Private: After 40 Years, Is It Time to Reconsider Absolute Immunity for Prosecutors?

by Bidish Sarma, an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans.

Four decades ago, the U.S. Supreme Court implemented a major, nationwide policy that consolidated prosecutorial authority: it granted prosecutors absolute immunity for acts committed in their prosecutorial role. This decision sheathed prosecutors in protective armor while they pursued criminal convictions through an era of crime-related hysteria, and it eroded one of the few mechanisms available to hold prosecutors accountable. Considering the growing call to acknowledge and address an epidemic of prosecutorial misconduct, now is a critical time to reflect on Imbler v. Pachtman and evaluate whether it holds up to modern-day scrutiny.     

In Imbler, the Supreme Court held that prosecutors are generally entitled to absolute immunity from civil liability under the federal civil rights statute, 42 U.S.C. § 1983, for actions, taken in their role as prosecutors, that may have violated the rights of a criminal defendant. Absolute immunity is exactly what it sounds like—a blanket and unconditional grant of protection from civil liability. A related doctrine, qualified immunity, also protects government officials from liability, but as the Supreme Court explained in Harlow v. Fitzgerald, only if “their conduct does not violate clearly established statutory or constitutional rights . . . .” Put simply, qualified immunity protects government officials who abide by the rules (although the law defines those rules very narrowly). Absolute immunity protects them from civil liability even when they break the rules.

As some on the Imbler Court worried, courts have applied absolute immunity broadly, even foreclosing civil suits in cases where prosecutors intentionally violate their constitutional obligation to turn over exculpatory evidence to defendants as required by Brady v. Maryland.

SCOTUS’s Imbler decision has been critiqued over the years. The opinion turned on two key considerations: (1) the Court’s view of immunities “historically accorded the relevant official at common law;” and (2) “considerations of public policy” underlying that historical rule. The Court’s view about the historical role of absolute immunity for prosecutors has largely been debunked by scholars and by none other than Justice Scalia who, in a concurring opinion joined by Justice Thomas, once observed that “[t]here was, of course, no such thing as absolute prosecutorial immunity when §1983 was enacted.”

Likewise, the public policy rationales that the Court invoked have not withstood the test of time. Below, I evaluate each of these rationales in turn.

Perhaps the most important thing to keep in mind while examining the legitimacy of each rationale is that the primary alternative position is that prosecutors should have qualified immunity rather than absolute immunity. With that firmly in mind, each consideration is addressed below in turn, with special attention paid to developments and lessons from the past 40 years.

(1)   Fear of the Floodgates: “Such suits could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State’s advocate.”         

The idea that prosecutors would be hauled into court for every conviction they obtained is certainly troubling, but unfounded. In Imbler, the Court seemed to suggest that the criminal justice system would grind to a halt if prosecutors could be subjected to civil suits because they would spend more time defending themselves in civil court than prosecuting defendants in criminal court. Or perhaps the justices were worried that the judicial system would be clogged with thousands of lawsuits. Regardless, Imbler glossed over the fact that courts have long had doctrines in place to deal with these sorts of concerns. Frivolous lawsuits, when they are actually filed, get dismissed without anybody “breaking a sweat.”

Moreover, in 1994 the Supreme Court altered the § 1983 landscape considerably. In Heck v. Humphrey, the Court ruled that a civil suit “to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid” was not cognizable under the statute unless the plaintiff could prove “that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” In other words, a defendant basically must prevail in proving his conviction wrongful or his trial unfair in criminal court before he can even attempt to file a lawsuit under § 1983. Needless to say, the Heck “favorable termination” doctrine serves to drastically limit the number of viable lawsuits. With Heck in place, the idea that a shift from absolute immunity to qualified immunity would generate more litigation than the system can tolerate seems far-fetched.

(2)   Other Avenues for Prosecutorial Accountability Suffice: “[A] prosecutor stands perhaps unique . . . in his amenability to professional discipline by an association of his peers.”

Two alternatives for redressing prosecutor wrongdoing beyond civil liability that the Court mentioned in Imbler include disciplinary sanctions issued by state disciplinary bodies and, in extreme cases, criminal prosecutions. But, the Court’s prediction that these other methods for accountability would suffice looks like the prediction that Y2K would cause a global technological meltdown. In a word: wrong.

Study after study has documented the ways that professional disciplinary organizations have failed to contribute to prosecutorial accountability. These studies effectively cover every decade since Imbler came down. A 1987 eye-opening piece revealed that in a six year period disciplinary sanctions for prosecutors who suppressed evidence numbered in the single digits. In 1999, the Chicago Tribune examined 381 cases in which courts overturned homicide convictions due to prosecutors concealing evidence or presenting false testimony and found that none of the prosecutors involved faced criminal sanctions or disbarment. In 2010, the Northern California Innocence Project’s review found that the California State Bar “publicly disciplined only one percent of the prosecutors in the 600 cases in which the courts found prosecutorial misconduct.”

Meanwhile, as one scholar-commentator has noted, “[w]hile [some] state penal laws contemplate the prosecution of prosecutors who violate Brady, they are so infrequently enforced that the possibility of prosecution barely warrants a mention.” Moreover, one recent article analyzed disciplinary practices in three New York prosecutors’ offices and found that “Brady and related due process violations committed by public prosecutors are tolerated by their respective offices, which almost never discipline or sanction offenders.” A ProPublica analysis further supported these findings, revealing that only one prosecutor was punished internally by superiors in more than two dozen instances of prejudicial misconduct and that several, instead, received promotions and raises.

(3)   Courts May Hand Down Unfair Rulings for Fear of Making Prosecutors Financially Liable: “This focus [on the fairness of the proceedings] should not be blurred by even the subconscious knowledge that a post-trial decision in favor of the accused might result in the prosecutor's being called upon to respond in damages for his error or mistaken judgment.” 

Oddly, the Court in Imbler worried that a prosecutor’s prospective personal liability for wrongdoing may “subconscious[ly]” influence a court’s willingness to grant a criminal defendant relief on a claim of prosecutorial misconduct. This was a remarkably honest and revealing assessment of judicial decision-making. Yet, it does not accord with the Court’s simultaneous confidence in alternative methods of accountability. Professional discipline and criminal liability could be personally and professionally devastating, so why would a judge assume it would be uniquely bad for a prosecutor to be on the hook financially for their misconduct?

The Supreme Court also failed to articulate how judicial knowledge that absolute immunity applied would relieve the right amount of pressure from courts while qualified immunity, on the other hand, would unleash a wave of unfair decisions handed down to protect prosecutors from speculative financial ruin. Perhaps the Court—in a moment of ironic candor—was on to something about how judges often feel the need to protect prosecutors. But, it supplied no evidence that the policy decision it selected was even marginally better than the alternative.

(4)   Civil Suits Will Compromise Prosecutorial Independence: “[H]arassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.”       

One of the main justifications for absolute immunity is that it protects the independence of government officials who enjoy the privilege. While this justification appears persuasive for officials in the legislature and the judiciary, three factors undercut the idea that it is necessary to protect prosecutors.

First, qualified immunity doctrine has become significantly more protective since the Court decided Imbler. One commentator has explained that “[q]ualified immunity in the 1970s focused on the official’s state of mind, a question to be resolved at trial. Over the years, the Court had transformed qualified immunity into an objective test that shielded officials from any involvement in litigation as long as their conduct did not violate a ‘clearly established’ right.” This change combines with other doctrinal developments to culminate in Professor Erwin Chemerinsky’s observation that “the [Supreme] [C]ourt has made it much harder for plaintiffs to overcome qualified immunity and hold government officers liable for constitutional violations.” For this reason, it is difficult to believe that qualified immunity somehow fails to prevent the bulk of “harassment by unfounded litigation” upon which the Court premised its selection of absolute immunity.    

Second, prosecutors are now widely indemnified. Even if they were to be found liable, they would not bear the financial burden personally, their employers—the government—would. Forty years ago, just twenty states had indemnification laws that would cover § 1983 liability. Since then, states that already had indemnification laws on the books have largely expanded their scope, and “at least twenty-five more states and the District of Columbia have added their own indemnification statutes, protecting government employees, including prosecutors, from the threat of personal liability that the Imbler Court so feared.”

Third, the heads of most District Attorneys’ offices are elected officials. There are valid reasons to be concerned about a system that elects prosecutors, and the reality of prosecutorial elections calls into question the Imbler Court’s conclusion that prosecutors are independent government officials whose decisions do not account for public opinion and should be shielded from liability.            

Absolute immunity for prosecutors did not make much sense in 1976, and it makes no sense today. Revisiting the doctrine does not entail a constitutional change; instead, the Court simply needs to update its view on absolute immunity’s applicability (or correct its interpretation of the federal statute). Increasingly, we have recognized that prosecutorial discretion in charging and plea bargaining invisibly resides at the center our criminal justice system. If we are serious about reducing mass incarceration or, more modestly, improving the system’s fairness, we need accountability for the actors who have been authorized to charge, try, and convict. To this point, there has been little more than moral hazard and prosecutorial impunity.