United States v. Bass case analysis

United States v. Bass

The Supreme Court erred in its decision in United States v. Bass, 536 U.S. 862 (2002), in which it determined that the Sixth Circuit erred in granting defendant John Bass's motion for discovery in his selective prosecution claim. Defendant alleged that the United States' engaged in selective prosecution based on defendant's race. The Sixth Circuit granted defendant's motion for discovery because it determined that defendant made a threshold showing of selective prosecution by providing national statistics revealing that blacks were disproportionately charged with death-eligible crimes in federal prosecutions. The Supreme Court disagreed with the Sixth Circuit and summarily reversed its decision, based on the idea that national statistics did not speak to defendant and his position with other similarly-situated defendants. However, this reasoning ignores the ideals developed in other cases involving Equal Protection, most notably Brown v. Board of Education, which outlawed disparate treatment based on race, due to the impact that such treatment had on African-Americans, without looking at the impact of race discrimination on similarly-situated individuals. A pervasive pattern of discrimination can highlight selective prosecution in a way that the examination of individual prosecutions cannot, because pre-trial diversion makes it impossible for a defendant to know the details of the treatment of similarly-situated individuals. While national statistics regarding race and prosecution may not be sufficient to establish a case of selective prosecution, they are sufficient to establish a threshold showing of selective prosecution, which would give defendant access, via discovery, to the information needed to either prove or disprove his claim of selective prosecution.

The Sixth Circuit was merely affirming the decision of the trial court, and it is important to note that the trial court relied upon a statute to determine the importance of non-discrimination in the death penalty context. 18 U.S.C.S. 3593(f) required jurors to find that they would have imposed the death penalty, regardless of a defendant's race, in order to impose a death penalty. The district court suggest that for 18 U.S.C.S. 3593(f) to be meaningful, defendant's discovery request had to be granted; after all, jurors have no impact on who is prosecuted with what crime. Whether or not one agrees with the trial court's decision, it is clearly established that "the scope of discovery is within the sound discretion of the trial court." United States v. One Tract of Real Property, 95 F.3d 422, 427 (1996). Therefore, unless no reasonable person could agree with the trial court's decision, then the Supreme Court had no choice but to affirm the Sixth Circuit's decision affirming the trial court's decision.

The trial court could have easily found that Bass's evidence was sufficient to support his claims of selective prosecution. The Supreme Court cited its decision in United States v. Armstrong to support its decision. The Court stated that "a defendant who seeks discovery on a claim of selective prosecution must show some evidence of both discriminatory effect and discriminatory intent." United States v. Bass, 536 U.S. 862 (2002). The Court then found that defendant did not show a discriminatory effect, because "raw statistics regarding overall charges say nothing about charges brought against similarly situated defendants." Id. As a result, the Court determined that defendant "failed to submit relevant evidence that similarly situated persons were treated differently, [therefore] he was not entitled to discovery." Id. The reality is that in the United States, race is so intertwined with socio-economic status, that it is all but impossible to compare the vast majority of black criminal defendants with similarly situated individuals, because even poor whites do not have the same socio-economic circumstances as poor blacks.

The reasoning of the Sixth Circuit more strongly aligns to principles of Equal Protection than the decision of the Supreme Court.

While the Supreme Court decision made much of the freedom of prosecutorial discretion, the Sixth Circuit made it clear that invididual prosecutors "retain discretion in only three areas: whether to bring federal charges or defer to state prosecutions, whether to charge defendants with a capital-eligible offense, and whether to enter into a plea agreement." United States v. Bass, 266 F.3d 532 (2001). Furthermore, when the death penalty is sought, the prosecutor must submit a memorandum outlining the reason for seeking the death penalty, including all mitigating and aggravating circumstances. Id. Bass's discovery request would have gone to that underlying material, to help determine whether or not his allegations that his selection for death-penalty eligibility was somehow racially motivated.

Bass's evidence showed basic racial discrimination:

First, the Survey showed a significant difference between the percentage of white and black prisoners in the general federal prison population (white: fifty-seven percent; black: thirty-eight percent) and those charged by the United States with death-eligible crimes (white: twenty percent; black: forty-eight percent). Of the seventeen defendants charged with a death-eligible crime in the Eastern District of Michigan, none were white and fourteen were black (the other three were Hispanic).

Second, the Survey showed that the United States entered into a plea bargain with forty-eight percent of the white defendants against whom it sought the death penalty, compared with twenty-five percent of similarly situated black defendants. The United States entered into plea agreements with twenty-eight percent of Hispanics, and twenty-five percent of other non-white defendants.