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.

Sixteen percent of death-eligible whites were charged with firearms murder, compared with thirty-two percent of death-eligible blacks. Fifteen percent of death-eligible whites were charged with racketeering murder, compared with twenty-two percent of death-eligible blacks. The Survey noted that firearms murder, racketeering murder, and continuing criminal enterprise murder (the three charges brought most frequently against death-eligible blacks) "can be charged in a wide array of circumstances, and [are] therefore more likely to be available as a charging option in a given case than more narrowly defined offenses such as kidnaping-related murder." However, death-eligible whites were most often charged with murder within a federal jurisdiction (twenty-one percent of all death-eligible whites). Id.
The reality is that Bass's evidence helped establish a prima facie case of racial discrimination, because it left no question about whether blacks were more likely than whites to be charged with death-eligible crimes. Having established this prima facie case, Bass was clearly entitled to discovery which would have revealed whether similarly situated non-black defendants were charged with death-eligible crimes at the same rates as black defendants. While it is impossible to know the answer, due to the fact that centuries of racial discrimination have made it impossible to assume that black and non-black defendants are similarly situated, the government should not be permitted to rely upon the historical impact of racial discrimination to justify the continued use of such discrimination.

Works Cited

18 U.S.C.S. 3593(f).

United States v. Bass, 266 F.3d 532 (2001).

United States v. Bass, 536 U.S. 862 (2002).

United States v. One Tract of Real Property, 95 F.3d 422 (1996).