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Reconsidering Absolute Prosecutorial Immunity
Brigham Young University Law Review, 2005 by Johns, Margaret Z
The confusion and litigation generated by the absolute immunity doctrine might be acceptable if the doctrine were justified by substantive policy reasons. But it is not. As this discussion has shown, absolute prosecutorial immunity violates rather than serves public policy. Moreover, adopting qualified immunity in all cases against prosecutors would eliminate this unwarranted confusion by applying one uniform, objective standard. Qualified immunity properly balances the need to protect government functions against the need to protect individual civil rights and provides an affirmative defense that can be efficiently used in the initial stages of the proceeding to eliminate not just the burden of liability but also the burden of litigation.626
C. Sta-re Decisis Does Not Justify the Continuance of Absolute Prosecutorial Immunity
The doctrine of stare decisis rightly constrains the Court's ability to overrule precedent and promotes the stability of and respect for the rule of law.627 But when the Court has adopted an erroneous rule of law that produces unjust and inconsistent results and has not induced detrimental reliance by individuals or society, the Court should and does reverse course and correct the error.628 In the case of absolute prosecutorial immunity, the Court should make this correction.629
While the Court has not been entirely consistent with respect to stare decisis,630 the Court has identified factors suggesting that a prior erroneous precedent should be overruled when: (1) the soundness of the original principle is doubtful;631 (2) the foundations of the principle have been eroded by subsequent decisions;632 (3) the principle has been divorced from its apparent original purpose by factual and legal changes;633 (4) the principle has generated a body of interpretative law that is so complex that the law has become difficult to apply;634 (5) the principle has been subject to substantial and consistent criticism;635 and (6) the principle has not induced individual and societal reliance that counsels against overruling.636 In the case of absolute prosecutorial immunity, all of these factors suggest that the doctrine should be overruled.
First, as discussed above, the soundness of the doctrine of absolute prosecutorial immunity is doubtful.637 The Court initially adopted the doctrine based on the misconception that it reflected the common law in 1871 and that it furthered public policy.638 However, absolute prosecutorial immunity was not available under the common law in 1871.639 Moreover, absolute prosecutorial immunity violates public policy by undermining the integrity of the criminal justice process, by denying victims of misconduct a remedy, by failing to deter misconduct, and by frustrating the development of constitutional standards.640
Second, the foundations of absolute prosecutorial immunity have been eroded by subsequent decisions. As the Court explained, qualified immunity is usually sufficient to protect government functions and absolute immunity is only granted when the proponent has made a strong showing of a special need for extra protection.641 Since absolute prosecutorial immunity was first adopted in Imbler v. Pachtmcin,642 each subsequent Supreme Court decision interpreting the doctrine has narrowed its scope to prevent its application to conduct which is outside the prosecutor's advocacy function. Specifically, in Burns v. Reed, the Court held that absolute immunity does not apply to the prosecutor's conduct in giving legal advice to the police.643 In Buckley v. Fitzsimmons, the Court held that absolute immunity does not apply where the prosecutor conspires with police to fabricate evidence.644 And, finally, in Ket-lina v. Fletcher, the Court held that absolute immunity does not shield a prosecutor who makes false statements of fact in an affidavit supporting an application for an arrest warrant.645 Thus, while Imbler adopted a potentially expansive absolute immunity defense, in each of its subsequent decisions the Court has limited the doctrine.
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