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Selective enforcement is the ability that executors of the law (such as police officers or administrative agencies, in some cases) have to select those against whom they want to enforce the law. The use of enforcement discretion in an arbitrary way is referred to as selective enforcement or selective prosecution.
Selective enforcement in practice
Historically, selective enforcement is recognized as a sign of tyranny, and an abuse of power, because it violates the Rule of Law, allowing those in authority to apply justice only when they choose. Aside from this being inherently unjust, this almost inevitably leads to favoritism and extortion, with those empowered to choose being able to help their friends, take bribes, and threaten those from whom they desire favors.
However, the converse can also be true and police officer discretion is sometimes warranted for minor offenses. For example, giving a verbal warning to a teenager can be effective in altering his behavior without having to resort to the courts, with the added benefit of reducing governmental legal costs. Another example is patrol officers parked on the side of a highway for speed enforcement. It may be impractical and cost prohibitive to ticket everyone who is exceeding the speed limit, so the officer should only take action on the most flagrant speeding offences and examples of reckless driving. It is not possible for a police officer not to use judgement at one level or another.
In the United States federal system, the prosecutor has wide latitude in determining when, who, how, and even whether to prosecute for apparent violations of federal criminal law. The prosecutor's broad discretion in such areas as initiating or forgoing prosecutions, selecting or recommending specific charges, and terminating prosecutions by accepting guilty pleas has been recognized on numerous occasions by the courts.
More recently this has become a topic of great discussion in the illegal immigration debate, fueled by the "Morton Memo". The memo was intended to channel limited resources into prioritized pursuit of cases involving criminals and felons. The memo has been broadly (and incorrectly) touted by the pro-immigration lobby as the suspension or waiver of active prosecution of non-criminal illegal aliens and the exclusive focus on criminal illegal aliens. However the memo clearly refutes the popularly held view that the memo gives ICE a mandate to selectively enforce immigration law:
- "As there is no right to the favorable exercise of discretion by the agency, nothing in this memorandum should be construed to prohibit the apprehension, detention, or removal of any alien unlawfully in the United States or to limit the legal authority of ICE or any of its personnel to enforce federal immigration law. Similarly, this memorandum, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter."
So, the net effect for any illegal aliens might, at best, be deferral of prosecution.
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