It’s Time to End Prosecutorial Immunity

prosecutorial-misconduct

By Evan Bernick

Prosecutorial misconduct is a reality. So is the lack of any meaningful legal recourse for its victims. Over at The Daily Beast, Jay Michaelson uses the one-year anniversary of the shooting death of Michael Brown in Ferguson, Missouri to draw attention to this pressing and increasingly well-documented problem.

Michaelson notes that among the “most important” impediments to holding prosecutors accountable for abuses of their authority is the fact that “prosecutors are granted immunity for most kinds of misconduct.”

While federal law authorizes civil suits against government officers who violate constitutional and statutory rights, the Supreme Court has insulated prosecutors against liability by holding that they are entitled to absolute immunity from civil damages for actions taken as advocates. Prosecutors may use false evidence, suppress exculpatory evidence, and elicit misleading testimony in probable cause hearings, without fear that they will be held personally liable, even if they intentionally and maliciously violate the rights of innocent people.

There is no place for unchecked government power in a constitutional republic dedicated to the protection of individual freedom, and the human costs of prosecutorial impunity have proven staggering. There is compelling evidence that significant numbers of innocent people have been convicted and even sent to death row as a result of prosecutorial misconduct that virtually always goes unsanctioned and unpunished. Simply put, when prosecutors violate our rights, no judge-created rule should prevent them from being held civilly liable.

Where did absolute prosecutorial immunity come from? The Civil Rights Act of 1871, or “Section 1983,” as it is commonly known, allows citizens to sue public officials for violating their legal rights, and it says nothing about immunity of any kind. Instead, the law states says that “every person” who is acting under color of law who causes a “deprivation of any rights… secured by the Constitution and laws, shall be liable to the party injured.”

In Imbler v. Patchman (1976), a case involving the deliberate introduction of false testimony by a prosecutor, the Supreme Court relied on historical understandings and policy reasons in creating a defense of absolute immunity for prosecutors for actions taken “in initiating a prosecution and in presenting the State’s case.”

The Court reasoned that Congress must have intended to retain well-established common-law immunities when it adopted Section 1983 as part of the Civil Rights Act of 1871, in part because the threat of civil liability would deter prosecutors from vigorously pursuing justice and because other remedies are (supposedly) available to keep prosecutors in check, including professional discipline and criminal prosecution.

None of these of these justifications are convincing. The claim that Congress intended to retain existing common-law immunities in enacting Section 1983 is implausible, particularly given the conditions that prevailed in 1871 — conditions in which, as one congressmen put it at the time, “Immunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress.”

The Civil Rights Act of 1871 was one of a series of Enforcement Acts pushed by Republican supporters of Reconstruction that sought to put an end to an unprecedented campaign of terror by the Ku Klux Klan — a campaign aided and abetted by state officials who were unable and often unwilling to protect black citizens and their white supporters.

Given the scope of the threat posed by the Klan and the fact that much of the group’s activity was sanctioned by officials who either belonged to it or were sympathetic to it, it is no surprise that, as the Imbler majority candidly observed, the Civil Rights Act of 1871, aka Section 1983, “creates a species of tort liability that on its face admits of no immunities.” Further, even if Congress did intend to retain existing common-law immunities, absolute prosecutorial immunity was not among them. The first case affording prosecutors absolute immunity was not decided until 1896!

Nor are the policy justifications articulated for prosecutorial immunity compelling. A policy of zero accountability for injustice is hardly calculated to encourage the pursuit of justice by prosecutors. Even assuming that there is a risk of over-deterring officials, governments could indemnify prosecutors if courts find that prosecutors have violated the Constitution.

It is difficult to think of a proposition more damaging to public perception of the criminal justice system than that prosecutors would not do their jobs at all if they had to face the same kind of liability for not merely negligent but intentional misconduct that other professionals face — misconduct that lands innocent people in jail for years and tears families apart.

Finally, none of the alternative remedies mentioned by the Court has proven remotely adequate. Prosecutorial misconduct is rarely grounds for reversal of conviction — under the harmless error standard, a defendant who shows that a prosecutor failed to disclose exculpatory evidence in violation of his obligations under the rule set out by the Supreme Court in Brady v. Maryland (1963), must show “that there is a reasonable probability that the outcome of the trial would have been different had the evidence been disclosed.”

Even when a reversal is granted, prosecutors rarely face repercussions. Professional discipline of misbehaving prosecutors is exceedingly rare, and criminal charges against them are almost never brought, even in cases where they have suborned perjury from witnesses and committed perjury. As Ninth Circuit Court of Appeals Judge Alex Kozinski recently put it in a provocative and incisive recent article, “Who exactly is going to prosecute prosecutors?”

More fundamentally, absolute immunity is at odds with the premises upon which the very authority of the Constitution rests. According to the Framers’ premises, government is not self-justifying–it is a means to an end, namely, the security of individual rights. But, as Chief Justice John Marshall explained in Marbury v. Madison (1803), this end cannot be realized “if the laws furnish no remedy for the violation of a vested legal right.” Civil actions against the government can help protect rights, not only by ensuring that government officials are held accountable for violating them, but by bringing information to light, through the discovery process and through impartial, evidence-based judicial engagement at trial, that makes broader, rights-protective policy changes possible. If immunity is granted, there is no discovery process and there is no trial.

Section 1983’s language is broad, unequivocal, and unambiguous. Ensuring that prosecutors are held accountable for breaching their ethical duties and violating citizens’ rights would not require a constitutional amendment. It would only require reading a duly enacted federal law to mean what it says and not reading into the law policy choices that Congress never made.

If the Supreme Court is unwilling to revisit Imbler, Congress can revise Section 1983 to specify that prosecutors who deprive citizens of constitutional or statutory rights are liable to those people just like the rest of us are when we injure someone through negligence or intentional misconduct. It is time to abolish a rule that stands as an affront, not only to the letter of federal law, but to our aspirations towards a just legal order.

Evan Bernick is the Assistant Director at the Institute for Justice.  Originally published by the Huffington Post.

About The Author

Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

Related posts

28 Comments

  1. sisterhood

    “Prosecutorial misconduct is rarely grounds for reversal of conviction — 

    Oh boy, don’t get me started. The Solano & Yolo county DA’s care a little too much about winning, and a little too little about their Constitutional Law class. Maybe they need a CEB refresher course on that one, instead of re-taking Arrogance 101 and Advanced Arrogance, 102. Maybe they need to hang out in the real world for a while, around low income folks, struggling to make ends meet, instead of jumping into the DA’s office, directly out of law school, and thinking they can judge folks. They don’t have the life skills or compassion to judge anyone when they are under 25 years old. But they do, anyway.

  2. sisterhood

    “Professional discipline of misbehaving prosecutors is exceedingly rare, and criminal charges against them are almost never brought, even in cases where they have suborned perjury from witnesses and committed perjury. ”

    Is this sense of immunity what fuels their arrogance?

  3. Tia Will

    the Supreme Court has insulated prosecutors against liability by holding that they are entitled to absolute immunity from civil damages for actions taken as advocates. Prosecutors may use false evidence, suppress exculpatory evidence, and elicit misleading testimony in probable cause hearings, without fear that they will be held personally liable, even if they intentionally and maliciously violate the rights of innocent people.”

    What this has done is to effectively place prosecutors above the law. There seems to be some confusion in our society about the distinction between the law itself and those whose careers are to interpret, enforce, and restore justice when a law has been broken. There is a segment of our society that seems to believe that these individuals have become embodiments of the law and thus are not subject to its constraints. I do not share this view. Perjury for a defendant or supporter should equal perjury for a prosecutor or supporter. All citizens, regardless of their job description should be subject to the exact same laws, and the same penalties for breaking those laws. 

    1. Davis Progressive

      yes and no.  there is a second problem here and that is that the organization supposed to have oversight seems unwilling to sanction attorneys who commit this kind of misconduct.  if the bar association would come down as hard on those violators as they did someone like clinton parish, a lot of this could be dealt with even with immunity from civil damages.  that said, i would favor a system closer to what they have with police – if you are operating according to the scope of your duties, police are not held to answer for civil damages personally – the agency is.  but that can be waived for gross misconduct at the discretion of a judge.

      1. Tia Will

        DP

        Point taken. I understand the balance between individual and organizational responsibility. What is critical to me is that the victim of such misbehavior be compensated and that in instances in which there has been deliberate malicious behavior, the individual be held responsible regardless of their job title.

      2. sisterhood

        “…a segment of our society that seems to believe that these individuals have become embodiments of the law and thus are not subject to its constraints.”

        Hear, hear.

      3. hpierce

        You have to remember, DP, that attorneys are a vestige of the ‘guild system’.  The main misconduct that attorneys will be disbarred for is failure to pay their ‘guild’ dues to the bar association.  But I’m sure you know that.

        It takes egregious/wanton misconduct, or conduct that might question/threaten the ‘guild’, to even have disbarment considered.

        1. sisterhood

          “…same applies to the defense attorneys… they are “empowered” to pull all stops out to defend…” 

          Innocent until proven guilty. With proof, truth, not lies.

  4. sisterhood

    “…if you are operating according to the scope of your duties, police are not held to answer for civil damages personally – the agency is. but that can be waived for gross misconduct at the discretion of a judge.”

    Re: misconduct: You make sense, DP, but you are assuming citizens feel safe enough to report bad cops, and bad D.A.’s., for example, in Solano or Yolo Co. Nowadays, out in public, at least citizens can video or photograph cops misbehaving. Vanguard courtwatch folks are some of the only folks who record, in writing, D.A.’s misbehaving in the courtroom.

      1. sisterhood

        Complainants who feel safe enough. Now that my children are grown and cops can no longer threaten in a passive aggressive way (that I tape recorded at my desk at work, btw), I would have handled my own situation way differently. But when a mean cop threatens to send Social Services to my home to interview my teenagers and undoubtedly place a lasting psychological effect on a fellow cops’ grandchildren, I draw the line on my own courage and I succumb to their crappy behavior, out of a maternal sense of what is the best way to handle an impossibly difficult situation. My teens, therefore,  were not permanently psychologically damaged. Btw, I already had a complete, complicated escape plan in place for my teens. CPS would never have got them. Thank God they never answered the front door when someone tried to harass them while I was at work. (Real brave of them to attempt to bother teenage kids with no legal representative present…glad my kids were saavy enough not to answer the door.  All this accomplished was turning two wonderful kids into people who swear they will never ever call the cops unless their lives are in imminent danger and they cannot defend themselves. Their take on the situation, not mine. Two cop’s grandkids.)

        So, yes, complainants are absolutely necessary, dear counselor, but sometimes the stakes are way too high to complain.

  5. PhilColeman

    In the discussion of absolute immunity and it particular application to prosecutors, it’s a bit curious that no mention at all was made of absolute immunity found throughout another branch of government.

    The judiciary.

    Judges enjoy absolute immunity the same as for prosecutors. Magistrates enjoy even more protection from sanction and public censure than do prosecutors. Prosecutors are subject to the elective process; judges enjoy life-time tenure or a perfunctory re-election by acclamation every six years.

    Since judges created the notion of absolute immunity for themselves and prosecutors, those who seek reform must resort to the legislative process for relief. Even if that were to happen, the resulting statute, state or federal, would surely be challenged in court on Constitutional grounds.  Jurists won’t likely abandoned the comfort of absolute immunity, and they won’t likely take it away from prosecutors, for fear of starting something that leads to a threat of their protected status.

     

    1. Davis Progressive

      judges do enjoy absolute immunity.  i think there’s a general sense that prosecutors have more power, particularly in a system where sentencing guidelines rule.

  6. Lowell Landowski

    Start by instructing the jurys that prosecuters can lie, deceive, and hide the truth, with absolute immunity, and the judge too.   Take what they say as maybe the truth, but maybe not.  As it is now, jurys take what the judge says, and what the prosecuter says, as the absolute truth, but sometimes it is far from the truth.

    1. hpierce

      Just make sure the jury knows the same applies to the defense attorneys… they are “empowered” to pull all stops out to defend even the most indefensible.  They can lie, cheat, etc. to get even the most egregiously guilty person “off”, and if they win, and if their client commits even more heinous crimes, they do not have to answer for that.

      1. tribeUSA

        hp

        –yes, the balance of power in the courtroom. Obviously the issue of prosecutorial and defense attorney immunity is an immensely complex one, and each facet cannot be looked at in isolation (as framed by the article and comments)

        –I don’t know enough about the workings of the court system to comment incisively on these issues.

        –anyone care to respond to hp’s reminder, in the context of the balance of power in the courtroom (and our adversarial system, etc.)?

        P.S. I think most jury members are savvy enough to understand that it is likely that lawyers for both sides will represent some ‘stretchers’, in the language of Huck Finn, or slight embellishments (or ‘innocent’ oversights) on the truth.

  7. sisterhood

    I agree with Lowell. Perhaps DP or another kind lawyer could print a generic jury instruction here, we won’t hold you to the perfect legal language, promise. Perhaps then readers could comment on their interpretation of jury instructions. Lowell has a valid point. Jurors do not understand DA’s can lie, with immunity.

    1. David Greenwald

      Actually, one of the jury instructions is that what the attorneys say is not evidence. They can frame the evidence however if what the attorney says contradicts with what they remember the evidence to be they are supposed to go with the evidence. That should in most cases cover lies by either attorney.

  8. Tia Will

    LL

    Start by instructing the jurys that prosecuters can lie, deceive, and hide the truth, with absolute immunity, and the judge too.”

    Excellent suggestion. I would also suggest an addendum to the reading of one’s Miranda rights. Something to the effect of “should you waive these rights to silence,  you should be aware that neither I nor any of the police, interrogators, or investigators that you will encounter are obliged to tell you the truth. Anything that we say may be a lie, and in some limited circumstances, we are trained to lie in order to trick you into making certain statements which may incriminate you.”

  9. sisterhood

    Agree with Tia. Perhaps they should expand the Miranda to include, “we will lie about things we saw on your computer and in your loved ones’ possession, in a futile attempt to get you to corroborate our lies about your loved one. We will lie about photographs in your loved one’s possession. We will lie about members of your immediate family, in a futile attempt to get you to give up information about your immediate family. We will lie about whether your interview is being recorded, too, if you go into a room at the police station with hidden video camera’s, if we ask your permission to tape record you. We will explain later that we were not using a tape recorder, we were using a hidden video camera, so we technically did not lie to you.”

  10. sisterhood

    Perhaps neither defense nor D.A.’s should ever be allowed to sit on the bench. Perhaps only Constitutional Law professors should hold that honour.

    Perhaps DA’s and defense should rotate every two years, so they can tenaciously fight for the people they serve. Perhaps the budget for defense lawyers should be equal to the budget for the DA’s office.

    1. Miwok

      I think everyone could benefit from moving around in a job like that, especially politicians.

      However, like cops, the emphasis on bad ones is more about who protects and hides the behavior rather than what the others do. In a competent enterprise, you do not tolerate incompetence and deliberate malfeasance. The people who should be watching over this to maintain the reputation of the institution have abdicated their responsibility to the public by letting ANY rumor of this be not investigated.

  11. tj

    Most judges used to be prosecutors.    Not much chance of justice in those courtrooms.

    Re Kozinski and the 9th Circuit, an attorney at Porter Scott informed that they win their cases because they have “contacts” in the 9th Circuit who see to it that their cases are handled so they will win.  At least in part this probably has to do with how panels are selected and which cases go to which panel.  It’s supposed to be all fair and random, but apparently it isn’t.  Who knows what goes on inside the 9th Circuit.

  12. Lowell Landowski

    I have a profound hearing loss, so the DA played me as a dihonest and unreliable witness.  I look at people to hear where they are comming from, because I lack directional hearing, and I strain to hear.  I strain so hard to hear that I go sort of blind, because I am focusing all my energy on hearing.   She knew well of my disability, because I had be attending court for many months. She treated me like Quasi Moto, put him back in the bell tower, he is weired.  I had no council, and the sort of council I was provided, was not there to object.   That guy is dishonest, he is trying to protect his daughter, do believe a word he says, his testimony to quote the Deputy DA was, “All over the place.”   The jury was biased from the get go, because of my lower class community.   The jury was mislead, because they trusted in the Deputy DA.  She played to their middle class mentality.  But at the time, it was total news to me, and I was telling the truth.

  13. Lowell Landowski

    The remedy this miscarriage of justice is to have balanced jury instructions. Can your disability be used against you in a court of law? Yes, especially when the prosecutor is immoral and out to get the maximum conviction.  The jury needs to know this.

     

  14. Lowell Landowski

    Liberty made mistakes trying to help a homeless person, a lifelong friend. She got sucked down in a short time, one week. I hope Liberty has learned her lesson. Would she be better off in prison? Would Lisa be better off in prison? Lisa has a problem with a chemical imbalance and chemical dependency. I have a chemical imbalance and dependency too. I lack potassium, and have to take 8 pills a day to get enough. If I do not take 8 potassium pills a day, my heart starts skipping, I get confused and disoriented. This is on top of my perceiving the world at 18 inches, and one side, due to my profound hearing loss and single sided deafness. It is extremely difficult for me to hear, thus act, normal. Anyone can be made appear to be defective person at first glance, but I am a smart person; and so is Lisa, she just needs medical help, not prison.

     

Leave a Reply

X Close

Newsletter Sign-Up

X Close

Monthly Subscriber Sign-Up

Enter the maximum amount you want to pay each month
$ USD
Sign up for