The Idiosyncrasies of Imbler: Absolute Immunity for Prosecutors Makes Absolutely No Sense

in Criminal Law, Federal Legislation, Legislation in Court
January 26th, 2024

Supreme Court Justice Robert H. Jackson once observed that: “The prosecutor has more control over life, liberty, and reputation than any other person in America.” But with great power does not necessarily come great responsibility. When prosecutors present fabricated evidence and false testimony, make false statements, suborn or coerce perjury, conspire with a judge to predetermine the outcome of a case, withhold exculpatory evidence in a death penalty case, destroy exculpatory evidence, deny a speedy trial, and even violate a citizen’s right to be free from involuntary servitude, courts have held prosecutors are absolutely immune from civil liability. This immunity originates from the 1976 Supreme Court decision of Imbler v. Pachtman. In that case, Richard Pachtman, a prosecutor, withheld evidence that confirmed the alibi of a defendant in a murder trial, Paul Imbler, resulting in Imbler’s wrongful conviction. Yet, the Supreme Court held that Pachtman had absolute immunity from Imbler’s civil suit. The Imbler Court found support for absolute prosecutorial immunity in the “common law,” “history,” and “public policy.” Yet nearly half a century after Imbler, neither the common law, history, nor sound public policy provide continued support for absolute prosecutorial immunity.

The Imbler Court argued it was “well settled” that absolute immunity for prosecutors was “the common law rule.” In support of this claim, the Court cited a handful of lower court cases the earliest of which was decided in 1933. But none of these cases referenced English common law. At common law, absolute prosecutorial immunity was impossible as there was no such thing as a public prosecutor. Rather, private parties “prosecuted criminal wrongs which they suffered.” The public prosecutor was a “historical latecomer” who “did not emerge” in England until the “the Office of Director of Public Prosecutions” was established in 1879.

Even after public prosecution began in the U.S., as Justice Scalia recognized in his 1997 concurrence in Kalina v. Fletcher, there was “no such thing as absolute prosecutorial immunity.” Rather, prosecutors could be sued for malicious prosecution. For example, in 1854, the Massachusetts Supreme Judicial Court held that a prosecutor accused of lying did not have absolute immunity and could be prosecuted for “malicious” acts. The first U.S. court case granting prosecutors absolute immunity was handed down by the Indiana Supreme Court in 1896. That decision, which “became the clear majority rule” across the U.S. in the decades after it was decided, mistakenly concluded that the 1854 Massachusetts Supreme Judicial Court verdict which allowed for prosecutors to be sued for lying had in fact established that prosecutors were entitled to absolute immunity. Consequently, as Justice Scalia pointed out, Imbler was premised upon “a common-law tradition” that “was not even a logical extrapolation from then-established immunities.” At English common law, there was no such thing as a public prosecutor and throughout all of U.S. history until well after Reconstruction, public prosecutors had “the equivalent of qualified immunity” making them liable to suit for malicious acts.

The Imbler Court also made a historical argument in favor of absolute immunity for prosecutors, claiming that the Reconstruction Congress did not intend for the 1871 Civil Rights Act to be read to mean what it plainly says that “every person” acting under color of law who violates a U.S. citizen’s constitutional rights is subject to suit. Rather, according to the Imbler majority, when the Reconstruction Congress referred to “every person” they did not mean to include prosecutors. The Court produced no evidence from the legislative history of the 1871 Act to support this conclusion. Given that no U.S. court had ever granted absolute immunity to a prosecutor until 1896, it is impossible that the Reconstruction Congress had this non-existent immunity in mind when they were legislating in 1871. Justices Thurgood Marshall, Blackmun, Brennan, Scalia, and Thomas have all since ridiculed Imbler’s revisionist history. Moreover, the 1871 Civil Rights Act was passed in part to remedy “Southern prosecutors’ aggressive abuse of the judicial process” to “thwart Reconstruction and the enforcement of federal civil rights laws.” In just one Southern state, over 3,000 Union soldiers were prosecuted. The Civil Rights Act exposed Southern prosecutors to civil liability to prevent federal officials from being subjected to malicious and baseless prosecutions “for arresting southern violators of the Civil Rights Acts.” The Imbler Court did not consider this history, refusing to construe the text of the Civil Rights Act “as stringently as it reads,” and instead implanting into the heart of the Civil Rights Act a rule of absolute immunity even though the Imbler Court acknowledged that the law “on its face, admits of no immunities.”

Imbler’s final justification for its ruling was a “public policy” argument that absolute immunity was necessary to protect “honest prosecutors” from being “constrained” in their actions by the prospect of civil liability. But absolute immunity unnecessarily defends deliberately dishonest prosecutors. The Imbler Court itself acknowledged that absolute immunity “does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty.”

The record of wrongful convictions in which prosecutorial misconduct played a decisive role since Imbler overwhelmingly confirms this unconscionable reality. Over 2,700 wrongful convictions have been recorded with prosecutors committing misconduct in 30% of those cases with the real total likely far exceeding that amount. The most recent national study of prosecutorial that took place over two decades ago found over 11,000 cases of prosecutorial misconduct with over 2,000 cases resulting in reduced sentences, dismissed charges, or reversed convictions. Wrongfully convicted people have spent tens of thousands of years in prison collectively for crimes they did not commit since Imbler and many guilty persons have remained free to commit more crimes. Worse still, prosecutorial misconduct was implicated in over 550 death penalty reversals or 5.6% of all death penalty cases. In federal wrongful conviction cases, according to the National Registry of Exonerations, prosecutors commit misconduct “more than twice as often as police” and “seven times as often as police” in federal white-collar cases. Yet, all prosecutors at the federal level and most at the state level receive more immunity from suit than police officers who receive qualified immunity. Providing qualified immunity to prosecutors, the type of immunity that all executive officials enjoyed when the Reconstruction Congress passed the Civil Rights Act of 1871, would protect honest prosecutors from frivolous suits while at the same time allowing the wrongfully convicted to hold prosecutors accountable for clearly established violations of constitutional rights.

The basic public policy error of the absolute immunity of Imbler is that it shields from liability all deliberately dishonest acts committed by prosecutors. It is one thing to argue that honest mistakes made by prosecutors acting in good faith should be immune from suit, but the Imbler Court took this too far and provided absolute immunity from suit for intentional bad faith acts committed by prosecutors that violate constitutional rights. The Imbler majority argued that prosecutors would be accountable through other means such as criminal liability and professional discipline. But only one prosecutor has ever been jailed for misconduct for a period of just 10 days, far shorter than the nearly 25 years the person whom he helped wrongfully convict spent in prison. Only 4% of prosecutors whose conduct played a role in securing wrongful convictions have been disciplined. One study of over 200 Justice Department cases of prosecutorial misconduct found zero instances of misconduct by federal prosecutors that resulted in disbarment. The public policy results of Imbler’s rule of absolute immunity for prosecutors over the past five decades confirm the old axiom that “absolute power corrupts absolutely.” Absolute immunity is simply too much power for the most powerful people in the U.S. criminal justice system to possess.

Imbler’s reasoning is non-sensical and utterly antithetical to a government “of laws and not of men” in which no official is “so high that he is above the law.” Imbler should be overturned by the Supreme Court. If the Supreme Court does not overturn Imbler, then, as Judge James C. Ho of the Fifth Circuit recently observed, Congress can abolish absolute immunity “anytime it wants to do so” by clarifying that the 1871 Civil Rights Act was never intended to idiosyncratically allow prosecutors to flout the rule of law with impunity.

William Bock is a visiting student at Boston University School of Law and anticipates graduating from the University of Michigan Law School in May 2024.