A July, 1980, Presidential Proclamation directed certain young
male citizens to register with the Selective Service System during
a specified week. Petitioner fell within the prescribed class, but
did not register. Instead, he wrote letters to Government
officials, including the President, stating that he had not
registered and did not intend to do so. These letters were added to
a Selective Service file of young men who advised that they had
failed to register or who were reported by others as having failed
to register. Subsequently, Selective Service adopted a policy of
passive enforcement under which it would investigate and prosecute
only the nonregistration cases contained in this file. In
furtherance of this policy, Selective Service, in June, 1981, sent
a letter to each reported nonregistrant warning that a failure to
register could result in criminal prosecution. Petitioner received
such a letter, but did not respond. Thereafter, Selective Service
transmitted to the Department of Justice, for investigation and
potential prosecution, the names of petitioner and others
identified under the passive enforcement policy. The Department of
Justice, after screening out those who appeared not to be required
to register, referred the remaining names to the Federal Bureau of
Investigation and appropriate United States Attorneys. Petitioner's
name was one of those so referred. Then, pursuant to the Department
of Justice's so-called "beg" policy, whereby United States
Attorneys, assisted by the FBI, made an effort to persuade
nonregistrants to change their minds, the United States Attorney
for petitioner's district sent him a letter urging him to register
or face possible prosecution. Again petitioner failed to respond.
Nor did he register during an authorized grace period or after
further urging by FBI agents to do so. Accordingly, he was indicted
for knowingly and willfully failing to register in violation of the
Military Selective Service Act. The District Court dismissed the
indictment on the ground that the Government had failed to rebut
petitioner's
prima facie case of selective prosecution.
The Court of Appeals reversed, holding that, although petitioner
had shown that others similarly situated had not been prosecuted
for conduct similar to his, he had not shown that the Government
focused its investigation on him because of his protest
activities.
Page 470 U. S. 599
Held: The Government's passive enforcement policy,
together with its "beg" policy, did not violate either the First or
Fifth Amendment. Pp.
470 U. S.
607-614.
(a) Selective prosecution claims may appropriately be judged
according to ordinary equal protection standards. These standards
require petitioner to show both that the passive enforcement policy
had a discriminatory effect and that it was motivated by a
discriminatory purpose. Petitioner has not met this burden. All he
has shown is that those eventually prosecuted, along with many not
prosecuted, reported themselves as having violated the law. He has
not shown that the enforcement policy selected nonregistrants for
prosecution on the basis of their speech. The fact that the
Government prosecuted those nonregistrants who reported themselves
or who were reported by others demonstrates that the Government
treated all reported nonregistrants equally, and did not subject
vocal nonregistrants to any special burden. But even if the passive
policy had a discriminatory effect, petitioner has not shown that
the Government intended such a result. Absent a showing that the
Government prosecuted petitioner because of his protest activities,
his claim of selective prosecution fails. Pp.
470 U. S.
607-610.
(b) With respect to the First Amendment, Government regulation
is justified if (1) it is within the Government's constitutional
power, (2) it furthers an important or substantial governmental
interest, (3) the governmental interest is unrelated to the
suppression of free speech, and (4) the incidental restriction on
alleged First Amendment freedoms is no greater than is essential to
the furtherance of that interest.
United States v.
O'Brien, 391 U. S. 367. In
this case, neither the first nor third requirement is disputed, and
the passive enforcement policy meets both the second and fourth
requirements. The reasons the Government offers in defense of the
passive enforcement policy -- it promotes prosecutorial efficiency,
the nonregistrants' letters to Selective Service provided strong
evidence of their intent not to comply, and prosecution of visible
nonregistrants was an efficient way to promote general deterrence
-- are sufficiently compelling to satisfy the second requirement as
to either those who reported themselves or those who were reported
by others. The passive enforcement policy meets the fourth
requirement, for it placed no more limitation on speech than was
necessary to ensure registration, and was the only effective
interim solution available to carry out the Government's compelling
interest. Pp.
470 U. S.
610-614.
710 F.2d 1385, affirmed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and WHITE, BLACKMUN, REHNQUIST, STEVENS, and O'CONNOR,
JJ.,
Page 470 U. S. 600
joined. MARSHALL, J., filed a dissenting opinion, in which
BRENNAN, J., joined,
post, p.
470 U. S.
614.
JUSTICE POWELL delivered the opinion of the Court.
The question presented is whether a passive enforcement policy
under which the Government prosecutes only those who report
themselves as having violated the law, or who are reported by
others, violates the First and Fifth Amendments.
I
On July 2, 1980, pursuant to his authority under § 3 of the
Military Selective Service Act, 62 Stat. 605, as amended, 50
U.S.C.App. § 453, [
Footnote 1]
the President issued Presidential Proclamation
Page 470 U. S. 601
No. 4771, 3 CFR 82 (1981). This Proclamation directed male
citizens and certain male residents born during 1960 to register
with the Selective Service System during the week of July 21, 1980.
Petitioner fell within that class, but did not register. Instead,
he wrote several letters to Government officials, including the
President, stating that he had not registered and did not intend to
do so. [
Footnote 2]
Petitioner's letters were added to a Selective Service file of
young men who advised that they had failed to register or who were
reported by others as having failed to register. For reasons we
discuss
infra at
470 U. S.
612-613, Selective Service adopted a policy of passive
enforcement under which it would investigate and prosecute only the
cases of nonregistration contained in this file. In furtherance of
this policy, Selective Service sent a letter on June 17, 1981, to
each reported violator who had not registered and for whom it had
an address.
Page 470 U. S. 602
The letter explained the duty to register, stated that Selective
Service had information that the person was required to register
but had not done so, requested that he either comply with the law
by filling out an enclosed registration card or explain why he was
not subject to registration, and warned that a violation could
result in criminal prosecution and specified penalties. Petitioner
received a copy of this letter, but did not respond.
On July 20, 1981, Selective Service transmitted to the
Department of Justice, for investigation and potential prosecution,
the names of petitioner and 133 other young men identified under
its passive enforcement system -- all of whom had not registered in
response to the Service's June letter. At two later dates, it
referred the names of 152 more young men similarly identified.
After screening out the names of those who appeared not to be in
the class required to register, the Department of Justice referred
the remaining names to the Federal Bureau of Investigation for
additional inquiry, and to the United States Attorneys for the
districts in which the nonregistrants resided. Petitioner's name
was one of those referred.
Pursuant to Department of Justice policy, those referred were
not immediately prosecuted. Instead, the appropriate United States
Attorney was required to notify identified nonregistrants by
registered mail that, unless they registered within a specified
time, prosecution would be considered. In addition, an FBI agent
was usually sent to interview the nonregistrant before prosecution
was instituted. This effort to persuade nonregistrants to change
their minds became known as the "beg" policy. Under it, young men
who registered late were not prosecuted, while those who never
registered were investigated further by the Government. Pursuant to
the "beg" policy, the United States Attorney for the Central
District of California sent petitioner a letter on October 15,
1981, urging him to register or face possible prosecution. Again
petitioner failed to respond.
Page 470 U. S. 603
On December 9, 1981, the Department of Justice instructed all
United States Attorneys not to begin seeking indictments against
nonregistrants until further notice. On January 7, 1982, the
President announced a grace period to afford nonregistrants a
further opportunity to register without penalty. This grace period
extended until February 28, 1982. Petitioner still did not
register.
Over the next few months, the Department decided to begin
prosecuting those young men who, despite the grace period and "beg"
policy, continued to refuse to register. It recognized that, under
the passive enforcement system, those prosecuted were "liable to be
vocal proponents of nonregistration" or persons "with religious or
moral objections." Memorandum of March 17, 1982, from Lawrence
Lippe, Chief, General Litigation and Legal Advice Section, Criminal
Division, Department of Justice, to D. Lowell Jensen, Assistant
Attorney General, Criminal Division, App. 301. It also recognized
that prosecutions would
"undoubtedly result in allegations that the [case was] brought
in retribution for the nonregistrant's exercise of his first
amendment rights."
Ibid. The Department was advised, however, that
Selective Service could not develop a more "active" enforcement
system for quite some time.
See infra at
470 U. S. 613.
Because of this, the Department decided to begin seeking
indictments under the passive system without further delay. On May
21, 1982, United States Attorneys were notified to begin
prosecution of nonregistrants. On June 28, 1982, FBI agents
interviewed petitioner, and he continued to refuse to register.
Accordingly, on July 22, 1982, an indictment was returned against
him for knowingly and willfully failing to register with the
Selective Service in violation of §§ 3 and 12(a) of the Military
Selective Service Act, 62 Stat. 605 and 622, as amended, 50
U.S.C.App. §§ 453 and 462(a). This was one of the first indictments
returned against any individual under the passive policy.
Page 470 U. S. 604
II
Petitioner moved to dismiss the indictment on the ground of
selective prosecution. He contended that he and the other indicted
nonregistrants [
Footnote 3]
were "vocal" opponents of the registration program who had been
impermissibly targeted (out of an estimated 674,000 nonregistrants
[
Footnote 4]) for prosecution
on the basis of their exercise of First Amendment rights. After a
hearing, the District Court for the Central District of California
granted petitioner's broad request for discovery and directed the
Government to produce certain documents and make certain officials
available to testify. The Government produced some documents and
agreed to make some Government officials available, but, citing
executive privilege, it withheld other documents and testimony. On
October 29, 1982, the District Court ordered the Government to
produce the disputed documents and witness. The Government declined
to comply, and, on November 5, 1982, asked the District Court to
dismiss the indictment in order to allow an appeal challenging the
discovery order. Petitioner asked for dismissal on several grounds,
including discriminatory prosecution.
On November 15, 1982, the District Court dismissed the
indictment on the ground that the Government had failed to
Page 470 U. S. 605
rebut petitioner's
prima facie case of selective
prosecution. [
Footnote 5]
Following precedents of the Court of Appeals for the Ninth Circuit,
the District Court found that, in order to establish a
prima
facie case, petitioner had to prove that (i) others similarly
situated generally had not been prosecuted for conduct similar to
petitioner's and (ii) the Government's discriminatory selection was
based on impermissible grounds such as race, religion, or exercise
of First Amendment rights.
549
F. Supp. 1376, 1380 (1982). Petitioner satisfied the first
requirement, the District Court held, because he had shown that all
those prosecuted were "vocal" nonregistrants [
Footnote 6] and because "[t]he inference is strong
that the Government could have located nonvocal nonregistrants, but
chose not to."
Id. at 1381. The District Court found the
second requirement satisfied for three reasons. First, the passive
enforcement program was "
inherently suspect'" because
"'it focuse[d] upon the vocal offender . . . [and was]
vulnerable to the charge that those chosen for prosecution [were]
being punished for their expression of ideas, a constitutionally
protected right.'"
Ibid., quoting
United States v. Steele,
461
Page 470 U. S. 606
F.2d 1148, 1152 (CA9 1972). Second, the Government's awareness
that a disproportionate number of vocal nonregistrants would be
prosecuted under the passive enforcement system indicated that
petitioner was prosecuted because of his exercise of First
Amendment rights. 549 F. Supp. at 1382. Finally, the involvement of
high Government officials in the prosecution decisions "strongly
suggest[ed] impermissible selective prosecution."
Id. at
1383. The District Court then held that the Government had failed
to rebut the
prima facie case.
The Court of Appeals reversed. 710 F.2d 1385 (CA9 1983).
Applying the same test, it found the first requirement satisfied,
but not the second. The first was satisfied by petitioner's showing
that, out of the estimated 674,000 nonregistrants, the 13 indicted
had all been vocal nonregistrants.
Id. at 1387. As to the
second requirement, the Court of Appeals held that petitioner had
to show that the Government focused its investigation on him
because of his protest activities.
Ibid.
Petitioner's evidence, however, showed only that the Government was
aware that the passive enforcement system would result in
prosecutions primarily of two types of men -- religious and moral
objectors and vocal objectors -- and that the Government recognized
that the latter type would probably make claims of selective
prosecution. Finding no evidence of impermissible governmental
motivation, the court held that the District Court's finding of a
prima facie case of selective prosecution was clearly
erroneous.
Id. at 1388. The Court of Appeals also found
two legitimate explanations for the Government's passive
enforcement system: (i) the identities of nonreported
nonregistrants were not known, and (ii) nonregistrants who
expressed their refusal to register made clear their willful
violation of the law. [
Footnote
7]
Page 470 U. S. 607
Recognizing both the importance of the question presented and a
division in the Circuits, [
Footnote
8] we granted certiorari on the question of selective
prosecution. 467 U.S. 1214 (1984). We now affirm.
III
In our criminal justice system, the Government retains "broad
discretion" as to whom to prosecute.
United States v.
Goodwin, 457 U. S. 368,
457 U. S. 380,
n. 11 (1982);
accord, Marshall v. Jerrico, Inc.,
446 U. S. 238,
446 U. S. 248
(1980).
"[S]o long as the prosecutor has probable cause to believe that
the accused committed an offense defined by statute, the decision
whether or not to prosecute, and what charge to file or bring
before a grand jury, generally rests entirely in his
discretion."
Bordenkircher v. Hayes, 434 U.
S. 357,
434 U. S. 364
(1978). This broad discretion rests largely on the recognition that
the decision to prosecute is particularly ill-suited to judicial
review. Such factors as the strength of the case, the prosecution's
general deterrence value, the Government's enforcement priorities,
and the case's relationship to the Government's overall enforcement
plan are not readily susceptible to the kind of analysis the courts
are competent to undertake. Judicial supervision in this area,
moreover, entails systemic costs of particular concern. Examining
the basis of a prosecution delays the criminal proceeding,
threatens to chill law enforcement by subjecting the prosecutor's
motives and decisionmaking to outside inquiry, and may undermine
prosecutorial effectiveness by revealing the Government's
enforcement policy. All these are substantial concerns that
Page 470 U. S. 608
make the courts properly hesitant to examine the decision
whether to prosecute.
As we have noted in a slightly different context, however,
although prosecutorial discretion is broad, it is not
"
unfettered.' Selectivity in the enforcement of criminal laws
is . . . subject to constitutional constraints." United States
v. Batchelder, 442 U. S. 114,
442 U. S. 125
(1979) (footnote omitted). In particular, the decision to prosecute
may not be "`deliberately based upon an unjustifiable standard such
as race, religion, or other arbitrary classification,'"
Bordenkircher v. Hayes, supra, at 442 U. S. 364,
quoting Oyler v. Boles, 368 U. S. 448,
368 U. S. 456
(1962), including the exercise of protected statutory and
constitutional rights, see United States v. Goodwin,
supra, at 457 U. S.
372.
It is appropriate to judge selective prosecution claims
according to ordinary equal protection standards. [
Footnote 9]
See Oyler v. Boles,
supra. Under our prior cases, these standards require
petitioner to show both that the passive enforcement system had a
discriminatory effect and that it was motivated by a discriminatory
purpose. [
Footnote 10]
Personnel Administrator
of
Page 470 U. S. 609
Massachusetts v. Feeney, 442 U.
S. 256 (1979);
Arlington Heights v. Metropolitan.
Housing Development Corp., 429 U. S. 252
(1977);
Washington v. Davis, 426 U.
S. 229 (1976). All petitioner has shown here is that
those eventually prosecuted, along with many not prosecuted,
reported themselves as having violated the law. He has not shown
that the enforcement policy selected nonregistrants for prosecution
on the basis of their speech. Indeed, he could not have done so,
given the way the "beg" policy was carried out. The Government did
not prosecute those who reported themselves but later registered.
Nor did it prosecute those who protested registration but did not
report themselves or were not reported by others. In fact, the
Government did not even investigate those who wrote letters to
Selective Service criticizing registration unless their letters
stated affirmatively that they had refused to comply with the law.
Affidavit of Edward A. Frankle, Special Assistant to the Director
of Selective Service for Compliance, App. 635. The Government,
Page 470 U. S. 610
on the other hand, did prosecute people who reported themselves
or were reported by others, but who did not publicly protest. These
facts demonstrate that the Government treated all reported
nonregistrants similarly. It did not subject vocal nonregistrants
to any special burden. Indeed, those prosecuted in effect selected
themselves for prosecution by refusing to register after being
reported and warned by the Government.
Even if the passive policy had a discriminatory effect,
petitioner has not shown that the Government intended such a
result. The evidence he presented demonstrated only that the
Government was aware that the passive enforcement policy would
result in prosecution of vocal objectors, and that they would
probably make selective prosecution claims. As we have noted,
however:
"'Discriminatory purpose' . . . implies more than . . . intent
as awareness of consequences. It implies that the decisionmaker . .
. selected or reaffirmed a particular course of action at least in
part 'because of,' not merely 'in spite of,' its adverse effects
upon an identifiable group."
Personnel Administrator of Massachusetts v. Feeney,
supra, at
442 U. S. 279
(footnotes and citations omitted). In the present case, petitioner
has not shown that the Government prosecuted him because of his
protest activities. Absent such a showing, his claim of selective
prosecution fails.
IV
Petitioner also challenges the passive enforcement policy
directly on First Amendment grounds. [
Footnote 11] In particular, he claims that,
"[e]ven though the [Government's passive] enforcement policy did
not overtly punish protected speech as
Page 470 U. S. 611
such, it inevitably created a content-based regulatory system
with a concomitantly disparate, content-based impact on
nonregistrants. [
Footnote
12]"
Brief for Petitioner 23. This Court has held that, when, as
here,
"'speech' and 'nonspeech' elements are combined in the same
course of conduct, a sufficiently important governmental interest
in regulating the nonspeech element can justify incidental
limitations on First Amendment freedoms."
United States v. O'Brien, 391 U.
S. 367,
391 U. S. 376
(1968). Government regulation is justified
"if it is within the constitutional power of the Government; if
it furthers an important or substantial governmental interest; if
the governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the
furtherance of that interest."
Id. at
391 U. S. 377.
Accord, Seattle Times Co. v. Rhinehart, 467 U. S.
20,
467 U. S. 32
(1984);
Procunier v. Martinez, 416 U.
S. 396,
416 U. S. 413
(1974). In the present case, neither the first nor third condition
is disputed.
There can be no doubt that the passive enforcement policy meets
the second condition. Few interests can be more compelling than a
nation's need to ensure its own security.
Page 470 U. S. 612
It is well to remember that freedom as we know it has been
suppressed in many countries. Unless a society has the capability
and will to defend itself from the aggressions of others,
constitutional protections of any sort have little meaning.
Recognizing this fact, the Framers listed "provid[ing] for the
common defence," U.S.Const., Preamble, as a motivating purpose for
the Constitution, and granted Congress the power to "provide for
the common Defence and general Welfare of the United States," Art.
I, § 8, cl. 1.
See also The Federalist Nos. 4, 24, and 25.
This Court, moreover, has long held that the power "to raise and
support armies . . . is broad and sweeping,"
United States v.
O'Brien, supra, at
391 U. S. 377;
accord, Lichter v. United States, 334 U.
S. 742,
334 U. S.
755-758 (1948);
Selective Draft Law Cases,
245 U. S. 366
(1918), and that the "power . . . to classify and conscript
manpower for military service is
beyond question,'" United
States v. O'Brien, supra, at 391 U. S. 377,
quoting Lichter v. United States, supra, at 334 U. S. 756;
accord, Selective Draft Law Cases, supra. With these
principles in mind, the three reasons the Government offers in
defense of this particular enforcement policy are sufficiently
compelling to satisfy the second O'Brien requirement -- as
to either those who reported themselves or those who were reported
by others.
First, by relying on reports of nonregistration, the Government
was able to identify and prosecute violators without further delay.
Although it still was necessary to investigate those reported to
make sure that they were required to register and had not, the
Government did not have to search actively for the names of these
likely violators. Such a search would have been difficult and
costly at that time. Indeed, it would be a costly step in any
"active" prosecution system involving thousands of nonregistrants.
The passive enforcement program thus promoted prosecutorial
efficiency. Second, the letters written to Selective Service
provided strong, perhaps conclusive evidence of the
nonregistrant's
Page 470 U. S. 613
intent not to comply -- one of the elements of the offense.
[
Footnote 13] Third,
prosecuting visible nonregistrants was thought to be an effective
way to promote general deterrence, especially since failing to
proceed against publicly known offenders would encourage others to
violate the law.
The passive enforcement policy also meets the final requirement
of the
O'Brien test, for it placed no more limitation on
speech than was necessary to ensure registration for the national
defense. Passive enforcement not only did not subject "vocal"
nonregistrants to any special burden,
supra, at
470 U. S.
609-610, but also was intended to be only an interim
enforcement system. Although Selective Service was engaged in
developing an active enforcement program when it investigated
petitioner, it had by then found no practicable way of obtaining
the names and current addresses of likely nonregistrants. [
Footnote 14] Eventually, it obtained
them by matching state driver's license records with Social
Security files. It took some time, however, to obtain the necessary
authorizations and to set up this system. Passive enforcement was
the only effective interim solution available to carry out the
Government's compelling interest.
We think it important to note, as a final matter, how far the
implications of petitioner's First Amendment argument would extend.
Strictly speaking, his argument does not concern
Page 470 U. S. 614
passive enforcement but self-reporting. The concerns he
identifies would apply to all nonregistrants who report themselves,
even if the Selective Service engaged only in active enforcement.
For example, a nonregistrant who wrote a letter informing Selective
Service of his failure to register could, when prosecuted under an
active system, claim that the Selective Service was prosecuting him
only because of his "protest." Just as in this case, he could have
some justification for believing that his letter had focused
inquiry upon him. Prosecution in either context would equally
"burden" his exercise of First Amendment rights. Under the
petitioner's view, then, the Government could not constitutionally
prosecute a self-reporter -- even in an active enforcement system
-- unless perhaps it could prove that it would have prosecuted him
without his letter. On principle, such a view would allow any
criminal to obtain immunity from prosecution simply by reporting
himself and claiming that he did so in order to "protest" the law.
The First Amendment confers no such immunity from prosecution.
V
We conclude that the Government's passive enforcement system,
together with its "beg" policy, violated neither the First nor
Fifth Amendment. Accordingly, we affirm the judgment of the Court
of Appeals.
It is so ordered.
[
Footnote 1]
Section 3 provides in pertinent part:
"[I]t shall be the duty of every male citizen of the United
States, and every other male person residing in the United States,
who, on the day or days fixed for the first or any subsequent
registration, is between the ages of eighteen and twenty-six, to
present himself for and submit to registration at such time or
times and place or places, and in such manner, as shall be
determined by proclamation of the President and by rules and
regulations prescribed hereunder."
The United States requires only that young men register for
military service, while most other major countries of the world
require actual service. The International Institute for Strategic
Studies, The Military Balance 1983-1984 (1983);
see Selective
Service System v. Minnesota Public Service Research Group,
468 U. S. 841,
468 U. S. 860,
n. 2 (1984) (POWELL, J., concurring in part and concurring in
judgment).
[
Footnote 2]
On August 4, 1980, for example, petitioner wrote to both the
President and the Selective Service System. In his letter to the
President, he stated:
"I decided to obey my conscience, rather than your law. I did
not register for your draft. I will never register for your draft.
Nor will I ever cooperate with yours or any other military system,
despite the laws I might break or the consequences which may befall
me."
App. 714. In his letter to the Selective Service System, he
similarly stated:
"I have not registered for the draft. I plan never to register.
I realize the possible consequences of my action, and I accept
them."
Id. at 716.
Six months later, petitioner sent a second letter to Selective
Service:
"Last August, I wrote to inform you of my intention not to
register for the draft. Well, I did not register, and still plan
never to do so, but thus far I have received no reply to my letter,
much less any news about your much-threatened prosecutions."
"I must interpret your silence as meaning that you are too busy
or disorganized to respond to letters or keep track of us draft-age
youth. So I will keep you posted of my whereabouts."
Id. at 710. He also stated that, although he would "be
traveling the nation . . . encouraging resistance and spreading the
word about peace and disarmament," he could be reached at his home
address in Pasadena, California.
Id. at 710-711.
[
Footnote 3]
The record indicates that only 13 of the 286 young men Selective
Service referred to the Department of Justice had been indicted at
the time the District Court considered this case. As of March 31,
1984, three more men had been indicted. The approximately 270 not
indicted either registered, were found not to be subject to
registration requirements, could not be found, or were under
continuing investigation. The record does not indicate how many
fell into each category.
[
Footnote 4]
On July 28, 1982, Selective Service stated that 8,365,000 young
men had registered out of the estimated 9,039,000 who were required
to do so. Selective Service Prosecutions: Oversight Hearing before
the Subcommittee on Courts, Civil Liberties, and the Administration
of Justice of the House Committee on the Judiciary, 97th Cong., 2d
Sess., 10 (1982). This amounted to a nonregistration rate of
approximately 7.5 percent.
[
Footnote 5]
The District Court also decided various statutory and regulatory
claims. In particular, it held that Presidential Proclamation No.
4771 had been improperly promulgated, and dismissed the indictment
on this ground as well.
549
F. Supp. 1376, 1391 (1982). The Court of Appeals for the Ninth
Circuit reversed this particular holding and affirmed the District
Court's rejection of the remaining regulatory claims. 710 F.2d
1385, 1388-1389 (1983). Only the constitutional claim is now at
issue.
We do not decide the issue the dissent sees as central to this
case: "whether Wayte has earned the right to discover Government
documents relevant to his claim of selective prosecution."
Post at
470 U. S.
614-615. Even if there were substance to this discovery
issue, it was neither raised in the petition for certiorari,
briefed on the merits, nor raised at oral argument. Wayte has
simply not asserted such a claim before this Court.
[
Footnote 6]
This term is misleading insofar as it suggests that all those
indicted had made public statements opposing registration. In some
cases, the only statement made by the nonregistrant prior to
indictment was his letter to the Government declaring his refusal
to register.
[
Footnote 7]
One Judge dissented on the ground that the passive enforcement
system represented a "deliberate policy . . . designed to punish
only those who had communicated their violation of the law to
others." 710 F.2d at 1389 (Schroeder, J., dissenting). Finding "an
enforcement procedure focusing solely upon vocal offenders . . .
inherently suspect,"
id. at 1390, she would have shifted
the burden of persuasion on discriminatory intent to the
Government.
[
Footnote 8]
Compare United States v. Eklund, 733 F.2d 1287 (CA8
1984) (en banc) (upholding criminal conviction under passive
enforcement scheme),
cert. pending, No. 83-1959,
with
United States v. Schmucker, 721 F.2d 1046 (CA6 1983) (ordering
hearing on selective prosecution claim),
cert. pending,
No. 83-2035.
[
Footnote 9]
Although the Fifth Amendment, unlike the Fourteenth, does not
contain an equal protection clause, it does contain an equal
protection component.
Bolling v. Sharpe, 347 U.
S. 497,
347 U. S. 499
(1954).
"[Our] approach to Fifth Amendment equal protection claims has .
. . been precisely the same as to equal protection claims under the
Fourteenth Amendment."
Weinberger v. Wiesenfeld, 420 U.
S. 636,
420 U. S. 638,
n. 2 (1975).
[
Footnote 10]
A showing of discriminatory intent is not necessary when the
equal protection claim is based on an overtly discriminatory
classification.
See Strauder v. West Virginia,
100 U. S. 303
(1880). No such claim is presented here, for petitioner cannot
argue that the passive policy discriminated on its face.
The dissent argues that Wayte made a nonfrivolous showing of all
three elements of a
prima facie case as established in the
context of grand jury selection.
Castaneda v. Partida,
430 U. S. 482,
430 U. S.
494-495 (1977). Neither the parties nor the courts
below, however, discussed the
prima facie case in these
terms. Rather, they used the phrase to refer to whether Wayte had
made a showing, which, if unrebutted, would directly establish
discriminatory effect and purpose. Even applying standards from the
grand jury selection context, however, we believe that Wayte has
failed to establish a
prima facie case. For example,
although the dissent describes the first element as merely whether
the individual "is a member of a recognizable, distinct class,"
post at
470 U. S. 626,
it is clear, for reasons we discuss
infra at this page and
470 U. S. 610,
that Wayte has not established the first element as actually
defined by
Castaneda: whether the individual is a member
of an "identifiable group" that is "a recognizable, distinct class,
singled out for different treatment under the laws, as written
or as applied." 430 U.S. at 494 (emphasis added). For these
same reasons, we believe Wayte has failed to establish the other
Castaneda elements, particularly the third. Furthermore,
even assuming that Wayte did make out this kind of
prima
facie case, the "beg" policy would rebut it.
The dissent also argues that
Yick Wo v. Hopkins,
118 U. S. 356
(1886), would have been decided differently under the approach we
take today.
Post at
470 U. S.
630-631. This misunderstanding stems from its belief
that "the Government intentionally discriminated in defining the
pool of potential prosecutees" in this case.
Post at
470 U. S. 630.
This premise, however, mistakes the facts. The prosecution pool
consisted of all reported nonregistrants, not just "vocal"
nonregistrants, and there is no evidence of Government intent to
prosecute individuals because of their exercise of First Amendment
rights.
[
Footnote 11]
Petitioner alleges that the passive enforcement policy violated
both his right to free speech and his right to petition. Because he
does not argue that it burdened each right differently, we view
these claims as essentially the same. Although the right to
petition and the right to free speech are separate guarantees, they
are related and generally subject to the same constitutional
analysis.
See NAACP v. Claiborne Hardware Co.,
458 U. S. 886,
458 U. S.
911-915 (1982).
[
Footnote 12]
As an initial matter, we note doubt that petitioner has
demonstrated injury to his First Amendment rights. The Government's
"beg" policy removed most, if not all, of any burden passive
enforcement placed on free expression. Because of this policy,
nonregistrants could protest registration and still avoid any
danger of prosecution. By simply registering after they had
reported themselves to the Selective Service, nonregistrants
satisfied their obligation, and could thereafter continue to
protest registration. No matter how strong their protest,
registration immunized them from prosecution. Strictly speaking,
then, the passive enforcement system penalized continued violation
of the Military Selective Service Act, not speech. The only right
it burdened was the asserted "right" not to register, a "right"
without foundation either in the Constitution or the history of our
country.
See Selective Draft Law Cases, 245 U.
S. 366 (1918).
[
Footnote 13]
Section 12(a) of the Military Selective Service Act, 62 Stat.
622, as amended, 50 U.S.C.App. § 462(a), provides that a criminal
nonregistrant must "evad[e] or refus[e]" to register. For
conviction, the courts have uniformly required the Government to
prove that the failure to register was knowing.
E.g., United
States v. Boucher, 509 F.2d 991 (CA8 1975);
United States
v. Rabb, 394 F.2d 230 (CA3 1968). Neither party contests this
requirement here.
[
Footnote 14]
Selective Service had tried to use Social Security records, but
found that the addresses there were hopelessly stale. And under the
law, 26 U.S.C. § 6103, it could gain no useful access to Internal
Revenue Service records -- the only other recognized federal source
of generally accurate information.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins,
dissenting.
The Court decides today that petitioner "has not shown that the
Government prosecuted him
because of his protest
activities," and it remands to permit his prosecution to go
forward. However interesting the question decided by the Court may
be, it is not necessary to the disposition of this case. Instead,
the issue this Court must grapple with is far less momentous but no
less deserving of thoughtful treatment. What it must decide is
whether Wayte has earned the
Page 470 U. S. 615
right to discover Government documents relevant to his claim of
selective prosecution.
The District Court ordered such discovery, the Government
refused to comply, and the District Court dismissed the indictment.
The Court of Appeals reversed on the grounds that Wayte had failed
to prevail on the merits of his selective prosecution claim, and
that the discovery order was improper. If Wayte is entitled to
obtain evidence currently in the Government's possession, the Court
cannot dismiss his claim on the basis of only the evidence now in
the record. To prevail here, then, all that Wayte needs to show is
that the District Court applied the correct legal standard, and did
not abuse its discretion in determining that he had made a
nonfrivolous showing of selective prosecution entitling him to
discovery.
There can be no doubt that Wayte has sustained his burden.
Therefore, his claim cannot properly be dismissed at this stage in
the litigation. I respectfully dissent from this Court's decision
to do so.
I
In order to understand the precise nature of the legal question
before this Court, it is important to review in some detail the
posture in which this case comes to us. In July, 1982, an
indictment filed in the District Court for the Central District of
California charged Wayte with knowingly and willfully failing to
register for the draft. In September, 1982, Wayte moved to have the
indictment dismissed on the ground of selective prosecution.
In support of his claim, he presented 10 exhibits: 7 internal
Justice Department memoranda discussing the mechanism for the
prosecution of individuals who failed to register for the draft, a
report by the United States General Accounting Office discussing
alternatives to the registration program, a statement by the
Director of Selective Service before the Subcommittee on Courts,
Civil Liberties and the Administration of Justice of the House
Judiciary Committee, and a
Page 470 U. S. 616
transcript of a meeting of the Department of Defense's Military
Manpower Task Force. According to Wayte, this evidence supported
his claim that the Government had designed a prosecutorial scheme
that purposefully discriminated against those who had chosen to
exercise their First Amendment right to oppose draft registration.
Wayte argued that he had demonstrated sufficient facts on his claim
of selective prosecution to be entitled to an evidentiary hearing
on that issue. In this regard, Wayte moved to discover a variety of
Government documents that he asserted were relevant to his
selective prosecution claim, and indicated his intention to
subpoena seven out-of-district witnesses, including Edwin Meese
III, the Counsellor to the President.
On September 30, 1982, the District Court found that the motion
to dismiss the indictment on the ground of selective prosecution
was "non-frivolous." The following day, it held a hearing in which
the parties presented their disagreements over Wayte's discovery
requests. The District Court granted some of Wayte's requests,
denied others, and ordered the Government to submit some documents
for
in camera inspection. At a hearing on October 5, the
District Court denied the Government's motion for reconsideration
of the discovery order and postponed ruling on the requested
subpoenas until after a preliminary evidentiary hearing on Wayte's
selective prosecution claim.
This hearing was held on October 7. Two witnesses testified:
David J. Kline, a Senior Legal Advisor at the Justice Department's
Criminal Division, and Richard Romero, an Assistant United States
Attorney in the Central District of California and the principal
prosecutor in Wayte's case. Kline's testimony dealt extensively
with the Justice Department's policies for prosecuting individuals
who violated the draft registration statute.
At a nonevidentiary hearing on October 15, the District Court
ruled that portions of three of the many documents that had been
submitted
in camera should be turned over to
Page 470 U. S. 617
the defense. The three documents in question had previously been
given to the defense in expurgated fashion. As to certain parts of
them, however, the District Court determined that the defense's
need for the still undisclosed materials outweighed the
Government's interest in nondisclosure. Specifically, the District
Court ordered disclosure of two sentences and one paragraph in one
letter, and one paragraph in each of two memoranda. The District
Court also indicated that some of the documents submitted for
in camera review had been redacted in a manner that made
them incomprehensible.
The Government was less than eager to comply with the District
Court's order of October 15. The Government's response to that
order indicated, in a paragraph that was later stricken at the
Government's request following an admonishment by the District
Court:
"It is obvious that the Court's appetite for more and more
irrelevant disclosures of sensitive information has become
insatiable. It is also apparent that, with each new disclosure,
made pursuant to near-impossible deadlines, the court feels
compelled to impugn the motives of the Government."
Record, Doc. No. 95, p. 3. The Government invoked a
"deliberative processes" privilege for documents that it had turned
over to the District Court for
in camera review. It also
refused to allow Meese's testimony on the ground that all
information on which he could testify was privileged.
The saga continued on October 20, when the District Court
ordered the production, for
in camera review, of
unredacted versions of documents that had previously been submitted
in redacted form. The Government eventually complied with that
order.
On October 29, the District Court ordered that certain portions
of those documents be turned over to the defense. The list of
documents was kept under seal. The District Court
Page 470 U. S. 618
applied the standard for determining whether an assertion of
executive privilege is valid announced in
United States v.
Nixon, 418 U. S. 683,
418 U. S. 711
(1974). The court determined:
"Applying the balancing test from
Nixon to the facts,
this court finds that the scales of justice tip decidedly in favor
of the defendant's right to review several of the documents which
this court has inspected
in camera. The Government's
generalized assertion of a 'deliberative process' executive
privilege must yield to the defendant's specific need for for
documents, which this court has determined must be released to Mr.
Wayte."
Record, Doc. No. 119, p. 5.
In the same order, the District Court also granted Wayte's
request that Meese be ordered to testify at an evidentiary hearing.
In this connection, the District Court made a series of findings:
(1) that the Government's normal prosecutorial policies were not
being followed for the prosecution of nonregistrants; (2) that
Meese served as a nexus between the White House and the Justice
Department on this issue; and (3) that Meese had been directly
involved in decisions involving the Government's prosecutorial
policies toward nonregistrants. It therefore determined that his
testimony was relevant to Wayte's claim.
The Government refused to comply with the District Court's order
of October 29. It explained:
"[I]t is our position that important governmental interests are
at stake in connection with our claim of privilege, which we
sincerely believe have not been shown to be overridden in this
case. Nor can we concur in the Court's conclusion that a sufficient
basis has been established to justify requiring the appearance and
testimony of an official as senior as the Counsellor to the
President. Contrary to the Court's finding in its Order of October
29, 1982, we believe that the record amply demonstrates that
decisions relating to the prosecution of nonregistrants were made
within the Department of Justice, and
Page 470 U. S. 619
that there is, therefore, no nexus between the White House and
the selection of the defendant for prosecution."
Record, Doc. No. 123, p. 3.
The District Court held its last hearing on this matter on
November 15. In an order and opinion filed that day, the District
Court dismissed Wayte's indictment.
549 F.
Supp. 1376 (1982). It found, first, that Wayte had alleged
sufficient facts on his selective prosecution claim "to take the
question beyond the frivolous stage,"
id. at 1379 (citing
United States v. Erne, 576 F.2d 212, 216 (CA9 1978)), and
thus had earned the right to discover relevant Government
documents. Second, it found that the Government had refused to
comply with the discovery order of October 29, and that it was the
Government's position that
"the only way to achieve appellate review of the Government's
assertion of executive privilege is for the court to dismiss the
indictment against the defendant."
549 F.Supp. at 1378-1379;
see Alderman v. United
States, 394 U. S. 165,
394 U. S. 181
(1969) ("[D]isclosure must be made even though attended by
potential danger to the reputation or safety of third parties or to
the national security -- unless the United States would prefer
dismissal of the case to disclosure of the information").
Having made these findings, the District Court turned to the
merits of Wayte's underlying claim. It found that Wayte had gone
beyond satisfying the standard for obtaining discovery, and that he
had in fact made out a
prima facie case of selective
prosecution. 549 F. Supp. at 1379-1380. As a result, the burden
shifted to the Government to prove that its policy was not based on
impermissible motives. The District Court found that the Government
had failed to rebut Wayte's
prima facie case.
Id.
at 1382-1385.
On appeal to the Court of Appeals for the Ninth Circuit, the
Government conceded that
"[t]he event that triggered dismissal for selective prosecution
was the government's declination, following the surrender of
Presidential documents to the court, to comply with orders
directing that certain of
Page 470 U. S. 620
these documents be furnished to the defense and that
Presidential Counsellor Edwin Meese be made available as a
witness."
Brief for United States in No. 82-1699 (CA9), p. 42. The
Government gave two reasons for its refusal to comply with the
District Court's order. First, it maintained that Wayte "did not
even meet the colorable basis test so as to trigger a discovery
obligation on the part of the government."
Id. at 44.
Second, it argued that Wayte had not shown that he had a
particularized need for the privileged materials that was
sufficiently substantial to outweigh the asserted need to preserve
confidentiality.
Id. at 45. The Government acknowledged
that the District Court had applied the correct standard for
evaluating claims of privilege -- that set out in
United States
v. Nixon, supra. The Government, however, disagreed with the
manner in which the District Court had weighed the relevant
factors.
In his brief to the Ninth Circuit, Wayte argued that one
independent basis for the dismissal of the indictment was that the
Government had refused to comply with the District Court's lawful
discovery orders. Brief for Appellee in No. 82-1699 (CA9), pp.
20-31. Wayte's brief clearly stated that "the indictment could
properly have been dismissed on that basis alone."
Id. at
20. In this connection, Wayte argued that he had alleged sufficient
facts to take his selective prosecution claim beyond the frivolous
stage, that the District Court's orders concerned materials that
were relevant to that claim, that the propriety of discovery orders
must be reviewed under an abuse of discretion standard, that the
District Court had not abused its discretion in ordering discovery
in this case, and that the District Court properly rejected the
Government's claim of privilege.
A divided panel of the Court of Appeals for the Ninth Circuit
reversed the dismissal of Wayte's indictment. 710 F.2d 1385 (1983).
Writing for the majority, Judge Wright focused primarily on the
merits of the underlying selective prosecution claim. He concluded
that, on the record before the
Page 470 U. S. 621
court, Wayte had failed to show that he was selected for
prosecution "because of his exercise of his constitutional rights."
Id. at 1387.
The Court of Appeals dealt with the Government's failure to
comply with the discovery order in only one brief paragraph:
"Because Wayte made no initial showing of selective prosecution,
he was not entitled to discovery of government documents. That
access to the documents might have been helpful to him does not, in
itself, entitle him to discovery. The government's refusal to
comply with the discovery orders was justified."
Id. at 1388 (citations omitted).
In an unsuccessful petition for rehearing, Wayte argued that the
majority had overlooked the standard of review applicable to trial
court discovery orders. Pet. for Rehearing and Suggestion of
Appropriateness of Rehearing en Banc in No. 82-1699 (CA9), pp.
8-10. Wayte renewed his selective prosecution arguments before this
Court.
See Pet. for Cert. 9-12; Tr. of Oral Arg. 9-11.
II
A
This streamlined account of the stormy proceedings below makes
clear that, from a legal perspective, this case is first and
foremost a discovery dispute. If the District Court correctly
resolved the discovery issue, Wayte was entitled to additional
evidence. And if he was entitled to additional evidence, the Court
cannot reject his claim on the merits, on the basis of only the
evidence to which Wayte had access at the time of the District
Court proceedings. [
Footnote
2/1]
Page 470 U. S. 622
The question of whether the discovery order was appropriate
breaks down into three narrower inquiries. The first is whether
Wayte made a sufficient showing of selective pros
Page 470 U. S. 623
ecution to be entitled to any discovery. The second is whether
the documents and testimony ordered released were relevant to
Wayte's selective prosecution claim, that is, whether the scope of
discovery was appropriate. The third is whether Wayte's need for
the materials outweighed the Government's assertion of executive
privilege. The Court of Appeals dealt with only the first of these
questions, finding that an adequate showing had not been made.
Thus, if that decision is incorrect, the proper disposition of this
case is a remand to the Court of Appeals for a determination of the
second and third questions. Certainly this Court is in no position
to perform those inquiries, as the documents at stake, which were
submitted to the District Court for
in camera review, are
not before us.
B
A two-part inquiry leads to the resolution of the narrow
discovery question before this Court: (1) what showing must a
defendant make to obtain discovery on a claim of selective
prosecution, and (2) under what standard does an appellate court
review a district court's finding that the required showing was
made.
The Courts of Appeals have adopted a standard under which a
defendant establishes his right to discovery if he can show that he
has a "colorable basis" for a selective prosecution claim.
See,
e.g., United States v. Murdock, 548 F.2d 599, 600 (CA5 1977);
United States v. Cammisano, 546 F.2d 238, 241 (CA8 1976);
United States v. Berrios, 501 F.2d 1207, 1211 (CA2 1974);
United States v. Berrigan, 482 F.2d 171, 181 (CA3 1 973).
To make this showing, a defendant must allege sufficient facts in
support of his selective prosecution claim "to take the question
past the frivolous state."
United States v. Hazel, 696
F.2d 473,
Page 470 U. S. 624
475 (CA6 1983);
United States v. Erne, 576 F.2d at 216.
In general, a defendant must present "some evidence tending to show
the existence of the essential elements of the defense."
United
States v. Berrios, supra, at 1211.
This standard, which the District Court applied in this case, is
consistent with our exhortation that
"[t]he need to develop all relevant facts in the adversary
system is both fundamental and comprehensive. The ends of criminal
justice would be defeated if judgments were to be founded on a
partial or speculative presentation of the facts."
United States v. Nixon, 418 U.S. at
418 U. S. 709.
It also recognizes that most of the relevant proof in selective
prosecution cases will normally be in the Government's hands.
Cf. Poller v. Columbia Broadcasting System, Inc.,
368 U. S. 464,
368 U. S. 473
(1962). At the same time, the standard adequately protects the
Government from attempts by the defense to seek discovery as a
means of harassment or of delay.
See United States v. Murdock,
supra, at 600.
With respect to the second determination, which concerns the
appropriate scope of review, there is no doubt that trial judges
should enjoy great deference in discovery matters. District court
decisions on discovery are therefore not subject to plenary review
on appeal, but are instead reviewed under an abuse of discretion
standard. As we stated in
United States v. Nixon:
"Enforcement of a pretrial subpoena
duces tecum must
necessarily be committed to the sound discretion of the trial
court, since the necessity for the subpoena most often turns upon a
determination of factual issues. Without a determination of
arbitrariness or that the trial court finding was without record
support, an appellate court will not ordinarily disturb a finding
that the applicant for a subpoena complied with [Federal Rule of
Criminal Procedure] 17(c)."
418 U.S. at
418 U. S. 702.
The abuse of discretion standard acknowledges that appellate courts
in general, and this Court in particular, should not
Page 470 U. S. 625
expend their limited resources making determinations that can
profitably be made only at the trial level.
Cf. Anderson v.
Bessemer City, ante at
470 U. S.
573-576;
Florida v. Rodriguez, 469 U. S.
1,
469 U. S. 12
(1984) (STEVENS, J., dissenting).
The Court of Appeals below, however, did not even mention the
appropriate standard of review, much less explain how to apply it.
To the extent that its conclusory statements shed any light on the
basis for its decision, it appears that the Court of Appeals
performed a
de novo inquiry. Such review is especially
inappropriate in this case, given the painstaking care that the
District Court took in supervising the discovery process, and the
narrowly tailored scope of its rulings.
III
The proper starting point, then, is to consider whether the
District Court abused its discretion in determining that Wayte had
presented sufficient facts to support a nonfrivolous claim of
selective prosecution. I believe that the District Court acted well
within the scope of its discretion.
To evaluate the merit of Wayte's claim, I consider the elements
of a
prima facie case of selective prosecution and
ascertain whether Wayte has made a nonfrivolous showing as to the
existence of these elements. It is important to bear in mind at
this stage that Wayte need not have made out a full
prima
facie case in order to be entitled to discovery. A
prima
facie case, of course, is one that, if unrebutted, will lead
to a finding of selective prosecution. It shifts to the Government
the burden of rebutting the presumption of unconstitutional action.
See Rose v. Mitchell, 443 U. S. 545,
443 U. S. 565
(1979);
Duren v. Missouri, 439 U.
S. 357,
439 U. S. 368
(1979);
Castaneda v. Partida, 430 U.
S. 482,
430 U. S. 495
(1977);
Alexander v. Louisiana, 405 U.
S. 625,
405 U. S.
631-632 (1972). But a defendant need not meet this high
burden just to get discovery; the standard for discovery is merely
nonfrivolousness.
Moreover, Wayte need not convince this Court, as he had no need
to persuade the Court of Appeals, that it would have
Page 470 U. S. 626
made a finding of nonfrivolousness itself if it had sat as a
finder of fact. All that he needs to show is that the District
Court's finding of nonfrivolousness did not constitute an abuse of
discretion.
See United States v. Cammisano, 546 F.2d at
242;
United States v. Berrios, 501 F.2d at 1211-1212. I
turn, then, to consider whether a sufficient showing was made.
The Court correctly points out that Wayte's selective
prosecution claims must be judged according to ordinary equal
protection standards.
Ante at
470 U. S. 608;
see Oyler v. Boles, 368 U. S. 448,
368 U. S. 456
(1962);
Yick Wo v. Hopkins, 118 U.
S. 356,
118 U. S. 373
(1886). Wayte presents an equal protection challenge to the
"passive" enforcement system, under which Selective Service refers
to the Justice Department for further investigation and possible
prosecution
only the
"names of young men who fall into two categories: (1) those who
wrote to Selective Service and said that they refused to register
and (2) those whose neighbors and others reported them as persons
who refused to register."
App. 239. Wayte argues that the scheme purposefully singled out
these individuals as a result of their exercise of First Amendment
rights.
See Brief for Appellee in No. 82-1699 (CA9), pp.
3-8, 11-20.
To make out a
prima facie case, Wayte must show first
that he is a member of a recognizable, distinct class. Second, he
must show that a disproportionate number of this class was selected
for investigation and possible prosecution. Third, he must show
that this selection procedure was subject to abuse or was otherwise
not neutral.
Castaneda v. Partida, supra, at
430 U. S. 494.
The inquiry then is whether Wayte has presented sufficient evidence
as to each of the elements to show that the claim is not
frivolous.
Wayte has clearly established the first element of a
prima
facie case. The record demonstrates unequivocally that Wayte
is a member of a class of vocal opponents to the Government's draft
registration program. All members of that class exercised a First
Amendment right to speak freely and
Page 470 U. S. 627
to petition the Government for a redress of grievances, and
either reported themselves or were reported by others as having
failed to register for the draft.
To establish the second element, Wayte must show that the
"passive" enforcement policy identified for investigation and
possible prosecution a disproportionate number of vocal opponents
of draft registration. The record, as it stands given the
Government's refusal to comply with the District Court's discovery
order, does not contain a breakdown of how many of the
approximately 300 young men referred by Selective Service to the
Justice Department were "vocal." However, the record suggests that
responsible officials in the Justice Department were aware that the
vast majority of these individuals would be vocal opponents of
draft registration.
For example, a draft letter prepared by David J. Kline, the
Justice Department official responsible for overall enforcement of
the draft registration law, for Assistant Attorney General Jensen
to send to Herbert C. Puscheck, Selective Service's Associate
Director for plans and operations, stated:
"Unfortunately, we believe that, if the government initiates
prosecutions with only the present passive identification scheme in
place, there exists a real risk that the United States will lose at
least a few of those initial cases. There is a high probability
that persons who write to the Service and that persons who are
reported by others are vocal proponents of non-registration. Since
a passive identification scheme necessarily means that there will
be enormous numbers of non-registrants who are neither identified
nor prosecuted, a prosecution of a vocal nonregistrant will
undoubtedly lead to claims that the prosecution is brought in
retribution for the nonregistrant's exercise of his first amendment
rights.
Indeed, with the present univers[e] of hundreds of
thousands of nonregistrants, the chances that a quiet nonregistrant
will be prosecuted is probably about the
Page 470 U. S. 628
same as the chances that he will be struck by
lightning."
App. 290-291 (emphasis added; citation omitted). Similarly a
memorandum from Jensen to various United States Attorney's Offices
states:
"Selective Service's enforcement program is presently 'passive.'
Nonregistrants are brought to the Service's attention either when
they report themselves or when others report them. Consequently,
the first prosecutions are liable to consist of a large sample of
(1) persons who object on religious and moral grounds and (2)
persons who publicly refuse to register."
Id. at 361-362.
Perhaps, by itself, this evidence would not suffice to establish
the second element of a
prima facie case. However, it is
more than adequate to make nonfrivolous the claim that the
"passive" enforcement scheme identified for possible prosecution a
disproportionate number of vocal opponents of draft
registration.
As to the third element, the decision to implement the "passive"
enforcement system was certainly a decision susceptible to
abuse.
"This is indeed an exceptional area of national life where
conscientious opposition to government policy has been intertwined
with violations of the laws which implement the policy."
United States v. Falk, 479 F.2d 616, 625 (CA7 1973) (en
banc) (Fairchild, J., concurring). The correlation between vocal
opposition and violations of the law makes it relatively easy to
punish speech under the guise of enforcing the laws.
Here, the enforcement scheme was implemented with full knowledge
that its effects would be particularly harsh on vocal opponents of
the Government's policies.
See App. 290-291, 361-362
(quoted
supra, at
470 U. S. 627 and this page);
cf. 549 F. Supp.
at 1384 (Government "recognized the passive program had potentially
serious first amendment problems"). Such knowledge makes the scheme
directly vulnerable to the charge that its purpose was to punish
individuals for the exercise of their
Page 470 U. S. 629
First Amendment rights. This Court has recognized that
"[a]dherence to a particular policy or practice, 'with full
knowledge of the predictable effects of such adherence . . . is one
factor among others which may be considered by a court'"
in determining whether a decision was based on an impermissible
ground.
Columbus Board of Education v. Penick,
443 U. S. 449,
443 U. S. 465
(1979);
see also Personnel Administrator of Massachusetts v.
Feeney, 442 U. S. 256,
442 U. S. 279,
n. 25 (1979);
id. at
442 U. S. 283
(MARSHALL, J., dissenting) ("To discern the purposes underlying
facially neutral policies, this Court has . . . considered the . .
. foreseeability of any disproportionate impact");
United
States v. Steele, 461 F.2d 1148, 1152 (CA9 1972).
Thus, Wayte has established the first and third elements of a
prima facie case, and has presented a colorable claim as
to the second. [
Footnote 2/2] As a
result, there can thus be no doubt that the District Court did not
abuse its discretion when it found that Wayte's equal protection
claim was not frivolous.
The Court, of course, has not viewed this case through the same
lens. Instead of focusing on the elements of a
prima facie
case, and on whether Wayte presented sufficient evidence as to the
existence of each of these elements to earn the right to discover
relevant information in the Government's possession, the Court
leaps over these two issues and proceeds directly to the merits of
the equal protection claim. The Court's analysis is flawed in two
respects. First, as I have shown, the Court ignores the simple fact
that, if Wayte is entitled to discovery, his claim cannot be
rejected on the merits for lack of evidence.
Second, and of equal importance, the Court errs in the manner in
which it analyzes the merits of the equal protection claim. It
simply focuses on the wrong problem when it states that "the
Government treated all reported nonregistrants similarly," and that
"those prosecuted in effect selected
Page 470 U. S. 630
themselves for prosecution by refusing to register after being
reported and warned by the Government."
Ante at
470 U. S. 610.
Those issues are irrelevant to the correct disposition of this
case.
The claim here is not that the Justice Department discriminated
among known violators of the draft registration law either in its
administration of the "beg" policy, which gave such individuals the
option of registering to avoid prosecution, or in prosecuting only
some reported nonregistrants. Instead, the claim is that the system
by which the Department defined the class of possible prosecutees
-- the "passive" enforcement system -- was designed to discriminate
against those who had exercised their First Amendment rights. Such
governmental action cannot stand if undertaken with discriminatory
intent. As this Court has clearly stated,
"for an agent of the State to pursue a course of action whose
objective is to penalize a person's reliance on his legal rights is
'patently unconstitutional.'"
Bordenkircher v. Hayes, 434 U.
S. 357,
434 U. S. 363
(1978);
see also United States v. Goodwin, 457 U.
S. 368,
457 U. S. 372
(1982). If the Government intentionally discriminated in defining
the pool of potential prosecutees, it cannot immunize itself from
liability merely by showing that it used permissible methods in
choosing whom to prosecute from this previously tainted pool.
Cf. Connecticut v. Teal, 457 U. S. 440,
457 U. S.
450-451 (1982).
Under the Court's flawed approach, there would have been no
equal protection violation in
Yick Wo v. Hopkins,
118 U. S. 356
(1886), this Court's seminal selective prosecution decision. In
Yick Wo, the Court reversed a conviction under a municipal
ordinance that prohibited the construction of wooden laundries
without a license. The Court held that such a conviction could not
stand because the municipal licensors had discriminatorily denied
licenses to individuals of Chinese origin. If the Court then had
focused only on the prosecutions themselves, as it does now, it
would have found no discrimination in the choice, among violators
of the ordinance,
Page 470 U. S. 631
of the individuals to be prosecuted. Indeed, all but one of
these violators were of Chinese origin. Instead, the Court properly
focused on the official action that led to those prosecutions. In
Yick Wo, that prior action was the discriminatory denial
of licenses, which affected the definition of the class from which
prosecutees were chosen. In this case, the referrals made by
Selective Service to the Justice Department for investigation and
possible prosecution played a similar role, and may also have been
discriminatory. It is to that issue that the Court should have
directed its attention.
I do not suggest that all prosecutions undertaken pursuant to
passive enforcement schemes warrant evidentiary hearings on the
question of selective prosecution. But where violations of the law
are so closely intertwined with political activity, where the
speech at issue is so unpalatable to the Government, and where the
discriminatory effect is conceded, the need for a hearing is
significant, and in no way opens the door to an onslaught of such
hearings in less compelling contexts. [
Footnote 2/3]
Here, I believe that Wayte has raised sufficient questions about
the Government's intentions to be entitled to obtain access to
evidence in the Government's possession. I therefore dissent from
the Court's outright dismissal of his equal protection claim.
[
Footnote 2/1]
The Court expressly refuses to consider the question whether
Wayte has earned the right to discover relevant Government
documents; it maintains that this claim was not properly asserted
here.
See ante at
470 U. S. 605, n. 5. That conclusion is quite
surprising. The grant of certiorari in this case was limited to
"Question 1 presented by the petition," 467 U.S. 1214 (1984), which
focused on a conflict among the Federal Circuits. Wayte offered
only one reason for granting certiorari on that question:
"The
direct conflict between the Sixth and Ninth
Circuits on an issue concerning the exercise of First Amendment
rights particularly in view of the pending prosecutions in other
circuits raising the identical question, justifies the grant of
certiorari to review the judgment below."
Pet. for Cert. 12 (emphasis added). In the case to which Wayte
referred, the Sixth Circuit had held that the defendant was
"entitled to a hearing on his charge of selective prosecution."
United States v. Schmucker, 721 F.2d 1046, 1048 (1983).
Given that the lower courts have applied the same standard for
granting discovery orders and evidentiary hearings in this area,
the Sixth Circuit's holding also would entitle the defendant in
that case to discovery, and the Sixth Circuit's holding therefore
is in "direct conflict" with the Ninth Circuit's holding that Wayte
was not entitled to discovery.
Compare, e.g., United States v.
Berrios, 501 F.2d 1207, 1211 (CA2 1974),
with United
States v. Erne, 576 F.2d 212, 216 (CA9 1978). The discovery
question could not have been raised more clearly in the lower
courts and, contrary to the Court's suggestion, it is squarely
presented.
In addition, to the extent that the Court chooses to address the
merits of Wayte's selective prosecution claim,
ante at
470 U. S.
607-610, it must also decide the antecedent discovery
question. First, the merits of that constitutional claim, which
were not briefed before this Court, are certainly no better
presented than Wayte's discovery claim. Second, it makes little
sense to decide whether, at the time that the Government chose to
ignore the District Court's discovery order, Wayte had amassed
sufficient evidence to prove that the Government acted in a
discriminatory manner. The threshold question is, of course,
whether Wayte presented enough evidence of a constitutional
violation to be entitled to documents in the Government's
possession. If he was entitled to such discovery, the merits should
not be addressed until the record is complete.
Finally, it is curious that the Court here professes such
concern about whether the discovery issue was properly presented.
Indeed, the Court chooses to address Wayte's claim that the
prosecution scheme placed a direct burden on the exercise of First
Amendment rights.
Ante at
470 U. S.
610-614. That claim was not presented or ruled upon by
the District Court, was not presented or ruled upon on appeal, and
was not raised in Wayte's petition for certiorari. To the extent
that the Court discusses that claim on the ground that all of
Wayte's constitutional claims are interrelated, it must also
discuss the threshold constitutional claim: whether Wayte made a
sufficient showing of a constitutional violation to be entitled to
discovery.
[
Footnote 2/2]
None of the evidence presented by the Government to the District
Court places in any serious question the existence of these three
elements.
[
Footnote 2/3]
In my mind, Wayte's claim that the "passive" enforcement scheme
placed a direct burden on First Amendment freedoms,
ante
at
470 U. S.
607-610, should not be addressed at this stage in the
litigation. The materials that Wayte sought to discover, and that
he well may be entitled to discover, could be relevant to that
claim. The Court of Appeals should resolve the issue of access to
evidence on remand; the resolution of the merits of Wayte's claims
should await a final determination of that issue.