compel the discovery of numerous documents from the
New Jersey State Police. Rather, such discovery is only
permitted “when there is a colorable claim that a police
agency has an officially sanctioned or de facto policy of
selective enforcement against minorities.” The validity of
statistical information claimed to show selective
enforcement of traffic laws by race depends on an accurate
identification of the group of persons who violate traffic
laws on trooper-patrolled roads. The court affirmed
defendants’ convictions, holding that the evidence
presented by defendants to support their selective
enforcement claim was “less satisfactory” than the
evidence presented in State v. Kennedy, 247 N.J. Super. 21
(App. Div. 1991), discussed below, which was deemed to
be only “marginally sufficient.”
In State v. Soto, 324 N.J. Super. 66 (Law Div. 1996),
statistical evidence of disproportionate traffic stops
against African-American motorists established a
discriminatory effect on African-Americans and a de facto
policy by the New Jersey State Police of targeting them
for investigation on the southern end of the New Jersey
Turnpike. This evidence established a pattern of selective
enforcement which violated the equal protection clause
and required suppression of all contraband and evidence
seized.
State v. Perry, 124 N.J. 128 (1991), held that the
prosecution in capital murder case did not engage in
impermissible selectivity by prosecuting defendant and
not his companion; both had been subjected to
polygraph tests in early stages of investigation, and
companion was under investigation up to point that
defendant confessed to crime.
State v. DiFrisco I, 118 N.J. 253 (1990). In order to
prevail on claim of discriminatory enforcement,
defendant must plead and prove intentional selectivity as
well as an unjustifiable basis for the discrimination.
Murder defendant failed to prove that an unjust
disproportionality, which allegedly involved the
nonprosecution of individual who hired him to commit
murder, invalidated his death sentence; defendant made
no showing of invidious discrimination but rather
premised his proportionality challenge on basis that
reason for nonprosecution proffered by State had no
support in the record.
State v. Kennedy, 247 N.J. Super. 21 (App. Div.
1991). In order to obtain discovery to support a claim of
selective prosecution, a defendant must demonstrate a
“colorable basis” supporting the allegation. When
statistics are used to establish such a claim, their validity
depends upon an accurate identification of the group or
population from which the selection was made.In McCleskey v. Kemp, 481 U.S. 279 (1987),
defendant’s statistical study failed to establish that in its
application Georgia’s capital punishment system
violated the Equal Protection Clause by unconstitution-
ally discriminating against blacks. Further, defendant
failed to prove that racial considerations were of any
moment in the determination of his particular case, a
requisite element. Because the nature of the capital
sentencing decision and its relationship to statistics is
fundamentally different from other cases where statistics
may be used as proof of intent to discriminate, general
statistical proof of discrimination is insufficient to
establish an equal protection violation in a particular
capital sentencing case. To establish state violation of
equal protection clause by adopting capital punishment
statute and allowing statute to remain in force despite
allegedly discriminatory application, defendant must
prove that legislature acted or maintained death penalty
because of anticipated racially discriminatory effect.Vasquez v. Hillery, 474 U.S. 254 (1986) held a
conviction is void under equal protection clause if
prosecutor deliberately charges defendant on account of
his race.Wayte v. United States, 470 U.S. 598 (1985). To
demonstrate “passive” selective enforcement requires
proof that the enforcement policy had a discriminatory
effect and was motivated by a discriminatory purpose.
The government did not violate petitioner’s equal
protection right since it similarly treated all
nonregistrants of the draft, including individuals who
publicly said they would not register, as well as those who
were reported by others but did not publicly protest.State v. Smith, 202 N.J. Super. 578 (Law Div. 1985).
Where defendant presented fifteen cases similar to his in
which the prosecutor had not sought the death penalty,
the court denied the prosecutor’s motion to quash
defendant’s subpoena for office guidelines on selection of
capital prosecutions to support selective prosecution
contention.