Michael Collins

Bad Faith Prosecution

CO-AUTHORS Jonathan Remy Nash
PUBLISHER
Virginia Law Review
DATE
2023
 

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.

Citation

Michael G. Collins, Jonathan Remy Nash & Ann Woolhandler, Bad Faith Prosecution, Virginia Law Review (2023).
 

More in This Category

  • In 2018, Congress rightly highlighted the problem of sex trafficking, which is a moral abomination and vicious scourge. It condemned sites like... MORE
  • Studies of federalism, especially in the United States, have mostly centered on state autonomy and the vertical relationship between the states and... MORE
  • Constitutional review is the power of a body, usually a court, to assess whether law or government action complies with the constitution. Originating... MORE