Reconsidering Absolute Prosecutorial Immunity

5. Absolute immunity is unnecessary to protect honest prosecutors

The Court held that absolute immunity was necessary to ensure that prosecutors are not chilled in the vigorous enforcement of the criminal law by the fear of subsequent civil liability.565 Those convicted of crimes should not be permitted to retaliate against their prosecutors and burden the court system with civil rights actions based on alleged prosecutorial misconduct.566 And, as the Court has observed, even the most honest prosecutor sometimes makes mistakes.567

But this fear of a flood of frivolous civil rights actions for prosecutorial misconduct is exaggerated for three main reasons. First, the requirements for imposing liability are sufficiently rigorous to eliminate unfounded and harassing litigation. Second, qualified immunity has become a potent defense that minimizes litigation burdens and protects "all but the plainly incompetent or those who knowingly violate the law."568 Third, courts have efficient tools for minimizing or penalizing unmeritorious litigation.

a. The elements required to state a § 1983 action will eliminate frivolous and vexatious litigation. The Court has explained that prosecutors need protection from wasteful litigation. To this end, the Court has interpreted § 1983 to impose barriers on potential litigants, requiring them to meet two difficult standards. Specifically, the plaintiff must show: (1) the criminal proceeding terminated in his or her favor; and (2) the prosecutor violated the Constitution with a culpable state of mind. This section will explain these elements.

(1) The plaintiff must prove the criminal prosecution terminated in his or her favor. In 1976, when the Court first adopted absolute prosecutorial immunity, it was not clear whether a plaintiff suing a prosecutor for misconduct had to establish that the criminal prosecution terminated in favor of the defendant.569 For this reason, the Court understandably feared that disgruntled convicts would retaliate by suing their prosecutors.570 But beginning in 1994 with the case of Heck v. Humphrey?71 the Court has required plaintiffs seeking to recover for wrongful convictions to establish that the criminal proceeding was resolved in their favor. This development greatly reduces the threat of unmeritorious, retaliatory litigation.

In Heck, the plaintiff (Heck) was convicted of manslaughter and sentenced to fifteen years in prison.572 While he was serving this sentence and while his direct appeal was pending, Heck filed a § 1983 civil rights action naming county prosecutors and a state police investigator as defendants.573 The complaint alleged that the defendants conducted an illegal investigation of him, destroyed exculpatory evidence, and used an unlawful voice identification procedure against him at trial.574 He sought compensatory and punitive damages.575 The Court ruled that the action was not cognizable under § 1983.576

The Court explained that § 1983 created a species of tort liability and that the most analogous common-law action was malicious prosecution.577 As an element of a malicious prosecution action, the plaintiff must allege and prove that the prior criminal proceeding terminated in favor of the accused.578 The Court imposed this requirement in the civil rights action for two primary reasons. First, it avoids parallel criminal and civil litigation with possibly inconsistent results.579 second, it prevents a collateral attack on the conviction by means of a civil action.580 The Heck Court ruled that this requirement applies in any action to recover damages for an allegedly unconstitutional conviction or imprisonment.581 Thus, to bring a §1983 action, a plaintiff must prove that the challenged conviction or sentence has been reversed on appeal, expunged by executive order, declared invalid, or subject to a federal writ of habeas corpus.582 The Court concluded that the "hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to § 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement."583