In the United States v. Batchelder case of 1978, the Supreme Court ruled that it was not a violation of due process for prosecutors to choose between two overlapping statutes with different penalties. The defendant, William Batchelder, had been convicted under a law prohibiting felons from receiving firearms shipped in interstate commerce and sentenced to five years imprisonment. However, he argued that another statute covering similar conduct only carried a maximum penalty of two years. He claimed his Fifth Amendment rights were violated because the prosecutor could arbitrarily decide which statute to charge him under - potentially subjecting him to harsher punishment without clear legislative guidance on sentencing differences between these laws. The court disagreed with this argument stating that when two statutes prohibit identical conduct but prescribe different penalties, there is no constitutional requirement for prosecutors to charge under one rather than other as long as both are validly enacted by Congress.

In the dissenting opinion for United States v. Batchelder, Justice Marshall argued that the majority's decision violated a fundamental principle of equal protection under law by allowing prosecutors to choose between two statutes carrying different penalties for the same conduct. He contended that this discretion was not only arbitrary but also discriminatory as it could be used unfairly against defendants based on their race or other characteristics. Furthermore, he disagreed with the majority's assertion that Congress intended to give such broad prosecutorial discretion when enacting these overlapping criminal statutes. Instead, he believed that Congress simply overlooked this redundancy and did not intend to create an unequal system of justice where similar offenders face drastically different punishments depending on which statute is applied.