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.

Michael G. Collins, Jonathan Remy Nash & Ann Woolhandler, Bad Faith Prosecution, 109 Virginia Law Review 835 (2023).