{"id":1684,"date":"2024-01-26T16:38:15","date_gmt":"2024-01-26T21:38:15","guid":{"rendered":"https:\/\/sites.bu.edu\/dome\/?p=1684"},"modified":"2024-01-26T16:39:24","modified_gmt":"2024-01-26T21:39:24","slug":"the-idiosyncrasies-of-imbler-absolute-immunity-for-prosecutors-makes-absolutely-no-sense","status":"publish","type":"post","link":"https:\/\/sites.bu.edu\/dome\/2024\/01\/26\/the-idiosyncrasies-of-imbler-absolute-immunity-for-prosecutors-makes-absolutely-no-sense\/","title":{"rendered":"The Idiosyncrasies of Imbler: Absolute Immunity for Prosecutors Makes Absolutely No Sense"},"content":{"rendered":"

Supreme Court Justice Robert H. Jackson once observed<\/a> that: \u201cThe prosecutor has more control over life, liberty, and reputation than any other person in America.\u201d But with great power does not necessarily come great responsibility. When prosecutors present fabricated evidence<\/a> and false testimony<\/a>, make false statements<\/a>, suborn or coerce perjury<\/a>, conspire with a judge<\/a> to predetermine the outcome of a case, withhold exculpatory evidence in a death penalty case<\/a>, destroy exculpatory evidence<\/a>, deny a speedy trial<\/a>, and even violate<\/a> a citizen\u2019s 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<\/a> of Imbler v. Pachtman<\/em>. 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\u2019s wrongful conviction. Yet, the Supreme Court held that Pachtman had absolute immunity from Imbler\u2019s civil suit. The Imbler <\/em>Court found support for absolute prosecutorial immunity in the \u201ccommon law,\u201d \u201chistory,\u201d and \u201cpublic policy.\u201d Yet nearly half a century after Imbler<\/em>, neither the common law, history, nor sound public policy provide continued support for absolute prosecutorial immunity.<\/p>\n

The Imbler<\/em> Court argued it was \u201cwell settled<\/a>\u201d that absolute immunity for prosecutors was \u201cthe common law rule.\u201d In support of this claim, the Court cited<\/a> 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<\/a> as a public prosecutor. Rather, private parties<\/a> \u201cprosecuted criminal wrongs which they suffered.\u201d The public prosecutor was a \u201chistorical latecomer<\/a>\u201d who \u201cdid not emerge<\/a>\u201d in England until the \u201cthe Office of Director of Public Prosecutions\u201d was established in 1879.<\/p>\n

Even after public prosecution began in the U.S., as Justice Scalia recognized in his 1997 concurrence<\/a> in Kalina v. Fletcher<\/em>, there was \u201cno such thing as absolute prosecutorial immunity.\u201d Rather, prosecutors could be sued<\/a> for malicious prosecution. For example, in 1854, the Massachusetts Supreme Judicial Court held<\/a> that a prosecutor accused of lying did not have absolute immunity and could be prosecuted for \u201cmalicious\u201d acts. The first U.S. court case<\/a> granting prosecutors absolute immunity was handed down by the Indiana Supreme Court in 1896. That decision, which \u201cbecame the clear majority rule<\/a>\u201d across the U.S. in the decades after it was decided, mistakenly<\/a> 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<\/a>, Imbler<\/em> was premised upon \u201ca common-law tradition\u201d that \u201cwas not even a logical extrapolation from then-established immunities.\u201d 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<\/a> \u201cthe equivalent of qualified immunity\u201d making them liable to suit for malicious acts.<\/p>\n

\"\"<\/a>The Imbler <\/em>Court also made a historical argument in favor of absolute immunity for prosecutors, claiming<\/a> that the Reconstruction Congress did not intend for the 1871 Civil Rights Act to be read to mean what it plainly says<\/a> that \u201cevery person\u201d acting under color of law who violates a U.S. citizen\u2019s constitutional rights is subject to suit. Rather, according to the Imbler <\/em>majority, when the Reconstruction Congress referred to \u201cevery person\u201d they did not mean<\/a> 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<\/a>, Blackmun<\/a>, Brennan<\/a>, Scalia<\/a>, and Thomas<\/a> have all since ridiculed Imbler\u2019s<\/em> revisionist history. Moreover, the 1871 Civil Rights Act was passed in part to remedy<\/a> \u201cSouthern prosecutors\u2019 aggressive abuse of the judicial process\u201d to \u201cthwart Reconstruction and the enforcement of federal civil rights laws.\u201d In just one Southern state, over 3,000<\/a> Union soldiers were prosecuted. The Civil Rights Act exposed<\/a> Southern prosecutors to civil liability to prevent federal officials from being subjected to malicious and baseless prosecutions \u201cfor arresting southern violators of the Civil Rights Acts.\u201d The Imbler <\/em>Court did not<\/a> consider this history, refusing to construe the text of the Civil Rights Act \u201cas stringently as it reads,\u201d and instead implanting into the heart of the Civil Rights Act a rule of absolute immunity even though the Imbler<\/em> Court acknowledged that the law \u201con its face, admits of no immunities.\u201d<\/p>\n

Imbler<\/em>\u2019s final justification<\/a> for its ruling was a \u201cpublic policy\u201d argument that absolute immunity was necessary to protect \u201chonest prosecutors\u201d from being \u201cconstrained\u201d in their actions by the prospect of civil liability. But absolute immunity unnecessarily defends deliberately dishonest prosecutors. The Imbler <\/em>Court itself acknowledged<\/a> that absolute immunity \u201cdoes leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty.\u201d<\/p>\n

The record of wrongful convictions in which prosecutorial misconduct played a decisive role since Imbler <\/em>overwhelmingly confirms this unconscionable reality. Over 2,700 wrongful convictions have been recorded with prosecutors committing misconduct in 30%<\/a> of those cases with the real total likely far exceeding<\/a> that amount. The most recent national study of prosecutorial that took place over two decades ago found over 11,000<\/a> cases of prosecutorial misconduct with over 2,000<\/a> cases resulting in reduced sentences, dismissed charges, or reversed convictions. Wrongfully convicted people have spent tens of thousands of years<\/a> in prison collectively for crimes they did not commit since Imbler <\/em>and many guilty persons have remained free to commit more crimes. Worse still, prosecutorial misconduct was implicated<\/a> 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<\/a> \u201cmore than twice as often as police\u201d and \u201cseven times as often as police\u201d in federal white-collar cases. Yet, all prosecutors at the federal level<\/a> and most<\/a> 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<\/a> when the Reconstruction Congress passed the Civil Rights Act of 1871, would protect<\/a> 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.<\/p>\n

The basic public policy error of the absolute immunity of Imbler<\/em> 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<\/em> 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 <\/em>majority argued<\/a> that prosecutors would be accountable through other means such as criminal liability and professional discipline. But only one<\/a> prosecutor has ever been jailed for misconduct for a period of just 10 days<\/a>, far shorter than the nearly 25 years<\/a> the person whom he helped wrongfully convict spent in prison. Only 4%<\/a> 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<\/a> instances of misconduct by federal prosecutors that resulted in disbarment. The public policy results of Imbler\u2019s<\/em> rule of absolute immunity for prosecutors over the past five decades confirm the old axiom<\/a> that \u201cabsolute power corrupts absolutely.\u201d Absolute immunity is simply too much power for the most powerful people in the U.S. criminal justice system to possess.<\/p>\n

Imbler\u2019s<\/em> reasoning is non-sensical and utterly antithetical to a government \u201cof laws and not of men<\/a>\u201d in which no official<\/a> is \u201cso high that he is above the law.\u201d Imbler<\/em> should be overturned by the Supreme Court. If the Supreme Court does not overturn Imbler<\/em>, then, as Judge James C. Ho of the Fifth Circuit recently observed<\/a>, Congress can abolish absolute immunity \u201canytime it wants to do so\u201d by clarifying that the 1871 Civil Rights Act was never intended to idiosyncratically allow prosecutors to flout the rule of law with impunity.<\/p>\n

\"\"<\/a>William Bock<\/strong> is a visiting student at Boston University School of Law and anticipates graduating from the University of Michigan Law School in May 2024.<\/p>\n","protected":false},"excerpt":{"rendered":"

Supreme Court Justice Robert H. Jackson once observed that: \u201cThe prosecutor has more control over life, liberty, and reputation than any other person in America.\u201d 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 […]<\/p>\n","protected":false},"author":23310,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[410,4,6],"tags":[],"_links":{"self":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts\/1684"}],"collection":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/users\/23310"}],"replies":[{"embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/comments?post=1684"}],"version-history":[{"count":5,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts\/1684\/revisions"}],"predecessor-version":[{"id":1691,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts\/1684\/revisions\/1691"}],"wp:attachment":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/media?parent=1684"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/categories?post=1684"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/tags?post=1684"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}