corporation is a "legal person." Justice Story is rotting in hell, I have no doubt.

Posted by: Daniel | Sep 12, 2008 12:45:55 PM

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