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Reconsidering Absolute Prosecutorial Immunity
Brigham Young University Law Review, 2005 by Johns, Margaret Z
I. INTRODUCTION
While certainly the vast majority of prosecutors are ethical lawyers engaged in vital public service, the undeniable fact is that many innocent people have been wrongly convicted of crimes as a result of prosecutorial misconduct.1 Prosecutors are rarely disciplined or criminally prosecuted for their misconduct,2 and the victims of this misconduct are generally denied any civil remedy because of prosecutorial immunities.3
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In litigation under the major federal civil rights statute, 42 U.S.C. § 1983, two kinds of immunity apply to prosecutors: absolute immunity and qualified immunity. The immunity that applies depends on the function the prosecutor was performing at the time of the misconduct.4 When prosecutors act as advocates, absolute immunity applies.5 Under absolute immunity, prosecutors are immunized even when the plaintiff establishes that the prosecutor acted intentionally, in bad faith, and with malice.6 When prosecutors act as investigators or administrators, qualified immunity applies.7 Under qualified immunity, prosecutors are immunized unless the misconduct violated clearly established law of which a reasonable prosecutor would have known.8 This functional approach to prosecutorial immunity has created confusion and conflict in the lower courts.9 Together, these immunities deny civil remedies to innocent people who have been wrongly convicted of crimes as a result of prosecutorial misconduct. While qualified immunity strikes a balance between providing a remedy for egregious misconduct and protecting the honest prosecutor from liability,10 absolute immunity should be reconsidered.
In adopting absolute prosecutorial immunity, the Supreme Court relied on historical understandings and contemporary policies.11 Both justifications are dubious. According to the Court's interpretation of history, Congress intended to retain wellestablished common-law immunities when it adopted § 1983 in 1871.12 But even assuming Congress intended to retain the existing common-law immunities, absolute prosecutorial immunity was not the established law in 1871.13 In fact, the first case affording prosecutors absblute immunity was not decided until 1896.14 Congress could not have intended to retain this immunity when it adopted § 1983 because it simply did not exist at that time. Rather, in 1871 prosecutors would have been accorded qualified immunity, not absolute immunity.15 Thus, the historical argument for absolute prosecutorial immunity is unfounded.
The policy reasons supporting absolute prosecutorial immunity are equally untenable. The Court has justified absolute prosecutorial immunity on the grounds that the threat of civil liability would undermine vigorous prosecutorial performance, constrain independent decisionmaking, and divert time and resources to defending frivolous litigation.16 In short, in the Court's view, exposing prosecutors to civil liability would burden and undermine the functioning of the criminal justice system.
But contrary to this policy argument, absolute immunity is not needed to prevent frivolous litigation or to protect the judicial process. Absolute immunity protects the dishonest prosecutor but is unnecessary to protect the honest prosecutor since the requirements for establishing a cause of action and the defense of qualified immunity will protect all but the most incompetent and willful wrongdoers.17 Specifically, under a qualified immunity regime, the victim of misconduct can only maintain an action by defeating the criminal charges18 and proving that the prosecutor violated clearly established constitutional law19 with a culpable state of mind.20 And the qualified immunity defense has been strengthened to provide a complete defense at the earliest stages of litigation for all but the most inexcusable misconduct.21 Thus, qualified immunity provides prosecutors sufficient protection to ensure that they perform their functions independently, without undue timidity or distraction.22 In short, in all cases qualified immunity for prosecutors would provide sufficient protection to the criminal justice system, while providing a necessary remedy for prosecutorial misconduct.23
In addition to protecting the dishonest prosecutor at the expense of the innocent victim, absolute immunity violates public policy for other reasons as well. Absolute immunity frustrates the purpose of civil rights legislation by failing to deter frequent and egregious misconduct.24 It also hinders the development of constitutional standards and the implementation of structural solutions for systemic problems.25 Prosecutorial liability-with the safeguard of qualified immunity to prevent vexatious litigation-is necessary to ensure the integrity of the criminal justice system.26
Moreover, not only is the doctrine of absolute immunity unsupported by history and contrary to public policy, but its practical application is also unnecessarily confusing and unworkable.27 It has produced circuit splits on at least four distinct issues, which, surprisingly, have not been addressed in the scholarly commentary. First, the circuits are split on -whether the criminal defendant's due process rights are violated when a prosecutor coerces a witness to testify falsely.28 second, they are divided on whether a prosecutor is entitled to absolute immunity when she fabricates evidence or coerces a witness to testify falsely and then uses that tainted evidence in a judicial proceeding.29 Third, the circuit decisions have taken different approaches to the probable cause requirement for absolute immunity announced in Buckley v. Fitzsimmons.30 Finally, they are split on how to determine whether a prosecutor is acting as an investigator or advocate when she engages in misconduct after probable cause has been met.31 In Justice Thomas's opinion, the Court should review the current immunity law both to consider a remedy for egregious misconduct and also to resolve the current conflicts in the courts of appeals.32
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