TheAgitator.com
More on Prosecutorial Immunity
Tuesday, April 22nd, 2008A friend and formal federal prosecutor writes with an interesting possible consequence of allowing district attorneys and U.S. attorneys to be sued for poorly managing their subordinates that I hadn’t considered.
He says that allowing prosecutors to be sued under the supervisory role with only qualified immunity protections might make some prosecutors less willing to offer legal guidance to the people investigating a case, for fear of subjecting themselves to the possibility of being labeled “investigators” and, therefore, subject to qualified instead of absolute immunity. This may actually cause more civil rights violations on the part of investigators (read: law enforcement) in some investigations, because they won’t have access to regular legal counsel throughout their investigation.
It’s a fair point, and worth considering in the Goldstein case. I thought the Goldstein case might be a small step in the right direction, but as is often the case, sometimes only going half way is worse than doing nothing at all. Looks like the only real solution here is to drop the concept of absolute immunity altogether, and instead subject all prosecutors to the qualified immunity we give most other government employees. For that to happen, Congress would have to overwrite the Supreme Court’s decision in the Imbler case, and make Section 1983 suits explicitly applicably to prosecutors.
I don’t see why they shouldn’t. Qualified immunity is still a high hurdle. Merely deciding to bring charges in a questionable case wouldn’t be enough. You’d still have to show that a prosecutor withheld exculpatory evidence, knowingly or recklessly put on false evidence, encouraged a witness to lie, or committed some other egregious violation.
But regular readers of this site know that there are plenty of examples of such behavior. And as of right now, there isn’t much of anything the victims of these prosecutors can do about it.
That would at least open the door to possible compensation for the people wronged. But how do we do more to prevent abuse in the first place? The former federal prosecutor mentioned above suggests more bar disciplinary action. He says prosecutors are more likely to fear losing their license or reputation than they are the distant possibility of a civil rights suit.
In all my years of practice in Texas, and of reading the Bar Journal, I have never seen a public reprimand or any other action taken by the Bar against a prosecutor. Maybe I missed it, but I doubt it.
I would say that you are taking completely the wrong approach to the problem. Replacing absolute immunity with qualified would be great idea (I assumed this was what you were proposing from the start), but it’s an odd way to go about things. The real problem here is that you are clinging to a Federal solution (section 1983) to a State problem.
The real outrage here is that you can’t sue these prosecutors and policemen in state court for the torts they commit; and the name of the outrage is “sovereign immunity”. An absolute monarch (say a King of England in the 15th century) cannot be sued in “his own courts” — the judges serve at his pleasure, he is allowed to change the law at any point, and in any case there is no way to enforce a judgement against him. For some strange reason this doctrine has continued to apply to the US States (and the United States) on the theory that they retained the powers of the King after the revolution. The problem is that this doctrine doesn’t make sense in a republican form of government. The people are the real sovereign. It is simply not true that the judges serve at the pleasure of some notional “sovereign” that is also free to amend laws retrospectively etc. Rather, the people should be free to sue government officials (in their official capacity!) for torts they commit in the name of the state. Life tenure for judges, and general judicial independence means that the Courts are not faced with a conflict of interest when they resolve such lawsuits.
You see, for a Federal Court to step in and meddle in the affairs of a State government, something truly extraordinary must have taken place, and the violation must be of constitutional proportions. Thus the bar is set very high. It simply should not be the case that S.1983 should be the only remedy for these violations. Rather, the main remedy should be a tort lawsuit in state court. Even though I hate the even idea of “qualified immunity”, each time the USSC come down on the side of shielding police officers, each time I realize that the problem is not with S.1983 itself, but rather that S.1983 seems to be the only avenue open — that the “sovereign monarch” has exercized his authority to capriciously shield his favorite agents.
Imagine you arrive at a house, and the door is completely barred. Only a small window is one-quarter open. Complaining about S.1983 amounts to thinking “The window seems to be the only way in, but I can’t squeeze myself in through it — let’s try getting it more open”. You should really be thinking “the window isn’t the normal way into a house; we should try to get the door open”.
That’s a simple problem to solve. Sarbox ‘em. They are responsible for EVERYTHING that happens in their office or that passes thru their office. If they are spending their time on managing their subordinates, they have less time to bring marginal cases. They also have immense incentive to get rid of any cowboys in the office.
Lior raises a good point, but I think it is important understand the importance of working via S 1983: only via S 1983 will we get judicial review of prosecutorial abuse because most states will not change their laws. To use the (great) window analogy: once we get in via the 1983 window, we can turn on the light and shame State legislators to enact reforms at the state level.
One of the arguments for immunity is that the prosecutors would be subject to harrassing lawsuits. i.e. they would be subject to the same sort of harrassment that they can inflict on anyone else. Oh, the horror. Given the lack of effective oversight, I say absolute immunity must go.
I disagree on the sufficiency of curbing abuse via disbarring the prosecutors: it stops the prosecutor from continuing the abuse, but it does not compensate those who were harmed by the abuse.
Joe, SARBOX only applies to publicly listed companies.
Well I think soveriegn immunity has some modern-day rationalizations that, while very arguable, do make a bit of sense. Namely, that by draining government coffers, yuo’re punishing all the citizens of the state rather than specifically the wrongdoer. In other words, a rogue prosecutor is not likely to feel too threatened by a rulign that goes against him but does not affect his wallet, but rather takes public money.
Either way though, the solution is not through law suits per se, but through a more direct means of punsihing prosecutors. It would be great if the political mechanisms work well enough that people would be outraged and that would create changes (read: firings) but that will never happen. Bar overseers and maybe official review boards or Ombudsmans with atual teeth would likely be the best way to punish prosecutors who do those egregious things that are mentioned above.
I always think of someone being Nifonged when I think of absolute immunity for prosecutors.
The three Duke students were a hairs breadth away from being convicts just because a rogue prosecutor needed to be reelected, and amount of innocence was going to stop him in his quest.
We are still waiting to see if he immune or not.
Yes, I know what Sarbox applies to. It wouldn’t be impossible to increase the sweep of sarbox to apply to public officials. It was an idea in response to the expectation that prosecutors would become more hands-off to avoid being liable for decisions. Make them liable for the decision, whether it was their’s or not. They are in charge of the office, and should be responsible for everything that happens in the office.
The modern logic behind sovereign immunity is, indeed, to minimize the drain on the “public” coffers. Unfortunately, all it does is shift the costs to another party, usually the one least able to bear such a cost.
For example, if the government is regularly harrassing and jailing the poor black population, and then shielding its actions behind “state sovereignty,” then you (from an economic perspective) are transfering resources from a poor community to the general community. I dont know anyone who would agree to a tax that did this. In fact, this is a special tax that is entirely at the whim of the goverment to whom it applies and, as a matter of empirical result, especially targets the poor.
Nebraska’s bar has no problem disciplining prosecutors - they do it plenty. The problem with relying solely on the disciplinary proceedings is that too few people know where to go, how to do it, and I’m not aware of any explicit authority the bar would have to order restitution.
@Nick T:
If the wrongdoer is sued in his official capacity, then he is an agent/employee of these citizens and hence they are liable for his conduct. When my government acts, it acts as my agent, and I foot the bill. If it acts badly, I am also responsible for the bill — and to elect different officials who will make sure bad acts don’t repeat. When a police officer beats the crap out of someone, he is doing so as my agent and in my name (even though I would disapprove of the action), and I accept responsibility for compensating the victim. When a company commits fraud we don’t allow the shareholders to say “you can’t sue the company directly — that would drain money out of our personal coffers, and we didn’t do anything wrong — you must sue the individual employees who committed the fraud”. We all are the shareholds in the state we are citizens of.
From a different point of view, you seem to say that having each victim of government abuse should bear the costs of his abuse is fairer than sharing these costs among all of society. Does it really make sense?
Bar disciplinary action??? Fox guarding the henhouse.
Remove all immunity from everyone. President, judges, prosecutors, police, everyone.
I cant remember if i saw this here or not, but there is this:
“Supreme Court to hear Los Angeles County district attorney immunity case”
http://www.latimes.com/news/local/la-na-scotus15apr15,0,2869765.story
Here’s another idea. Make wrongful prosecution a crime tried by petit jury only. Every government employee involved, law enforcement, investigators, prosecutors, judge, gets to stand trial and the jury determines who was involved. Those found to be involved by the jury are sentenced to the exact punishment meted out to the innocent person(s) convicted. Or to the maximum potential punishment if sentence had not yet been pronounced.
One issue not mentioned is the consequence of increased liability in the willingness of prosecutors to correct past mistakes. Since they have immunity, it is easier to admit that mistakes were made. I am for reduced immunity but I would not want to harm those people who may be innocent and who are currently awaiting review.
Qualified immunity for police, judges and prosecutors, and the possibility of being sued personally would end all of the problems.
“One issue not mentioned is the consequence of increased liability in the willingness of prosecutors to correct past mistakes”
In theory, yes. In practice, how often do you hear of prosecutors willing to admit past mistakes? Even when there is overwhelming evidence that the prosecution got it wrong? I believe that the prosecutors have a greater personal interest in their reputation, their chance for higher office, and their pension (see Nifong), than they do in “justice.” Balancing this self interest requires accountability. The current system has not been able to hold prosecutors accountable.