Bad Faith Prosecution

42 Pages Posted: 24 Mar 2022

See all articles by Ann Woolhandler

Ann Woolhandler

University of Virginia School of Law

Jonathan Remy Nash

Emory University School of Law

Michael G. Collins

University of Virginia School of Law

Date Written: March 22, 2022

Abstract

In our increasingly polarized society, claims that prosecutions are politically motivated, racially motivated, or just plain arbitrary are more common than ever. The advent of “progressive” prosecutors will no doubt increase claims of bad faith prosecution. The Supreme Court has required relatively high standards for claims of race- or speech-motivated prosecution. Many have condemned the standards used by the Court as unduly limiting bad faith prosecution claims, and as inconsistent with ordinary standards for proving cases of unconstitutional motivation. In this article we address these criticisms and suggest that current standards may provide an appropriate middle ground between the perils of standards that are too lax or too stringent for bad faith prosecution claims. We also address other arguable inconsistencies between the standards for bad faith prosecutions claims and those for related areas, and offer resolutions. Finally, we show how the rise of progressive prosecutors may make proof of bad faith prosecutions easier.

Keywords: bad faith, prosecution, unconstitutional motivation, racial motivation, speech retaliation, malicious prosecution, progressive prosecutors, constitutional law, criminal law

Suggested Citation

Woolhandler, Ann and Nash, Jonathan and Collins, Michael G., Bad Faith Prosecution (March 22, 2022). 109 Va. L. Rev. (2023 Forthcoming) , Virginia Public Law and Legal Theory Research Paper No. 2022-20, Emory Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=4064071

Ann Woolhandler (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Jonathan Nash

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

Michael G. Collins

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-243-2385 (Phone)

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