UNITED STATES v. BASS

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862 OCTOBER TERM, 2001
Per Curiam
UNITED STATES v. BASS
on petition for writ of certiorari to the united
states court of appeals for the sixth circuit
No. 01–1471. Decided June 28, 2002
Claiming that the United States filed a notice of intent to seek the death
penalty in respondent’s capital murder case because of his race, respond-
ent moved to dismiss the notice and, in the alternative, for discovery of
information relating to the Government’s capital charging practices.
The District Court granted his discovery motion and dismissed the no-
tice after the Government said that it would not comply with the discov-
ery order. The Sixth Circuit affirmed.
Held: The Sixth Circuit’s decision is contrary to United States v. Arm-
strong, 517 U. S. 456, 465, in which this Court held that a defendant
seeking discovery on a selective prosecution claim must show some evi-
dence of both discriminatory effect and discriminatory intent. As to
evidence of discriminatory effect, a defendant must make a credible
showing that similarly situated individuals of a different race were not
prosecuted. Id., at 465, 470. The Sixth Circuit concluded that re-
spondent had made such a showing based on nationwide statistics dem-
onstrating that the Government charges blacks with a death-eligible
offense more than twice as often as it charges whites and that it enters
into plea bargains more frequently with whites than with blacks. Even
assuming that a nationwide showing can satisfy the Armstrong require-
ment, raw statistics regarding overall charges say nothing about
charges brought against similarly situated defendants. And the plea
bargain statistics are even less relevant, since respondent declined the
plea bargain offered him.
Certiorari granted; 266 F. 3d 532, reversed.
Per Curiam.
A federal grand jury sitting in the Eastern District of
Michigan returned a second superseding indictment charging
respondent with, inter alia, the intentional firearm killings
of two individuals. The United States filed a notice of intent
to seek the death penalty. Respondent, who is black, al-
leged that the Government had determined to seek the death
penalty against him because of his race. He moved to dis-

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863 Cite as: 536 U. S. 862 (2002)
Per Curiam
miss the death penalty notice and, in the alternative, for dis-
covery of information relating to the Government’s capital
charging practices. The District Court granted the motion
for discovery, and after the Government informed the court
that it would not comply with the discovery order, the court
dismissed the death penalty notice. A divided panel of the
United States Court of Appeals for the Sixth Circuit af-
firmed the District Court’s discovery order. 266 F. 3d 532
(2001). We grant the petition for a writ of certiorari and
now summarily reverse.
In United States v. Armstrong, 517 U. S. 456, 465 (1996),
we held that a defendant who seeks discovery on a claim
of selective prosecution must show some evidence of both
discriminatory effect and discriminatory intent. We need
go no further in the present case than consideration of the
evidence supporting discriminatory effect. As to that,
Armstrong says that the defendant must make a “credible
showing” that “similarly situated individuals of a different
race were not prosecuted.” Id., at 465, 470. The Sixth Cir-
cuit concluded that respondent had made such a showing
based on nationwide statistics demonstrating that “[t]he
United States charges blacks with a death-eligible offense
more than twice as often as it charges whites” and that the
United States enters into plea bargains more frequently with
whites than it does with blacks. 266 F. 3d, at 538–539 (citing
U. S. Dept. of Justice, The Federal Death Penalty System: A
Statistical Survey (1988–2000), p. 2 (Sept. 12, 2000)).* Even
assuming that the Armstrong requirement can be satisfied
*In January 1995, the Department of Justice (DOJ) instituted a policy,
known as the death penalty protocol, that required the Attorney General
to make the decision whether to seek the death penalty once a defendant
had been charged with a capital-eligible offense. See Pet. for Cert. 3 (cit-
ing DOJ, United States Attorneys’ Manual § 9–10.010 et seq. (Sept. 1997)).
The charging decision continued to be made by one of the 93 United States
Attorneys throughout the country, but the protocol required that the
United States Attorneys submit for review all cases in which they had
charged a defendant with a capital-eligible offense. Ibid.

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864 UNITED STATES v. BASS
Per Curiam
by a nationwide showing (as opposed to a showing regard-
ing the record of the decisionmakers in respondent’s case),
raw statistics regarding overall charges say nothing about
charges brought against similarly situated defendants.
And the statistics regarding plea bargains are even less rele-
vant, since respondent was offered a plea bargain but de-
clined it. See Pet. for Cert. 16. Under Armstrong, there-
fore, because respondent failed to submit relevant evidence
that similarly situated persons were treated differently, he
was not entitled to discovery.
The Sixth Circuit’s decision is contrary to Armstrong and
threatens the “performance of a core executive constitutional
function.” Armstrong, supra, at 465. For that reason, we
reverse.
It is so ordered.

Job: 536ORD Take: NOT1 Date/Time: 12-19-03 19:44:25
Reporter’s Note
The next page is purposely numbered 901. The numbers between 864
and 901 were intentionally omitted, in order to make it possible to publish
the orders with permanent page numbers, thus making the official cita-
tions available upon publication of the preliminary prints of the United
States Reports.