April 26, 2008
A strong argument for limiting prosecutorial immunity
In this commentary over at Reason, titled "Suing the DA: Should prosecutors be immune from civil lawsuits?", Radley Balko makes a strong case for affording prosecutor only qualified immunity, rather than absolutely immunity, for their official behavior. Here are excerpts from the strong piece:
There's plenty of evidence that this [absolute immunity] shield from accountability is allowing some prosecutor's offices to run roughshod over civil rights. The New York-based Innocence Project reports that prosecutorial misconduct played a role in about 40 percent of DNA exonerations over the last decade or so. Such misconduct could include knowingly putting on false testimony, withholding exculpatory evidence from defense attorneys, and coercing witnesses, among other transgressions....
Downgrading prosecutorial immunity would not only go a long way toward puncturing the air of invincibility that pervades some prosecutors' offices, but the discovery process in the cases that are allowed to go forward might reveal other cases of misconduct or wrongful conviction.
We shouldn't allow every aggrieved defendant to sue his prosecutor. But in cases where someone is exonerated after being convicted of a crime, where there's clear evidence that something went terribly wrong at trial, and certainly where a single prosecutor has overseen more than one exoneration, allowing civil rights suits against these government officials in their capacity as government employees might shine some needed — if uncomfortable — sunlight on a part of the criminal justice system that has for too long been immune from real accountability.
April 26, 2008 at 06:12 PM | Permalink
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Well if you buy into that, why not take the NEXT step and abrogate absolute judicial immunity?
Posted by: anonymous | Apr 27, 2008 1:17:16 PM
There are situations where I think judicial immunity should be limited. See, e.g., Stump v. Sparkman, 435 U.S. 349 (1978), for just such an example.
Prosecutorial immunity is different, though. We have placed an inordinate amount of power in the hands of prosecutors, and the discretion cannot be reviewed by trial or appellate courts. We can eliminate bad apples by shining some light on abusive practices.
As I so often hear from the other side, if you're not doing anything wrong, what have you got to fear?
Posted by: Alec | Apr 27, 2008 4:48:20 PM
It doesn't help they are elected officials either, just look at the Duke Lacrosse case.
Posted by: Mark | Apr 27, 2008 5:23:57 PM
Good point, Mark. I was just talking with a friend the other day about that. They should not be elected. Particularly when crime stories fuel the local media.
Posted by: Alec | Apr 27, 2008 5:47:18 PM
I read your blog and think you're a good writer. I'd like to invite you to join our new online community at polzoo.com. We are a user generated political editorial and social network. You can write blogs, participate in forums, build a profile and link up with other members.
We also choose from amongst our own writers to feature on the front page. You can also advertise your blog on our blogroll and exchange links. I think your voice would be a great addition to our site.
Posted by: polzoo | Apr 27, 2008 9:09:52 PM
Mark & Alec:
While it is true that good DDAs "have
nothing to fear if they are doing the
right thing," this pithy analysis misses the entire point. DDA's are free to pursue justice -- be it a trial, pre-trial disposition,
or dismissal -- because they have the
liberty and discretion to file cases
based on their review of the existing
evidence. Allowing civil suits like
Mr. Goldstein's will only threaten
public safety rather than strengthen
it. These suits will only encourage
defendants to file lawsuits for such
ordinary reasons as dismissing certain
filed counts pursuant to a negotiated
plea agreement (i.e., "If the DA
dismissed it, then it must be bacause
he had no evidence."
No DDA will be willing to put their
career/personal finances on the line
knowing he/she is subject to a
post hoc ergo propter hoc plaintiffs
bar. The more likely course of action
will be fewer cases filed against those
truly violent and habitual criminals
who prey on innocent people daily.
P.S. Appointing DA's makes no sense
without some sort of check on his
authority. That's why electing DA's
makes perfect sense -- they are
ultimately accountable to the people
Posted by: Large County Prosecutor | Apr 28, 2008 4:58:36 PM
The other issue is the propriety of a judicial revision. The bottom line is that prosecutors have a clear reliance interest in immunity, given long-standing judicial interpretation. If that is to be undone, get Congress or the applicable state legislature to undo it.
Posted by: federalist | Apr 28, 2008 5:02:55 PM
Large county prosecutor-
how do you respond to the counterarguments that we may limit liability to qualified immunity? how do your respond to the fact that the prosecutor will almsot never be liable for any mistake unless the prosecution is truly malicious becuase the plaintiff is going to loose unless he can prove hes not guilty and didn't thereby contribute to the 'damage' of being prosecuted?
How can you possibly be worried about liability over a dropped charge pursuant to a plea agreement?? the agreement will simply get the guy to waive his right to use.
How do you justify the fact that police and prisons can be sued while you can't? They also make tough decisions with the same criminal element, and they are still able to functions without absolute immunity.
i wrote about this at length on my blog.
Posted by: george weiss | Apr 28, 2008 5:25:20 PM
"Appointing DA's makes no sense without some sort of check on his
authority. That's why electing DA's makes perfect sense -- they are ultimately accountable to the people they serve."
Not really. Individual DDAs are undoubtedly given wide latitude in their own charging decisions. We appoint USAs. The indirect democratic checks are those elections we hold every four years and the senate confirmation process. They also undergo real security checks.
"this pithy analysis misses the entire point."
It was not intended to be serious. I was pointing out what supporters of the Fourth Amendment and other constitutional protections hear from those who wish to abolish the exclusionary rule, or whittle it down to nothing.
"These suits will only encourage defendants to file lawsuits for such ordinary reasons as dismissing certain filed counts pursuant to a negotiated plea agreement (i.e., 'If the DA dismissed it, then it must be bacause
he had no evidence.'"
As George notes above, this can be handled by the plea agreement, codified by statute or by judicial rule. Additionally, the evidentiary burden and pleading requirements can be heightened.
Federalist: It wasn't an "activist court" legislating from the bench when they authorized immunity doctrines that do not appear in the actual text or history of the statute, i.e., Section 1983? So then we have a clear reliance interest on other constitutional law and statutory constructions? Somehow I doubt you believe that.
Posted by: Alec | Apr 28, 2008 7:38:39 PM
Perhaps they were activists. I am not an expert in the caselaw that started the immunity doctrine--perhaps S.cotus can enlighten us. As for reliance on settled law--isn't that the whole point of stare decisis? Now, stare decisis is not an inflexible command, even in statutory interpretation, but here, the reliance interest seems pretty strong.
Posted by: federalist | Apr 29, 2008 12:55:45 AM
Not really. Less strong than the millions of Americans who rely on Roe and Lawrence. And even were that reliance stronger, it rests on weaker grounds: mere statutory, as opposed to constitutional, interpretation. On that point, while I understand your point that statutes could be changed by Congress (or the relevant state legislature), the fact is that there was no language supporting any kind of absolute (or qualified) immunity in the relevant statutes. Even the courts concede silence (in effect, at least). We're reduced to making arguments from Congressional silence, and even then only after the courts have dictated what those statutes meant. I just think it is a weak argument and inconsistent from arguments I usually associate with judicial "restraint."
Posted by: Alec | Apr 29, 2008 1:20:33 AM
Alec, I'll respond to your well-thought points the best I can.
1. "We appoint USAs. The indirect democratic checks are those elections we hold every four years and the senate confirmation process. They also undergo real security checks."
Yes, the President appoints the separate U.S. Attorneys who take office only upon the advice and consent of the Senate. This process, however, is inherently more political than a general election for a District Attorney. Each of the separate USAs undoubtedly has a political connection to either POTUS or a U.S. Senator (e.g., Johnny Sutton of the W.D. TX, and Rachael Paulose of the Dist. of MN). The USAs, moreover, serve to implement the executive policies of DOJ and POTUS. As long as they do not upset either of these two masters, they will continue in their term unscathed. We have, however, seen a recent departure from this general principle during the curious tenure of Alberto Gonzales and his US Attorney purge.
As for "real security checks," most elected DA's have been DDA's in a local office for a good period of time. Any DDA will tell you that the background check for that position is as intense as any federal background check (I know from personal experience as a former employee of the military, federal judiciary, and two large county prosecutorial offices).
2. "I was pointing out what supporters of the Fourth Amendment and other constitutional protections hear from those who wish to abolish the exclusionary rule, or whittle it down to nothing."
This is an imperfect comparison. The exclusionary rule is a tool of deterrence while a civil suit of a prosecutor is designed solely to punish. Police officers do not refuse to arrest people based on a fear of a bad search. They do, however, refuse to arrest/file reports where the affected parties give even the slightest hint of a civil rights lawsuit or a complaint of excessive force. The facts underlying the decline in morale at LAPD stem directly from officers who will not take decisive action out of fear that citizens will lodge a complaint about their performance. This scenario portends a grave outlook as DAs bloat their bureaucracies with "compliance attorneys," or as DDAs turn to their union reps every time they file a case, take a case to trial, or dismiss a case.
3. "This can be handled by the plea agreement, codified by statute or by judicial rule. Additionally, the evidentiary burden and pleading requirements can be heightened."
While the first half of this point is certainly true, it is unlikely any legislature will agree to heightened plea requirments or evidentiary burdens because of the following reality -- most legislatures are arms of the plaintiffs bar and will not hamstring this constituency in any way. I would have no problem with qualified immunity if my home state legislature attached a "loser pays" provision to the implementing legislation.
Posted by: Large County Prosecutor | Apr 29, 2008 8:13:16 PM
Large County Prosecutor - you need to go back and review your tort law paying particular attention to the purpose of tort law as stated by Justice Oliver Wendell Holmes in the Common Law and elaborated by Judge Richard Posner in Economic Analysis of Law. Tort law's specific goal is deterrence - deterring wrongful acts which damage people or property - thus, absolute immunity is directly contrary to the purposes of tort law in general.
In the Constitutional tort, Section 1983 analysis, the notion of absolute immunity is directly contrary to the Congressional purpose in enacting Section 1983. Section 1983, was passed originally with the purpose of protecting the rights of the newly freed slaves during reconstruction - it was specifically aimed at conduct by the state and local governments of the South. With the prosecutor being an agent of the state government, even as an elected official, it is directly contrary to the purpose of the Congressional law as well as the Fourteenth Amendment to say that any state official has free latitute to violate the Constitution.
Now, given the precedents, it is possible that qualified immunity could be given to state prosecutors for ordinary acts of negligence as has been done with the police. However, there is no question that policy wise, there should be no immunity for acts of prosecutorial misconduct and that it is contrary to the original purpose of the Fourteenth Amendment and 42 USC 1983, an act duly enacted by Congress pursuant to its powers to enforce the 14th Amendment (and federalist that is why there is no issue with wrongful reliance because prosecutors being attorneys should know that their immunity cannot be reconciled with the purpose of the 14th Amendment). That is the only sure way to deter what is often intentional prosecutorial misconduct and in fact, will also better promote better practices by local prosecutors offices. Civil lawsuits always have the purpose of deterrence of wrongful acts and promoting best practices.
Posted by: Zack | Apr 30, 2008 11:13:13 AM
large county prosecutor said:
"...a civil suit...[against] a prosecutor is designed solely to punish"
civil torts obviously are also there to make whole the loss caused by the tortfeasor, and to deter. Punitive damages are for punishment. that's pretty fundamental to tort law.
Posted by: george weiss | May 1, 2008 12:29:41 AM
As noted above, deterrence is a primary function of tort law, even where strict liability applies. In the latter case, the deterrence is subsumed into design precautions.
Political appointment of DAs need not follow the US attorney model. For example, they could be appointed to serve fixed terms, subject only to impeachment by the legislature.
Re: Plaintiff's bar. Just don't buy it. When it comes to sentencing and criminal law issues generally, state legislatures and Congress have proven themselves to be firmly pro-government. I doubt that would change if the plaintiff's bar (hey, aren't you a "plaintiff" as a prosecutor?) could sue DAs for intentional, deliberate, malicious etc. deprivation of a person's constitutional rights.
BTW, if I trusted DAs to charge prosecutors who abused their discretion I wouldn't bother with promoting this reform. But since that is the equivalent of trusting a branch of government to regulate itself, I'll decline. Criminal defense attorneys are subject to IAC claims; holding prosecutors liable for their misdeeds is appropriate.
As far as security checks, I doubt it, from what I have witnessed, at least as far as DDAs are concerned. And in any event USA security checks are coupled with, as Senator Clinton would have it, "vetting" through the confirmation process.
I appreciate your points, and reasonable minds can (and clearly do) disagree. To me, however, holding DAs accountable when they maliciously prosecute someone is a good.
Posted by: Alec | May 1, 2008 2:46:35 AM