Bad Faith Prosecution

*Ann Woolhandler is the William Minor Lile Professor of Law, Armistead M. Dobie Research Professor of Law, University of Virginia School of Law. Jonathan Remy Nash is the Robert Howell Hall Professor of Law and Director of the Center on Federalism and Intersystemic Governance, Emory University School of Law. Michael G. Collins is the Joseph M. Hartfield Professor of Law, University of Virginia School of Law. They give their thanks to Jeffrey Bellin, Kay Levine, Rachel Harmon, and George Rutherglen for comments on prior drafts. Show More

There is no shortage of claims by parties that their prosecutions are politically motivated, racially motivated, or just plain arbitrary. In our increasingly polarized society, such claims are more common than ever. Donald Trump campaigned on promises to lock up Hillary Clinton for her handling of State Department-related emails, but he subsequently complained that the special counsel’s investigation of his campaign’s alleged contacts with Russian operatives was a politically motivated witch hunt. Kenneth Starr’s pursuit of investigations of Bill Clinton evoked similar arguments of political motivation.¹ 1.See, e.g., Angela J. Davis, The American Prosecutor: Independence, Power, and the Threat of Tyranny, 86 Iowa L. Rev. 393, 397 (2001) (using the Starr investigation as a point of departure for discussing prosecutorial abuses generally).Show More

The advent of “progressive” prosecutors will no doubt increase claims of bad faith prosecution, given their announcements of crimes they will and will not prosecute. Typically, they promise not to prosecute for lesser violations such as prostitution and drug possession.² 2.See Memorandum from Alvin L. Bragg, Jr., District Attorney, Cnty. of New York (Jan. 3, 2022), https://www.manhattanda.org/wp-content/uploads/2022/01/Day-One-Letter-Policies-1.03.2022.pdf [https://perma.cc/A336-ERT6] (announcing a policy to decline prosecution for, inter alia, marijuana misdemeanors, failing to pay a fare for public transportation, aggravated unlicensed operation, and prostitution); Jeffrey Bellin, Theories of Prosecution, 108 Calif. L. Rev. 1203, 1205–06 (2020) (providing examples of progressive prosecutors’ policies).Show More Although crime victims generally cannot complain that a perpetrator was not prosecuted, non-prosecution policies could strengthen claims of bad faith prosecution when prosecutors nevertheless prosecute some individuals for such delicts. In addition, candidates’ and officials’ statements that they intend to pursue certain individuals or groups may bolster claims of bad faith—as evidenced in Donald Trump’s arguments of political motivation for investigations by New York Attorney General Letitia James.³ 3.See Complaint at 6, 11, 29, Trump v. James, No. 21-cv-01352, 2022 WL 1718951 (N.D.N.Y. May 27, 2022) (seeking declaratory and injunctive relief inter alia under 42 U.S.C. § 1983 to limit the investigation, and relying on numerous statements by James as a candidate and as the New York Attorney General with respect to Trump); Trump v. James, 2022 WL 1718951, at *19–20 (dismissing the complaint based on Younger [v. Harris, 401 U.S. 37 (1971),] abstention); id. at *13 (stating that the plaintiffs had not established that the subpoena enforcement action was commenced for a retaliatory purpose). Within days of the complaint being dismissed, the plaintiffs appealed. See Trump v. James,No. 21-cv-01352, 2022 WL 1718951 (N.D.N.Y. May 27, 2022), appeal docketed,No. 22-1175 (2d Cir. May 31, 2022).Show More

Introduction

The varying cries of “foul” raise questions as to what should count as a politically motivated, racially motivated, or generally bad faith prosecution. The pitfalls of too easy or too difficult a standard for showing selective prosecution are evident. The investigation and prosecution of Paul Manafort might not have occurred absent his political visibility, but one may not necessarily think that his evasion of income taxes should therefore be excused.⁴ 4.See United States v. Manafort, 314 F. Supp. 3d 258, 272 (D.D.C. 2018) (refusing to suppress evidence from an allegedly overbroad search).Show More On the other hand, the fact that Yick Wo violated San Francisco’s ordinance against operating a laundry in a wooden building should not preclude a claim of discriminatory prosecution.⁵ 5.See Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886) (“[T]he facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion, that, whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities . . . with a mind so unequal and oppressive as to amount to a practical denial . . . of that equal protection of the laws . . . .”). But cf. Gabriel J. Chin, Unexplainable on Grounds of Race: Doubts About Yick Wo, 2008 Ill. L. Rev. 1359, 1369–70, 1373, 1376 (arguing that the decision was based on an invasion of property rights and was not about discriminatory prosecution, although later cases attributed that meaning to Yick Wo).Show More

The Supreme Court has required relatively high standards for claims of race- or speech-motivated prosecution. Under Armstrong v. United States, defendants in criminal cases must make a significant showing to obtain discovery as to discriminatory purpose and effect.⁶ 6.517 U.S. 456, 459–61, 463–65, 469–70 (1996).Show More And under Hartman v. Moore, plaintiffs seeking damages for a previous prosecution must allege the absence of probable cause in addition to bad motivation.⁷ 7.547 U.S. 250, 260–61 (2006). There are, of course, other ways for checking prosecutorial abuse such as elections and criminal process. The criminal process provides for possible determinations by grand juries and judges that probable cause is lacking, including by way of motions for acquittal and appeals for insufficiency of evidence.Show More

Many have condemned the standards used by the Supreme Court as unduly limiting bad faith prosecution claims⁸ 8.See, e.g., Alison Siegler & William Admussen, Discovering Racial Discrimination by the Police, 115 Nw. U. L. Rev. 987, 991 (2021) (criticizing difficulties of proof); John S. Clayton, Policing the Press: Retaliatory Arrests of Newsgatherers After Nieves v. Bartlett, 120 Colum. L. Rev. 2275, 2294–96 (2020); William J. Stuntz, Bordenkircher v. Hayes: Plea Bargaining and the Decline of the Rule of Law, in Criminal Procedure Stories 351, 369 (Carol S. Steiker ed., 2006); Richard H. McAdams, Race and Selective Prosecution: Discovering the Pitfalls of Armstrong, 73 Chi.-Kent L. Rev. 605, 618 (1998); Anne Bowen Poulin, Prosecutorial Discretion and Selective Prosecution: Enforcing Protection After United States v. Armstrong, 34 Am. Crim. L. Rev. 1071, 1073–74 (1997); Melissa L. Jampol, Goodbye to the Defense of Selective Prosecution, 87 J. Crim. L. & Criminology 932, 963 (1997).Show More and as inconsistent with ordinary standards for proving cases of unconstitutional motivation.⁹ 9.See Hartman v. Moore, 547 U.S. 250, 267 (2006) (Ginsburg, J., dissenting, joined by Breyer, J.); Kristin E. Kruse, Comment, Proving Discriminatory Intent in Selective Prosecution Challenges—An Alternative Approach to United States v. Armstrong, 58 SMU L. Rev. 1523, 1536 (2005) (recommending use of the employment discrimination framework from cases such as McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)); cf. Nieves v. Bartlett, 139 S. Ct. 1715, 1730 (2019) (Gorsuch, J., concurring in part and dissenting in part) (in a damages case alleging an arrest in retaliation for speech, arguing that a showing of lack of probable cause should not be required by the Court because a constitutional violation did not require such a showing); id. at 1737 (Sotomayor, J., dissenting) (arguing that the standards of Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), strike the proper balance between government interests and individual rights).Show More After all, if we look beyond the setting of criminal prosecutions, the Court has made it comparatively easier to vindicate rights in the face of constitutionally improper motivations. The Court in Mt. Healthy City School District Board of Education v. Doyle famously introduced a two-part test that requires, upon a showing by the plaintiff that a constitutionally improper motivation prompted his termination, the defendant to prove that the plaintiff’s termination would in any event have come to pass.¹⁰ 10.429 U.S. 274, 286–87 (1977).Show More

In other words, the Mt. Healthy test—which has spread beyond its original First Amendment setting—more readily allows a claimant to have her claim heard on the merits.¹¹ 11.Under the 1991 amendments to Title VII, a plaintiff can prevail on the liability phase if the plaintiff shows that a factor such as race was “a motivating factor for an employment practice”; the defendant has a burden of persuasion at the remedy phase if the defendant wishes to show that the adverse employment action would have occurred for an alternative reason. 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B) (2018); see also George Rutherglen, Employment Discrimination Law 53–54 (5th ed. 2021) (discussing aforementioned statutes). The Court, however, has eschewed burden shifting under certain other employment discrimination statutes, see id.; Gross v. FBL Fin. Servs., 557 U.S. 167, 178–79 (2009) (not applying burden shifting in a case under the Age Discrimination in Employment Act, 29 U.S.C. § 623(a) (2018)); id. at 179 (questioning the burden shifting approach generally). There may be some question, then, of whether the Court will continue to use the burden shifting framework where statutes do not specifically require it.Show More Why should a similar approach not hold sway in the setting of criminal prosecutions? We have a succinct answer to this question: the same approach should not apply because the setting of criminal prosecutions is fundamentally different.

To take up this argument, we first provide what we hope is a useful taxonomy of different types of claims of bad faith prosecution and the procedural settings in which they arise. We also describe the standards of proof in the different procedural settings. We then address criticisms that the standards of proof for bad faith prosecutions unduly deviate from the ordinary standards for proving unconstitutional motivation. We suggest that there are good reasons for requiring higher standards for showing bad faith prosecution as compared to other areas of alleged illicit motivation such as employment discrimination. There may be a presumption that criminal behavior, rather than bad faith, is the reason for prosecution of nontrivial violations.¹² 12.Cf. McAdams, supra note 8, at 653 (“Perhaps the more fundamental basis for hostility to selective prosecution claims is that they are presented by the guilty.”).Show More And despite the academic chorus reprobating prosecutorial discretion,¹³ 13.See, e.g., William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 511–12, 579–81 (2001) (arguing that prosecutorial discretion leads to over-criminalization but suggesting difficulties with eliminating such discretion); Stuntz, supra note 8, at 379 (arguing that prosecutorial discretion gives too much power to prosecutors, upsetting our system of checks and balances); Leslie B. Arffa, Note, Separation of Prosecutors, 128 Yale L.J. 1078, 1082 (2019) (noting that many see prosecutorial power as a central problem of the American criminal justice system); Hon. J. Harvie Wilkinson, In Defense of American Criminal Justice, 67 Vand. L. Rev. 1099, 1104–05, 1129–31 (2014) (describing critiques of prosecutorial discretion and citing authority).Show More greater judicial scrutiny of prosecutorial motives may be less helpful than safeguards within prosecutors’ offices—as Professor Barkow has argued.¹⁴ 14.See Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 Stan. L. Rev. 869, 908–09 (2009); Wilkinson, supra note 13, at 1132 (providing reasons for prosecutorial discretion); Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 379–81 (1973) (detailing reasons why judicial review of prosecutorial discretion would be undesirable); cf. Hannah Shaffer, Prosecutors, Race, and the Criminal Pipeline, U. Chi. L. Rev. (forthcoming 2023) (manuscript at 1–2) (suggesting that limiting prosecutorial discretion or blinding them to defendants’ race may inadvertently offset prosecutors’ giving less weight to the criminal records of Black defendants than white defendants in decisions affecting incarceration); id. (manuscript at 25–26, 37, 45, 54) (not attributing the lesser weight to records of Black defendants to progressive elected prosecutors, although finding that beliefs of individual prosecutors affected results). Our views thus could be characterized as a “checks and balances” approach, under which prosecutors’ offices adopt organizational structures that reduce incentives and opportunities to pursue constitutionally improper motives, rather than a “separation of powers” approach—that is, an approach that involves other branches of government—to regulate prosecutorial discretion. See Daniel Epps, Checks and Balances in the Criminal Law, 74 Vand. L. Rev. 1, 4–5 (2021) (contrasting checks and balances approaches with separation of powers approaches); id. at 73–74 (recommending separation of functions within prosecutors’ offices, as suggested by Barkow).Show More This does not mean that prosecutors’ offices should be immune from scrutiny, but it may suggest that Armstrong’s and Hartman’s hurdles to opening up judicial review of prosecutorial motives are appropriate.

In addition, we discuss the special difficulties of addressing political and racial motivations in the prosecutorial setting. While all deplore politically motivated prosecutions, there are difficulties in drawing lines between appropriate and inappropriate political influences on prosecutorial policies and decisions,¹⁵ 15.Cf. Dep’t of Com. v. New York, 139 S. Ct. 2551, 2573 (2019) (discussing that agency decisions are often informed by politics).Show More which in turn suggests high standards of proof. What is more, the Court assumes that disparate racial impact evidence may hold reduced probative value in the prosecution context, given the difficulties of determining the populations of those who might have been prosecuted but were not.¹⁶ 16.See Sandra G. Mayson, Bias In, Bias Out, 128 Yale L.J. 2218, 2257–58 (2019) (referring to studies suggesting some crimes may be committed disproportionately by different groups); Jennifer L. Skeem & Christopher T. Lowenkamp, Risk, Race and Recidivism: Predictive Bias and Disparate Impact, 54 Criminology 680, 690 (2016) (noting the debate as to whether differential participation or differential selection causes racial disparities in criminal justice).Show More

We also address other arguable inconsistencies between the standards for bad faith prosecution claims and related areas and offer resolutions. (1) In damages (Hartman) cases, the plaintiff must make a showing of no-probable-cause that is not required when a motion is brought in a criminal proceeding (Armstrong cases), but we conclude that the difference is warranted. (2) In retaliatory arrest claims, the Court in Nieves v. Bartlett allowed for an exception to the no-probable-cause showing for minor crimes that rarely evoke enforcement,¹⁷ 17.139 S. Ct. 1715, 1724, 1727 (2019).Show More but it is unclear whether such an exception exists for Hartman retaliatory prosecution claims. We suggest recognition of such an exception for bad faith prosecution claims. (3) Some lower federal courts have more easily allowed discovery with respect to claims in criminal cases of discriminatory “enforcement” as distinguished from Armstrong discriminatory “prosecution” motions.¹⁸ 18.See, e.g., United States v. Washington, 869 F.3d 193, 220–21 (3d Cir. 2017); infra note 70 (describing differing views in the circuit courts).Show More We suggest that the experience with broader discovery warrants continuing caution in loosening discovery for bad faith prosecution claims. (4) Lower federal courts have prescribed somewhat different elements for damages claims under various theories in the nature of malicious prosecution.¹⁹ 19.See Erin E. McMannon, The Demise of § 1983 Malicious Prosecution: Separating Tort Law from the Fourth Amendment, 94 Notre Dame L. Rev. 1479, 1485, 1493 (2019) (discussing varying standards and citing cases and secondary authority); Lyle Kossis, Malicious Prosecution Claims in Section 1983 Lawsuits, 99 Va. L. Rev. 1635, 1646–48 (2013) (discussing various standards).Show More For example, there is an issue of whether malicious prosecution claims brought under the Fourth Amendment require proof of subjective bad motivation.²⁰ 20.See, e.g., Hernandez-Cuevas v. Taylor, 723 F.3d 91, 99–101 (1st Cir. 2013) (alluding to differences among the circuits).Show More We suggest a way to make the standards more uniform across different types of claims.²¹ 21.Compare Kossis, supra note 19, at 1662–63 (favoring use of common law elements), with McMannon, supra note 19, at 1504 (disfavoring use of common law elements in favor of a Fourth Amendment-based framework).Show More

Finally, we show how the rise of progressive prosecutors may make proof of bad faith prosecutions easier. That is because policies of non-prosecution will provide claimants with more comparators for making out their claims.

Part I discusses what we mean by bad faith prosecution, and we provide a taxonomy of bad faith prosecution claims arising under different constitutional provisions and as they arise in particular procedural settings. Although we principally focus on claims that a prosecution was motivated by race or speech, we also describe other theories that may support a claim of bad faith prosecution. Part II describes the standards of proof for bad faith prosecution claims as they arise in different procedural contexts. Part III addresses criticisms that these standards are too high and inconsistent with other claims involving subjective ill will and provides rationales for the elevated standards for bad faith prosecution. Part IV briefly considers whether certain other inconsistencies in the doctrine suggest changes to requirements for proving bad faith prosecutions. Part V discusses the possible impact of progressive prosecutors on claims of bad faith prosecution.

1.  See, e.g., Angela J. Davis, The American Prosecutor: Independence, Power, and the Threat of Tyranny, 86 Iowa L. Rev. 393, 397 (2001) (using the Starr investigation as a point of departure for discussing prosecutorial abuses generally). ↑
2.  See Memorandum from Alvin L. Bragg, Jr., District Attorney, Cnty. of New York (Jan. 3, 2022), https://www.manhattanda.org/wp-content/uploads/2022/01/Day-One-Letter-Policies-1.03.2022.pdf [https://perma.cc/A336-ERT6] (announcing a policy to decline prosecution for, inter alia, marijuana misdemeanors, failing to pay a fare for public transportation, aggravated unlicensed operation, and prostitution); Jeffrey Bellin, Theories of Prosecution, 108 Calif. L. Rev. 1203, 1205–06 (2020) (providing examples of progressive prosecutors’ policies). ↑
3.  See Complaint at 6, 11, 29, Trump v. James, No. 21-cv-01352, 2022 WL 1718951 (N.D.N.Y. May 27, 2022) (seeking declaratory and injunctive relief inter alia under 42 U.S.C. § 1983 to limit the investigation, and relying on numerous statements by James as a candidate and as the New York Attorney General with respect to Trump); Trump v. James, 2022 WL 1718951, at *19–20 (dismissing the complaint based on Younger [v. Harris, 401 U.S. 37 (1971),] abstention); id. at *13 (stating that the plaintiffs had not established that the subpoena enforcement action was commenced for a retaliatory purpose). Within days of the complaint being dismissed, the plaintiffs appealed. See Trump v. James, No. 21-cv-01352, 2022 WL 1718951 (N.D.N.Y. May 27, 2022), appeal docketed, No. 22-1175 (2d Cir. May 31, 2022). ↑
4.  See United States v. Manafort, 314 F. Supp. 3d 258, 272 (D.D.C. 2018) (refusing to suppress evidence from an allegedly overbroad search). ↑
5.  See Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886) (“[T]he facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion, that, whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities . . . with a mind so unequal and oppressive as to amount to a practical denial . . . of that equal protection of the laws . . . .”). But cf. Gabriel J. Chin, Unexplainable on Grounds of Race: Doubts About Yick Wo, 2008 Ill. L. Rev. 1359, 1369–70, 1373, 1376 (arguing that the decision was based on an invasion of property rights and was not about discriminatory prosecution, although later cases attributed that meaning to Yick Wo). ↑
6.  517 U.S. 456, 459–61, 463–65, 469–70 (1996). ↑
7.  547 U.S. 250, 260–61 (2006). There are, of course, other ways for checking prosecutorial abuse such as elections and criminal process. The criminal process provides for possible determinations by grand juries and judges that probable cause is lacking, including by way of motions for acquittal and appeals for insufficiency of evidence. ↑
8.  See, e.g., Alison Siegler & William Admussen, Discovering Racial Discrimination by the Police, 115 Nw. U. L. Rev. 987, 991 (2021) (criticizing difficulties of proof); John S. Clayton, Policing the Press: Retaliatory Arrests of Newsgatherers After Nieves v. Bartlett, 120 Colum. L. Rev. 2275, 2294–96 (2020); William J. Stuntz, Bordenkircher v. Hayes: Plea Bargaining and the Decline of the Rule of Law, in Criminal Procedure Stories 351, 369 (Carol S. Steiker ed., 2006); Richard H. McAdams, Race and Selective Prosecution: Discovering the Pitfalls of Armstrong, 73 Chi.-Kent L. Rev. 605, 618 (1998); Anne Bowen Poulin, Prosecutorial Discretion and Selective Prosecution: Enforcing Protection After United States v. Armstrong, 34 Am. Crim. L. Rev. 1071, 1073–74 (1997); Melissa L. Jampol, Goodbye to the Defense of Selective Prosecution, 87 J. Crim. L. & Criminology 932, 963 (1997). ↑
9.  See Hartman v. Moore, 547 U.S. 250, 267 (2006) (Ginsburg, J., dissenting, joined by Breyer, J.); Kristin E. Kruse, Comment, Proving Discriminatory Intent in Selective Prosecution Challenges—An Alternative Approach to United States v. Armstrong, 58 SMU L. Rev. 1523, 1536 (2005) (recommending use of the employment discrimination framework from cases such as McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)); cf. Nieves v. Bartlett, 139 S. Ct. 1715, 1730 (2019) (Gorsuch, J., concurring in part and dissenting in part) (in a damages case alleging an arrest in retaliation for speech, arguing that a showing of lack of probable cause should not be required by the Court because a constitutional violation did not require such a showing); id. at 1737 (Sotomayor, J., dissenting) (arguing that the standards of Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), strike the proper balance between government interests and individual rights). ↑
10.  429 U.S. 274, 286–87 (1977). ↑
11.  Under the 1991 amendments to Title VII, a plaintiff can prevail on the liability phase if the plaintiff shows that a factor such as race was “a motivating factor for an employment practice”; the defendant has a burden of persuasion at the remedy phase if the defendant wishes to show that the adverse employment action would have occurred for an alternative reason. 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B) (2018); see also George Rutherglen, Employment Discrimination Law 53–54 (5th ed. 2021) (discussing aforementioned statutes). The Court, however, has eschewed burden shifting under certain other employment discrimination statutes, see id.; Gross v. FBL Fin. Servs., 557 U.S. 167, 178–79 (2009) (not applying burden shifting in a case under the Age Discrimination in Employment Act, 29 U.S.C. § 623(a) (2018)); id. at 179 (questioning the burden shifting approach generally). There may be some question, then, of whether the Court will continue to use the burden shifting framework where statutes do not specifically require it. ↑
12.  Cf. McAdams, supra note 8, at 653 (“Perhaps the more fundamental basis for hostility to selective prosecution claims is that they are presented by the guilty.”). ↑
13.  See, e.g., William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 511–12, 579–81 (2001) (arguing that prosecutorial discretion leads to over-criminalization but suggesting difficulties with eliminating such discretion); Stuntz, supra note 8, at 379 (arguing that prosecutorial discretion gives too much power to prosecutors, upsetting our system of checks and balances); Leslie B. Arffa, Note, Separation of Prosecutors, 128 Yale L.J. 1078, 1082 (2019) (noting that many see prosecutorial power as a central problem of the American criminal justice system); Hon. J. Harvie Wilkinson, In Defense of American Criminal Justice, 67 Vand. L. Rev. 1099, 1104–05, 1129–31 (2014) (describing critiques of prosecutorial discretion and citing authority). ↑
14.  See Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 Stan. L. Rev. 869, 908–09 (2009); Wilkinson, supra note 13, at 1132 (providing reasons for prosecutorial discretion); Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 379–81 (1973) (detailing reasons why judicial review of prosecutorial discretion would be undesirable); cf. Hannah Shaffer, Prosecutors, Race, and the Criminal Pipeline, U. Chi. L. Rev. (forthcoming 2023) (manuscript at 1–2) (suggesting that limiting prosecutorial discretion or blinding them to defendants’ race may inadvertently offset prosecutors’ giving less weight to the criminal records of Black defendants than white defendants in decisions affecting incarceration); id. (manuscript at 25–26, 37, 45, 54) (not attributing the lesser weight to records of Black defendants to progressive elected prosecutors, although finding that beliefs of individual prosecutors affected results). Our views thus could be characterized as a “checks and balances” approach, under which prosecutors’ offices adopt organizational structures that reduce incentives and opportunities to pursue constitutionally improper motives, rather than a “separation of powers” approach—that is, an approach that involves other branches of government—to regulate prosecutorial discretion. See Daniel Epps, Checks and Balances in the Criminal Law, 74 Vand. L. Rev. 1, 4–5 (2021) (contrasting checks and balances approaches with separation of powers approaches); id. at 73–74 (recommending separation of functions within prosecutors’ offices, as suggested by Barkow). ↑
15.  Cf. Dep’t of Com. v. New York, 139 S. Ct. 2551, 2573 (2019) (discussing that agency decisions are often informed by politics). ↑
16.  See Sandra G. Mayson, Bias In, Bias Out, 128 Yale L.J. 2218, 2257–58 (2019) (referring to studies suggesting some crimes may be committed disproportionately by different groups); Jennifer L. Skeem & Christopher T. Lowenkamp, Risk, Race and Recidivism: Predictive Bias and Disparate Impact, 54 Criminology 680, 690 (2016) (noting the debate as to whether differential participation or differential selection causes racial disparities in criminal justice). ↑
17.  139 S. Ct. 1715, 1724, 1727 (2019). ↑
18.  See, e.g., United States v. Washington, 869 F.3d 193, 220–21 (3d Cir. 2017); infra note 70 (describing differing views in the circuit courts). ↑
19.  See Erin E. McMannon, The Demise of § 1983 Malicious Prosecution: Separating Tort Law from the Fourth Amendment, 94 Notre Dame L. Rev. 1479, 1485, 1493 (2019) (discussing varying standards and citing cases and secondary authority); Lyle Kossis, Malicious Prosecution Claims in Section 1983 Lawsuits, 99 Va. L. Rev. 1635, 1646–48 (2013) (discussing various standards). ↑
20.  See, e.g., Hernandez-Cuevas v. Taylor, 723 F.3d 91, 99–101 (1st Cir. 2013) (alluding to differences among the circuits). ↑

21.  Compare Kossis, supra note 19, at 1662–63 (favoring use of common law elements), with McMannon, supra note 19, at 1504 (disfavoring use of common law elements in favor of a Fourth Amendment-based framework). ↑