unjustifiable standard in Wisconsin

2023I, § 1. 16 No. 2021AP2001-CR ¶29 Moreover, the United States Supreme Court rejected a similar argument in Oyler, in which the Court concluded that selective enforcement of a law was “not in itself a federal constitutional violation” and noted that “[e]ven though the statistics … might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” Oyler, 368 U.S. at 456 .

1992Furthermore, we have stated that " 'the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation' so long as 'the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.' " Sears, 94 Wis. 2d at 134 (quoting from Olyer v. Boles, 368 U.S. 448, 456 (1962)).

2017It explained that the Batchelder court concluded that overlapping criminal statutes with different penalty schemes "do not violate constitutional 15 No. 2015AP791-CR principles unless the prosecutor selectively bases the charging decision upon an unjustifiable standard such as race, religion, or other arbitrary classification." Id. (citing Batchelder, 442 U.S. at 125 n.9). ¶45 Cissell reasoned that "[T]he fact that the defendant's conduct may be chargeable under either of two statutes does not make prosecution under one or the other statute improper per se . . . ." 127 Wis. 2d 216 .

2017It explained that the Batchelder court concluded that overlapping criminal statutes with different penalty schemes "do not violate constitutional principles unless the prosecutor selectively bases the charging decision upon an unjustifiable standard such as race, religion, or other arbitrary classification." Id. (citing Batchelder, 442 U.S. at 125 n.9). ¶ 45.

2025Cissell made clear “that overlapping criminal statutes with different penalty schemes do not violate constitutional principles unless the prosecutor selectively bases the charging decision upon an unjustifiable standard such as race, religion, or other arbitrary classification.” Id., 127 Wis. 2d at 215 ; see also id. at 222 .

2025Cissell made clear “that overlapping criminal statutes with different penalty schemes do not violate constitutional principles unless the prosecutor selectively bases the charging decision upon an unjustifiable standard such as race, religion, or other arbitrary classification.” Id., 127 Wis. 2d at 215 ; see also id. at 222 .

2015Rather, "it is the selective, persistent and intentionally discriminatory prosecution in the absence of a valid exercise of prosecutorial discretion that violates a defendant's equal protection rights and constitutes a defense to the charge." State v. Barman, 183 Wis. 2d 180, 187 , 515 N.W.2d 493 (Ct. App. 1994); see also State v. Annala, 168 Wis. 2d 453, 472 , 484 N.W.2d 138 (1992) (the decision to prosecute cannot be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification). ¶ 17.

2015Rather, "it is the selective, persistent and intentionally discriminatory prosecution in the absence of a valid exercise of prosecutorial discretion that violates a defendant's equal protection rights and constitutes a defense to the charge." State v. Barman, 183 Wis. 2d 180, 187 , 515 N.W.2d 493 (Ct. App. 1994); see also State v. Annala, 168 Wis. 2d 453, 472 , 484 N.W.2d 138 (1992) (the decision to prosecute cannot be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification). ¶ 17.

2007In Wisconsin, prosecutors enjoy "broad discretion in determining whether to charge an accused, which offenses to charge [and] under which statute to charge." State v. Krueger, 224 Wis. 2d 59, 67 , 588 N.W.2d 921 (1999) (footnotes omitted); see also State v. Lindsey, 203 Wis. 2d 423, 440 , 554 N.W.2d 215 (Ct. App. 1996). *261 ¶ 14.

2007In Wisconsin, prosecutors enjoy "broad discretion in determining whether to charge an accused, which offenses to charge [and] under which statute to charge." State v. Krueger, 224 Wis. 2d 59, 67 , 588 N.W.2d 921 (1999) (footnotes omitted); see also State v. Lindsey, 203 Wis. 2d 423, 440 , 554 N.W.2d 215 (Ct. App. 1996). *261 ¶ 14.

1992See also Unnamed Petitioners v. Connors, 136 Wis. 2d 118, 128 , 401 N.W.2d 782 (1987), overruled on other grounds by State v. Unnamed Defendant, 150 Wis. 2d 352, 358 , 441 N.W.2d 696 (1989), stating "[o]nly where there has been an aura of discrimination has this court indicated that checks were to be placed upon a prosecutor's charging decision." Annala does not suggest that the district attorney prosecuted him based upon meritless charges nor does he suggest that discrimination played a part in the prosecuting decision.

1992See also Unnamed Petitioners v. Connors, 136 Wis. 2d 118, 128 , 401 N.W.2d 782 (1987), overruled on other grounds by State v. Unnamed Defendant, 150 Wis. 2d 352, 358 , 441 N.W.2d 696 (1989), stating "[o]nly where there has been an aura of discrimination has this court indicated that checks were to be placed upon a prosecutor's charging decision." Annala does not suggest that the district attorney prosecuted him based upon meritless charges nor does he suggest that discrimination played a part in the prosecuting decision.

1992See also Unnamed Petitioners v. Connors, 136 Wis. 2d 118, 128 , 401 N.W.2d 782 (1987), overruled on other grounds by State v. Unnamed Defendant, 150 Wis. 2d 352, 358 , 441 N.W.2d 696 (1989), stating "[o]nly where there has been an aura of discrimination has this court indicated that checks were to be placed upon a prosecutor's charging decision." Annala does not suggest that the district attorney prosecuted him based upon meritless charges nor does he suggest that discrimination played a part in the prosecuting decision.

1992See also Unnamed Petitioners v. Connors, 136 Wis. 2d 118, 128 , 401 N.W.2d 782 (1987), overruled on other grounds by State v. Unnamed Defendant, 150 Wis. 2d 352, 358 , 441 N.W.2d 696 (1989), stating "[o]nly where there has been an aura of discrimination has this court indicated that checks were to be placed upon a prosecutor's charging decision." Annala does not suggest that the district attorney prosecuted him based upon meritless charges nor does he suggest that discrimination played a part in the prosecuting decision.

1980However, “the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation” so long as “the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” Oyler v. Boles, 368 U.S. 448, 456 (1962); B ordenkircher v. Hayes, supra at 364; State v. Johnson, supra at 174.