Category: Criminal Law
The Idiosyncrasies of Imbler: Absolute Immunity for Prosecutors Makes Absolutely No Sense
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.
Revenge Porn and Deep Fake Technology: The Latest Iteration of Online Abuse
Revenge Porn
The rise of the digital age has brought many advancements to our society. But it has also enabled new forms of online harassment and abuse. Revenge porn (otherwise referred to as image-based sexual abuse or nonconsensual pornography) is a type of gender-based abuse in which sexually explicit photos or videos are shared without the consent of those pictured. The prevalence of cell phones and user-generated content websites has turned revenge porn into a common phenomenon. While some legislation has been passed to meet this rising threat, technology has evolved to the point that many of these statutes no longer meet the challenge of the current environment. State legislators have left wide loopholes in their revenge porn statutes, and the rise in Artificial Intelligence (AI) has created a new brand of revenge porn missing entirely from state statutes. Furthermore, the federal government has so far failed to make revenge porn in any form a criminal offense.
As of late 2022, forty-eight states and D.C. have enacted some form of revenge porn legislation (the two states that have yet to enact formal revenge porn statutes are Massachusetts and South Carolina). Some of these statutes criminalize revenge porn, while others allow victims to recover monetary damages under existing civil causes of action. While it is encouraging to see so many states act, efforts at the federal level have repeatedly encountered hurdles. Each time, those efforts stalled due to First Amendment concerns. Representative Jackie Speier (D-CA) crafted the Ending Nonconsensual Online user Graphic Harassment (ENOUGH) Act in 2017 to make revenge porn a federal crime, but it died in committee and expired at the end of the 115th Congress. In 2018, Senator Ben Sasse (R-NE) introduced the Malicious Deep Fake Prohibition Act, criminalizing the creation or distribution of all fake electronic media records that appear realistic (essentially, banning deep fake technology altogether). The act expired at the end of 2018 with no cosponsors. In the past four years, Representative Yvette D. Clarke (D-NY) introduced the DEEP FAKES Accountability Act twice – the first in 2019 (H.R. 3230, which died in committee at the end of 2020) and the second in 2021 (H.R. 2395, which again died in committee at the beginning of 2023). In February 2023, Senators Amy Klobuchar (D-MN) and John Cornyn (R-TX) introduced to the Senate Judiciary Committee the Stopping Harmful Image Exploitation and Limiting Distribution (SHIELD) Act (utilizing text originally introduced by Rep. Jackie Speier). Though it should be noted that the proposed SHIELD Act would not criminalize the rising threat of AI-generated pornographic images.
Rise of Deep Fake Technology
What began as sharing consensually obtained images beyond their intended viewers has evolved into more insidious and complex crimes. Hackers have started accessing private devices to steal intimate photos for the purpose of blackmailing victims with the threat of sharing those photos online. And the rise of Artificial Intelligence (AI) has created a new type of revenge porn: deep fakes.
We have now entered a new phase of exploitation: AI-manufactured nude photos. Technology users can now utilize the photos of real people to create pornographic images and videos. There are two types of AI-generated images that relate to the problem of revenge porn: “deep fakes” and “nudified” images. Deep fakes are created when an AI program is “trained” on a reference subject. Uploaded reference photos and videos are “swapped” with target images, creating the illusion that the reference subject is saying or participating in actions that they never have. U.S. intelligence officials acknowledged deep fake technology in their annual “worldwide threat assessment” for its ability to create convincing (but false) images or videos that could influence political campaigns. In the context of revenge porn, pictures and videos of a victim can be manipulated into a convincing pornographic image or video. AI technology can also be used to “nudify” existing images. After uploading an image of a real person, a convincing nude photo can be generated using free applications and websites. While some of these apps have been banned or deleted (for example, DeepNude was shut down by its creator in 2019 after intense backlash), new apps pop up in their places.
This technology will undoubtedly exacerbate the prevalence and severity of revenge porn – with the line of what’s real and what’s generated blurring together, folks are more at risk of their image being exploited. And this technology is having a disproportionate impact on women. Sensity AI tracked online deep fake videos and found that 90%-95% of them are nonconsensual porn, and 90% of those are nonconsensual porn of women. This form of gender-based violence was recently on display when a high-profile male video game streamer accessed deep fake videos of his female colleagues and displayed them during a live stream.
This technology also creates a new legal problem: does a nude image have to be “real” for a victim to recover damages? In Ohio, for instance, it is a criminal offense to knowingly disseminate “an image of another person” who can “be identified form the image itself or from information displayed in connection with the image and the offender supplied the identifying information” when the person in the image is “in a state of nudity or is engaged in a sexual act.” It is currently unclear if an AI-generated nude image constitutes “an image of another person...” under the law. Cursory research did not unearth any lawsuits alleging the unauthorized use of personal images in AI-generated pornography. In fact, after becoming a victim to deep fake pornography herself, famed actress Scarlett Johansson told the Washington Post that she “thinks [litigation is] a useless pursuit, legally, mostly because the internet is a vast wormhole of darkness that eats itself.” However, in early 2023, artists have filed a class-action lawsuit against companies utilizing Stable Diffusion for copyright violations. This lawsuit may signal that unwilling participants in AI-generated content may could find relief in the legal system.
Virginia State Capitol, 1785
Architects: Thomas Jefferson & Charles-Louis Clérisseau
Some states have tackled head-on the issue of deep fake technology as it relates to revenge porn and sexual exploitation. In Virginia, it is a Class 1 misdemeanor for the unauthorized dissemination or selling of a sexually explicit video or image of another person created by any means whatsoever (emphasis added). The statute goes on to state that “another person” includes a person whose image was used in creating, adapting, or modifying a video or image with the intent to depict an actual person and who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic. But this Virginia law is not without fault. The statute states that the image must be of a person’s genitalia, pubic area, buttocks, or breasts. Therefore, an image of a person in a compromising position or that is merely sexually suggestive would likely not be covered by this statute.
Current Remedies are Insufficient
Revenge porn victims often bring tort claims, which may include invasion of privacy, intrusion on seclusion, intentional/negligent infliction of emotional distress, defamation, and others. Specific revenge porn statutes also allow for civil recovery in some states. But revenge porn statutes have flaws. In an article authored by Professor Rebecca Defino, there are three commonly cited critiques to revenge porn statutes. The first is that many of these statutes have a malicious intent or illicit motive requirement, which requires prosecutors to prove a particular mens rea. (921; see the aforementioned Ohio statute; Missouri criminal statute; Okla. Stat. tit. 21, § 1040.13b(B)(2)). Second, many revenge porn statutes include a “harm” requirement, which is difficult to prove and requires victims to expose even more of their private life in a public arena. (921). And finally, the penalties are weak. (921). And even if a victim wins a case against a perpetrator, jail time for the perpetrator or small monetary settlements don’t provide victims what they often really desire – for their images to be taken off the Internet. The Netflix series called The Most Hated Man on the Internet shows the years long and deeply expensive journey to remove photos from a revenge porn website. While state revenge porn laws may assist victims with finding recourse, the process of removing images post-conviction can still be traumatizing and time-consuming.
While deep fake legislation is considered (or stalled) through state and federal governments, the private sector may be able to provide some solutions. A tool called “Take It Down” is funded by Meta Platforms (the owner of Facebook and Instagram) and operated by the National Center for Missing and Exploited Children. The site allows anonymous individuals to create a digital “fingerprint” of real or deepfake image. That “fingerprint” is then uploaded to a database, which certain tech companies (including Facebook, Instagram, TikTok Yubo, OnlyFans, and Pornhub) have agreed to participate in, that will remove that image from their services. This technology is not without its own limitations. If the image is on a non-participating site (currently, Twitter has not committed to the project) or is sent via an encrypted platform (like WhatsApp), the image will not be taken down.
Additionally, if the image has been cropped, edited with a filter, turned into a meme, had an emoji added, or altered in other ways, the image is considered new and requires its own “fingerprint.”
While these are not easy problems to solve, the federal government can and should criminalize revenge porn, including AI-generated revenge porn. A federal statute would provide a stronger disincentive to create pornographic deep fakes through the threat of investigations by the FBI and prosecution by the Department of Justice. (927-928). Law professor Rebecca A. Delfino drafted the Pornographic Deepfake Criminalization Act, which makes the creation or distribution of pornographic deepfakes unlawful and allows the government to impose jail time and/or fines on defendants found guilty of the crime. (928-930). Perhaps more impactfully, the proposed act allows courts to issue the destruction of the image, compel content providers to remove the image, issue an injunction to prevent further distribution of the deep fake image, and award monetary damages to the victim. (930). The law is an imperfect tool in fighting against revenge porn and AI-generated pornographic deep fakes. But to the extent that legislators can provide additional support to victims, it is their obligation to do so.
Kara Kelleher graduated from Boston University School of Law with a juris doctor in May 2023.
Decriminalize Everything? Oregon’s New Drug Laws
In November 2020, Oregon voters overwhelmingly decided to decriminalize the possession of small amounts of almost all hard drugs. Measure 110 went into effect on February 1, 2021. The legislation took a groundbreaking, albeit controversial step by reclassifying the possession of hard drugs. Offenses that were formally criminal misdemeanors, subjecting citizens to arrest, fines, and jail time, are now mere civil violations, subject only to a $100 civil citation, which can be avoided by participation in health assessments.
The measure makes possession of certain controlled substances a noncriminal violation so long as the possession is less than a specified amount:
- 1 gram of heroin;
- 1 gram of MDMA;
- 2 grams of methamphetamine;
- 40 units of LSD;
- 12 grams of psilocybin;
- 40 units of methadone;
- 40 pills of oxycodone; and
- 2 grams of cocaine.
The measure further reduces the charge from a felony to a misdemeanor for simple possession of substances where the amount is:
- 1-3 grams of heroin;
- 1-4 grams of MDMA;
- 2-8 grams of methamphetamine; and
- 2-8 grams of cocaine.
As noted by Oregon State Policy Capt. Timothy Fox, “possession of larger amounts of drugs, manufacturing and distribution are still crimes.”
The law was predicted to have a drastic impact on yearly convictions for possession of controlled substances. The Oregon Criminal Justice Commission estimated yearly convictions would decrease by a staggering 90.7%. The legislation comes approximately 50 years after President Richard Nixon famously declared his War on Drugs. While the drug war has been criticized as a racist, inhumane failure, Oregon’s recent legislation marks a significant, perhaps radical step towards restructuring the deeply flawed systems instituted over the past half century. This article will first explore the main arguments on either side of the debate regarding the wisdom and efficacy of Measure 110. Later, it will discuss some cautious conclusions and the broader implications of Measure 110 and how it might fit within the larger, national public debate regarding drug decriminalization.
The Promise
Proponents of Measure 110 see it as a much overdue remedial measure to a disastrous drug war that has done far more harm than good. Kassandra Frederique, executive director of the Drug Policy Alliance (“DPA”), remarked on its passing, “Today, the first domino of our cruel and inhuman war on drugs has fallen, setting off what we expect to be a cascade of other efforts centering health over criminalization.” Supporters highlight the wisdom of shifting from a drug policy model that focuses on punishment, incarceration and criminalization to a more progressive model that sees drug use and addiction as a disease to be treated rather than a crime to be punished. From this perspective, substance use is better addressed by providing access to physical and mental healthcare and removing the stigmatization and obstacles that traditionally accompany drug charges such as the difficulty landing jobs and finding housing. “Criminalization keeps people in the shadows. It keeps people from seeking out help, from telling their doctors, from telling their family members that they have a problem,” says Mike Schmidt, district attorney for Oregon’s most populated county.
A key provision of Measure 110 earmarks a portion of cannabis tax revenues for improving and expanding the state’s treatment system, along with drug safety education and services. To date, Oregon has generated hundreds of millions of dollars for this purpose, distributed to at least 70 different organizations in 26 different counties, aimed primarily at helping providers expand services for people with low incomes and without insurance. This kind of investment is clearly a necessary part of shifting from a model oriented around the criminal justice system to a model oriented around healthcare. In addition, proponents of Measure 110 emphasize that decriminalization will ease racial disparities in drug arrests. For example, African American Oregonians are 2.5 times as likely to be convicted of a possession felony as whites. Without delving into the reasons behind this disparity, by reducing possession convictions overall decriminalization will reduce the negative effects on minority communities. Indeed, according to Theshia Naidoo, managing director for legal affairs at DPA, although the “information is not fully available yet . . . from the data we can see, there have been no drug possession arrests in the state since the decriminalization took effect.”
The Concerns
One major area of concern is implementation. Detractors question whether Oregon’s treatment system has the resources and functionality required to support such a fundamental shift away from the criminal justice system as the primary model for addressing drug use and executing drug policy. Are the resources provided by Measure 110 adequate to handle a corresponding substantial influx of people seeking treatment? Unfortunately, It is likely still too early to tell; but shifting from the criminal justice to the health care system is undoubtedly not going to happen overnight.
Relatedly, critics question whether a civil citation akin to a parking ticket will provide the adequate impetus and resources for users to seek help. Mike Marshall, co-founder and director of Oregon Recovers, worries that “the only way to get access to recovery services is by being arrested or interacting with the criminal justice system. Measure 110 took away that pathway.” Perhaps the threat of the criminal justice system provides users with the necessary motivation to seek treatment and the threat of a citation and potential fine is lacking in some critical respect. Decriminalization may ultimately limit access to treatment as fewer offenders are pushed into court-ordered programs. Decriminalization advocates counter that the criminal justice system’s pathway to treatment is flawed, biased and ineffectual, and point out that “on average a huge percentage [approximately 70 to 80 percent in Multnomah county] of those convicted of drug possession in the state were rearrested within three years.” Regardless, there is shockingly little data to determine what programs work best and no agreed upon set of metrics or benchmarks to judge program efficacy, either in Oregon or nationally.
Oregon Capitol
Salem, 1938
The Verdict
Unfortunately, it’s likely too early to fairly assess whether Oregon’s remarkable drug policy transformation can be deemed a success. Part of this is because the transformation is still underway. Supporters of decriminalization point to Portugal as a reform model, which took more than two years to transition from a system centered around the criminal justice system to a healthcare model. Covid-19 is a another complication; Oregon’s detox clinics, recovery-focused nonprofits, and impatient facilities have been battered by the pandemic and related workforce shortages.
Nonetheless, Oregon’s bold efforts have seemingly inspired state level decriminalization efforts across the country as lawmakers in Maine, Massachusetts, Rhode Island, and Vermont have all proposed similar decriminalization bills this year. The takeaway seems to be that decriminalization is a wise policy so long as recovery services are widely available. As Reginald Richardson, director of Oregon’s Alcohol and Drug Policy Commission, put it, “the use of criminal justice becomes a necessary proxy when you don’t have effective behavioral health services.” Overall, this kind of major shift in policy is daunting and will always involve overcoming unforeseen challenges, although hopefully not always to the extent of a global pandemic. Still, the Nixon-era drug policies has largely been an abject failure, and states like Oregon ought to be commended for trying, however imperfectly, to improve their approach.
Alexander Gatter anticipates graduating from Boston University School of Law in May 2023.
