Equal Protection 

Fundamentals of Criminal Law by Adam J. McKee

Equal protection refers to the principle that all persons must be treated alike, not only in statutory law but also in law enforcement. The government cannot make laws that treat one group of people differently from other groups without a rational reason.

Term of Art:  Arbitrary

In law, the term arbitrary means based on personal whims and prejudices and not on any sort of acceptable system or reason.

The equal protection clause prevents the state government from enacting criminal laws that discriminate in an unreasonable and unjustified manner. The Fifth Amendment due process clause prohibits the federal government from discrimination if the discrimination is so unjustifiable that it violates due process of law.  The general prohibition on governmental discrimination is not unconditional. It depends on the class of persons targeted for differential treatment. In general, court scrutiny is increased according to a sliding scale when the subject of discrimination is an arbitrary classification.

Criminal laws that have a rational basis for discrimination and that are supported by a legitimate and “compelling state interest” can, in fact, discriminate. Sentencing statutes that punish felons more harshly when they have a history of criminal behavior are supported by the legitimate government interests of deterrence and incapacitation. The legality of such a statute hinges on the basis of–the reason for–the discrimination.  A convict’s status as a convicted felon is rational and not arbitrary (as a status such as race would be). Although these statutes discriminate, they are constitutional under the equal protection clause because they are rational and pursuant to a compelling state interest.   

All Discrimination is Unjustified?

In our modern society, when we hear the work “discrimination,” we automatically bristle and racism and bigotry come to mind.  The idea of equal protection suggests that “all men are created equal” and that nobody deserves special treatment. Logically, this should include special or lenient treatment.  We get furious when we see a police officer speeding and not wearing a seatbelt, and we are disgusted when we find our that the mayor managed to sweep a DUI under the rug.

There are some categories of people under certain circumstances where society is happy to ignore special treatment, and we even demand it.

Consider the juvenile justice system and the treatment of minors who do things that would be criminal if an adult did them.  We fully expect the system to treat the child differently than it would an adult. Even the underlying philosophy is different:  Society expect adults to be punished (retribution), but we expect that children will be helped (rehabilitation).

The idea laws that protect “special victims” are another example of politically correct unequal treatment.  Hate crimes are another example. It is important to realize that the Court’s interpretations of the equal protection clause is highly subjective, and are heavily influenced by the social norms of the day.  Always keep in mind that the law is a dynamic process and not a static one. Criminal justice professionals must make learning the law a career-long pursuit because the law is constantly evolving and changing.

What are some major changes that have happened in the law over the past twenty years that relate to equal protection?  Which branch of government do you think is most instrumental in making these changes?

References and Further Reading

Equal Protection.” West’s Encyclopedia of American Law.

Equal Protection of the Law.” Governments of the World: A Global Guide to Citizens’ Rights and Responsibilities.

Modification History

File Created:  07/12/2018

Last Modified:  09/05/2023

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

Open Education Resource--Quality Master Source License


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