NCJ Number
13817
Journal
Journal of Criminal Law and Criminology Volume: 65 Issue: 1 Dated: (MARCH 1974) Pages: 62-74
Date Published
1974
Length
13 pages
Annotation
COURT OF APPEALS FOR THE SEVENTH CIRCUIT MAKES THE EQUAL PROTECTION REMEDY MORE ACCESSIBLE BY LOWERING THE BURDEN OF PROOF REQUIRED TO RAISE THIS DEFENSE.
Abstract
THE HISTORICAL DEVELOPMENT OF THE EQUAL PROTECTION DOCTRINE AS APPLIED TO DISCRIMINATORY PROSECUTION IS OUTLINED. THE AUTHOR NOTES THAT THE REMEDY HAS BEEN LARGELY UNAVAILABLE, IN PART BECAUSE COURTS ARE RELUCTANT TO ALLOW ONE GUILTY MAN TO GO FREE ONLY BECAUSE OTHERS EQUALLY GUILTY HAVE NOT BEEN PROSECUTED. PRIOR TO THE RECENT DECISIONS DISCUSSED, DEFENDANTS HAVE BEEN REQUIRED TO SHOW THAT THE DISCRIMINATION WAS DELIBERATE AND THAT IT WAS BASED ON A CHARACTERISTIC OF A CLASS WHICH SEPARATED IT FROM THOSE WHO WERE NOT PROSECUTED. FEW DEFENDANTS WERE ABLE TO MEET THESE REQUIREMENTS. IN UNITED STATES V. FALK, THE DEFENDANT WAS CHARGED WITH FAILURE TO POSSESS SELECTIVE SERVICE REGISTRATION AND CLASSIFICATION CARDS. HE ALLEGED THAT HE HAD BEEN SINGLED OUT FOR PROSECUTION BECAUSE OF HIS VOCAL OPPOSITION TO THE VIETNAM WAR AND HIS DRAFT COUNSELING ACTIVITIES. THE TRIAL COURT REFUSED TO HEAR HIS CLAIM, BUT ON APPEAL, THE SEVENTH CIRCUIT REVERSED HIS CONVICTION, HOLDING THAT IF THE DEFENDANT CAN MAKE A REASONABLE SHOWING OF DISCRIMINATORY PROSECUTION, THE BURDEN OF SHOWING NON-DISCRIMINATION SHIFTS TO THE PROSECUTOR, WHO MUST REVEAL HIS MOTIVES FOR THE PROSECUTION. IN DISCUSSING THE PROBABLE IMPACT OF THIS CASE, THE AUTHOR REJECTS THE VIEW THAT MANY CONVICTIONS WILL BE OVERTURNED USING THIS ARGUMENT. COURTS WILL STILL BE RELUCTANT TO RELEASE GUILTY DEFENDANTS, AND THIS RELUCTANCE WILL MAKE IT EXCEEDINGLY DIFFICULT FOR DEFENDANTS TO EVEN MAKE THE 'REASONABLE SHOWING' NECESSARY TO SHIFT THE BURDEN TO THE GOVERNMENT. IN ADDITION, THE BURDEN OF PERSUASION, IF THE GOVERNMENT REBUTS THE PRESUMPTION, REMAINS WITH THE DEFENDANT. THE MORE PROBABLE EFFECT OF THE FALK DECISION WILL BE MANY MORE CLAIMS OF EQUAL PROTECTION VIOLATIONS, BUT FEW THAT WILL ACTUALLY BE SUCCESSFUL.