Reconsidering Absolute Prosecutorial Immunity

Brigham Young University Law Review, 2005 by Johns, Margaret Z

In other words, since AEDPA review is so restricted, it is not an effective procedure for correcting prosecutorial misconduct.

Fourth, just as the adversary process fails to prevent or correct prosecutorial misconduct, disciplinary proceedings are also inadequate to address the problem because they are rarely instituted against prosecutors.123 Specifically, the report by the Center for Public Integrity found that since 1970 there were more than 2000 cases of prosecutorial misconduct requiring appellate correction for harmful error.124 But there were only forty-four instances in which disciplinary action was taken and only two disbarments. Another study apparently found that from 1886 to 2000 there were only 100 cases of disciplinary proceedings against prosecutors, less than one per year across the entire country.125 And although the Chicago Tribune study found 381 reversed convictions resulting from prosecutorial misconduct in suppressing exculpatory evidence and introducing false evidence, it found not a single instance in which the prosecutor received a public sanction.126

And finally, while in theory prosecutors could be criminally prosecuted for their misconduct, in fact they almost never are.127 Specifically, 18 U.S.C. § 242 provides criminal liability for government officials who violate constitutional protections.128 But since § 242 was adopted in 1866,129 research discloses only one conviction of a prosecutor under this statute.130 Indeed, although the Supreme Court cited § 242 as a basis for criminally prosecuting prosecutors who engage in misconduct, the Court cited no case in which this has actually happened.131

In short, prosecutorial misconduct is alarmingly common, and there is no corrective mechanism, no accountability, no effective deterrent, and-because of prosecutorial immunities-often no civil remedy. As one commentator observed, the arguments supporting absolute prosecutorial immunity "offer a wry blend of fairy tale and horror story."132

III. HISTORICAL BACKGROUND TO § 1983 LIABILITY AND COMMON-LAW IMMUNITIES

As this section will show, the Court has developed a functional approach to the application of common-law immunities in § 1983 actions.133 Depending on the function being performed, a government officer is either entitled to absolute or qualified immunity.134 Absolute immunity shields the officer from liability even though she acted in bad faith and with malice.135 Qualified immunity, on the other hand, protects the officer unless she violated clearly established law of which a reasonable officer would have known.136 The following section explains this development. It first outlines the significance of § 1983 liability in civil rights enforcement and then traces the Court's early analysis of the application of common-law immunities in § 1983 litigation.

A. Section 1983

Until the Civil War, the constitutional protections of the Bill of Rights applied only to the federal government, not to the states.137 At the close of the Civil War, Congress adopted the Thirteenth Amendment, which outlawed slavery and essentially transformed the Emancipation Proclamation into a constitutional right.138 But the Thirteenth Amendment failed to adequately protect the rights and safety of the newly freed slaves, and a reign of violence took hold in the South.139 In response, Congress adopted the first Reconstruction civil rights statute, the Civil Rights Act of 1866.14° In part because it doubted the constitutional authority for this statute,141 in 1868 Congress adopted the Fourteenth Amendment, which requires states to provide citizens due process and equal protection of the law.142 In 1871, buttressed by the constitutional authority of the Fourteenth Amendment, Congress essentially readopted the Civil Rights Act of 1866, which is codified today as 42 U.S.C. § 1983.143 As Justice Blackmun has explained, "Taken collectively, the Reconstruction Amendments, the Civil Rights Acts, and these new jurisdictional statutes, all emerging from the caldron of the War Between the States, marked a revolutionary shift in the relationship among individuals, the States, and the Federal Government."144