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Reconsidering Absolute Prosecutorial Immunity
Brigham Young University Law Review, 2005 by Johns, Margaret Z
The justification for absolute immunity is that civil rights litigation will chill the prosecutorial function and unduly burden the government. But the evidence of prosecutorial misconduct resulting in wrongful convictions529 suggests that we have sacrificed the integrity of our criminal justice system for the sake of efficiency. This corruption of our criminal justice system violates public policy. On the other hand, the elimination of absolute immunity would serve public policy. As Justice White wrote, "one would expect that the judicial process would be protected and indeed its integrity enhanced by denial of immunity to prosecutors who engage in unconstitutional conduct."530 Prosecutors must obey their solemn obligation to see that justice is done. To insure the integrity of our system of justice, those who violate their duty by trampling on clearly established constitutional rights must be held accountable.
2. Absolute immunity denies victims a remedy
The purpose of § 1983 is to provide victims of government misconduct a remedy.531 The Supreme Court has explained that the central purpose of the statute is to "give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's abuse of his position."532 Absolute immunity defeats that purpose. As Justice White explained, extending "absolute immunity to any group of state officials is to negate pro tcmto the very remedy which it appears Congress sought to create."533 The Court has recognized that absolute immunity leaves victims uncompensated and justice unfulfilled. As the Imbler Court stated, "[T]Ms immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty."534
The enormity of the constitutional injury cries out for a remedy. Innocent people have had their lives ruined by deliberate and egregious prosecutorial misconduct. Consider the innocent people who have spent years in prisons, many on death row, for crimes they did not commit. Consider Thomas Lee Goldstein, who spent twenty-four years in prison;535 John Tennison, who spent thirteen years in prison;536 Ellen Reasonover, who spent sixteen years in prison;537 or any of the hundreds of other innocent people who have been wrongfully convicted because of prosecutorial misconduct.
In our legal system, intentional wrongdoers are held civilly liable to those they injure. As one judge explained, "Privileges and immunities against responsibility are an anathema for a democratic society and most appropriately correctable by civil damage responsibility."538
3. Absolute immunity Mows misconduct that is unchecked by other mechanisms
In addition to compensating victims, § 1983 liability serves as a deterrent to government misconduct. According to Justice White, "It should hardly need stating that, ordinarily, liability in damages for unconstitutional or otherwise illegal conduct has the very desirable effect of deterring such conduct. Indeed, this was precisely the proposition upon which § 1983 was enacted."539 Absolute immunity frustrates this deterrent effect.
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