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March 16, 2011

Eleventh Circuit rejects notable ACCA selective prosecution claim

The Eleventh Circuit today in US v Jordan, No. 10-11534 (11th Cir. March 16, 2011) (available here) rejects an interesting selective prosecution claim brought by a Georgia defendant asserting that "prosecutors in the Northern District of Georgia target African Americans for prosecution under the Armed Career Criminal Act."  Here is the heart of the panel's discussion of the claim:

The district court correctly denied Jordan’s motion to dismiss for selective prosecution because, at the very least, he failed to establish discriminatory effect.  As the record shows, Jordan was convicted of possession of a firearm and subject to the Armed Career Criminal Act sentencing enhancement under 18 U.S.C. § 924(e)(1), because he had been convicted of at least three prior qualifying convictions for purposes of the ACCA.  In order to establish discriminatory effect, Jordan would have to present clear evidence that a similarly situated defendant of another race was treated differently than he.  The data that Jordan submitted in his motion to dismiss showed only that African Americans account for approximately 93% of ACCA prosecutions in the Northern District of Georgia, while they account for significantly less than 93% of the general population or of the population of convicted felons who carry firearms.  Jordan’s data did not, however, include the criminal histories of the other defendants. As a result, his figures are not probative of the “similarly situated” inquiry of the discriminatory effect test.  See Bass, 536 U.S. at 864; Quinn, 123 F.3d at 1426.  Indeed, Jordan did not show that a single arrestee who was not prosecuted under the ACCA qualified for such prosecution, much less possessed a criminal history as substantial as his own.  Therefore, he “has not presented ‘some’ evidence tending to establish selective prosecution,” much less facts sufficient to create a reasonable doubt about the constitutionality of his prosecution.  Accordingly, Jordan was not entitled to an evidentiary hearing or discovery on the claim, and his selective prosecution claim fails.

I think the Eleventh Circuit is right on the law here, but I hope I am not the only one troubled to learn that there is evidence indicating that "African Americans account for approximately 93% of ACCA prosecutions in the Northern District of Georgia."  That data point alone does not itself prove or even necessarily suggest constitutionally-biased prosecutorial decision-making, but it is a data point that is deeply disturbing even if it is not in any way the product of constitutionally questionable decision-making.

March 16, 2011 at 03:33 PM | Permalink

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Comments

The 93-percent statistic is troubling. So is the notion that to support its apparent significance black defendants must prove the negative...that similarly situated non-black defendants were not prosecuted under the act.

Exactly how (with or without benefit of discovery) would one go about doing that?

Posted by: John K | Mar 17, 2011 11:19:34 AM

This gets back to the catch-22 nature of any selective prosecution claim: In order to prove selectivity, you need a lot of detailed evidence about other prosecutions, but you can't get the discovery you need to marshal that evidence until you provide substantial initial showing of selectivity, which must be supported by evidence, which you probably can't get without discovery...

Posted by: Anon | Mar 28, 2011 1:26:00 PM

I like what you have said,it is really helpful to me,thanks!

Posted by: Big pony | Apr 11, 2011 7:54:35 AM

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