CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, December 1, 2022

Rubinstein on Remedial Vagueness and Selective Prosecution and Enforcement

Guy Rubinstein has posted Selective Prosecution, Selective Enforcement, and Remedial Vagueness (2022 Wis. L. Rev. 825) on SSRN. Here is the abstract:

The Supreme Court has explicitly decided not to specify the remedy a criminal defendant proven to be the victim of selective prosecution or selective enforcement should be granted, if any. This Article includes a theoretical analysis of the possible ramifications of the Court’s decades long approach, which it refers to as “remedial vagueness.”

The analysis shows that under the situation of remedial vagueness, criminal courts handling selective prosecution or selective enforcement claims may have various incentives to refrain from ruling on the proper remedy question themselves. Consequently, courts may have an increased incentive to reject such claims on the merits, even when they have reason to believe that a violation has in fact occurred. In turn, there may be a lower incentive for prosecutors and law enforcement officers to refrain from engaging in selective prosecution or selective enforcement and a higher incentive for criminal defendants to avoid raising such claims in court, instead agreeing to a favorable plea offer. The analysis also suggests that remedial vagueness may have contributed to the fact that claims of selective enforcement fail not only in criminal proceedings, but also in civil suits for damages against police officers.

Dispelling remedial vagueness by adopting dismissal of criminal charges or suppression of evidence as remedies can be expected to increase the incentive for courts to accept selective prosecution or selective enforcement claims and therefore improve the deterrence of such violations.

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