Cite as: 517 U. S. 456 (1996)
Opinion of the Court
In this case we consider what evidence constitutes "some evidence tending to show the existence" of the discriminatory effect element. The Court of Appeals held that a defendant may establish a colorable basis for discriminatory effect without evidence that the Government has failed to prosecute others who are similarly situated to the defendant. 48 F. 3d, at 1516. We think it was mistaken in this view. The vast majority of the Courts of Appeals require the defendant to produce some evidence that similarly situated defendants of other races could have been prosecuted, but were not, and this requirement is consistent with our equal protection case law. United States v. Parham, 16 F. 3d 844, 846- 847 (CA8 1994); United States v. Fares, 978 F. 2d 52, 59-60 (CA2 1992); United States v. Peete, 919 F. 2d 1168, 1176 (CA6 1990); C. E. Carlson, Inc. v. SEC, 859 F. 2d 1429, 1437-1438 (CA10 1988); United States v. Greenwood, 796 F. 2d 49, 52-53 (CA4 1986); United States v. Mitchell, 778 F. 2d 1271, 1277 (CA7 1985). As the three-judge panel explained, " '[s]elective prosecution' implies that a selection has taken place." 21 F. 3d, at 1436.3 The Court of Appeals reached its decision in part because it started "with the presumption that people of all races commit all types of crimes—not with the premise that any type of crime is the exclusive province of any particular racial or ethnic group." 48 F. 3d, at 1516-1517. It cited no authority for this proposition, which seems contradicted by the most recent statistics of the United States Sentencing Commission. Those statistics show: More than 90% of the persons sentenced in 1994 for crack cocaine trafficking were black, United States Sentencing Comm'n, 1994 Annual Report 107 (Table 45); 93.4% of convicted LSD dealers were white, ibid.; and 91% of those convicted for pornography or prostitution were white, id., at 41 (Table 13). Presumptions
3 We reserve the question whether a defendant must satisfy the similarly situated requirement in a case "involving direct admissions by [prosecutors] of discriminatory purpose." Brief for United States 15.
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