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Reconsidering Absolute Prosecutorial Immunity
Brigham Young University Law Review, 2005 by Johns, Margaret Z
In addition to fostering the continuing evolution of constitutional doctrine, individual civil rights actions bring about structural reforms to systemic problems.555 In some cases, these actions result in broad injunctive relief regulating government conduct. School desegregation and prison reform cases are notable examples.556 For example, while the Court avoids undue involvement in prison administration, it has recognized that the Eighth Amendment provides fundamental constitutional protections including an obligation to provide medical care to sick and injured prisoners.557 Where prisons fall below the constitutional minimum, injunctive relief is available to ensure humane treatment is provided.558
Even without injunctive relief, individual actions for money damages can set national standards. As Justice Blackmun explained in refuting the argument that individual prisoner cases unduly burden the federal courts, "I suspect that improvements in prison conditions of recent years are traceable in large part, and perhaps primarily, to actions under ยง 1983 challenging those conditions."559 For example, a recent Supreme Court decision held that restraining a prisoner by handcuffing him to a hitching post for up to seven hours in the hot sun violated the Eighth Amendment.560 While the plaintiff filed the case as an individual damage action, this decision sends a national message about the constitutional treatment of prisoners. Thus, individual damage actions serve to set constitutional standards and correct constitutional abuses at a national level. As one recent article concluded, "most of the rights regulating a government official's discretion to inflict injury upon individuals have been established in constitutional tort actions."561
Absolute immunity stymies the development of constitutional law since it requires courts to dismiss actions at the earliest stages without regard to the merits of the plaintiffs constitutional claim.562 For this reason, it tends to freeze the law in a state of perpetual uncertainly. To the extent that the frequency of prosecutorial misconduct might be attributable to honest ignorance, qualified immunity should be adopted so that legal standards may be developed and enforced to protect constitutional rights. For example, in Ka-lina- v. Fletcher, in which the Court refused to apply absolute prosecutorial immunity, the Court condemned the custom of having the prosecutor swear to the facts supporting the arrest warrant, thereby setting a national standard for prosecutors and curtailing a practice jeopardizing constitutional protections.563 As Professor Erwin Chemerinsky observed, "From a practical perspective, Kctlina will mean that prosecutors no longer will file declarations in support of arrest warrants under penalty of perjury."564 Had absolute immunity been applied, the issue would not have been addressed and, undoubtedly, the practice would have continued.
In short, adopting a uniform rule of qualified immunity for prosecutors would promote the evolution of national standards for constitutional prosecutions, to the benefit of both prosecutors and the public. When qualified immunity applies, the courts first address the merits of the claim and determine whether the prosecutor's conduct violated the Constitution. When violations are found, prosecutors reform their practices to avoid future liability. In this way, prosecutors will be guided on how to conform their practice to constitutional standards, and citizens will be protected from unconstitutional misconduct.
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