possible end to absolute prosecutorial immunity?

The LA times reports that the Supreme Court may hear a case from the ninth circuit that could overturn the absolute immunity for wrongful convictions that prosecutors have. *update: the Supreme Court granted review today*

Prosecutors in America (both federal and state) have long enjoyed absolute civil immunity for damages incurred during the course of a criminal prosecution. While they are still civilly liable for things not done in the course of the prosecution (such as defamatory media statements), and they may be administratively disciplined by their office or their state's bar association for misconduct during the prosecution, they, nor the government they are under, can ever be civilly liable to the person prosecuted during a criminal prosecution.

This immunity grows out of the history of holding governments liable in court for torts. By default, governments may not be sued until they concede to do so. This is the doctrine of sovereign immunity, a common law doctrine stemming from the idea that the king can do no wrong. Until recent decades, governments pretty much held onto their sovereign immunity for torts (the government had long been liable for contract since it needed willing contractors), and redressed wrongs they committed at their leisure, by passing private bills that would compensate a particular wronged individual or small group of parties.

The private bill system proved inefficient and inequitable. There was no limitations of the discretion of the legislature in passing these private bills, and more influential parties got more than they deserved, while less influential parties got less than they deserved. Further, because there was no finality to such not court proceedings, the governments found that the parties would simply keep petitioning again and again for the same injury.

The solution was to waive sovereign immunity for certain issues and provide court processes for the government to pay its liabilities. State and local governments, and the federal government, passed laws allowing private parties to sue the governments (and be sued by the governments) for certain torts as long as the actions met certain requirements. (Usually that the torts were not about policy-but rather some direct proprietary damage-that the plaintiffs notified the government well in advance-that the total liability limitation was not more than a certain amount per person or per incident etc..).

Even after such waivers however, some state parties still held special immunities, either due to specific exemption from the wavier, or due to a court interpretation of the wavier as not applying to some officials.

Currently, only a very small group of professions still have absolute immunity from suit: judges, prosecutors, and legislators.

Absolute immunity is absolute. It doesn't matter if the tort was intentional, knowing, blatant, and/or politically motivated. It doesn't matter if it was done with malice. As long as it was done in the course of the immune conduct, it is immune from civil liability to the person wronged.


(Other officials, such as police, enjoy qualified immunity, whereby an officer may not be held liable, even for an intentional breakage of constitutional or other rights, as long as the right had not been clearly established at the time. Without qualified immunity, police departments would be held liable for new legal interpretations as they come down-even if the rule hadn't been discerned until your case-which is how most liability usually works.)

At any rate, prosecutors still enjoy absolute immunity. For example, suppose a prosecutor knows you are innocent, and prosecutes you anyway, while withholding mounds of exculpatory evidence and lying to the court about doing so. Also suppose, the defense attorney doesn't know about the prosecutor's false motives or the exculpatory evidence, so you get convicted. Suppose, because of this, you go to jail for 30 years, loose your wife and kids, your job, and are ostracized by your community. Suppose you went through a surety bond for your bail, posting ten percent of the bail (say 1 million ten percent of which might be 100,000) in return for forfeiting the right to get it back. Suppose you are raped in jail. Also, assume that all this conduct is done while in official capacity, and the prosecutor never does anything with your case outside the court processes, such as talk to the media. In such a case, under the law of absolute immunity, neither the prosecutor nor the government that prosecuted you owes you a penny. Small comfort that the prosecutor may be disciplined at some point.

Egregious cases such as the above are of course rare, but when they do happen the monetary compensation comes not from litigation (because of immunity), but from those private bills passed by the legislature to give some compensation to a particular wronged individual. There is no legal obligation for the government to do this, and it is not always done. The system is still the old private bill system which was found so unworkable in the past.

Proponents of keeping absolute immunity have always claimed that, although possibly unfair, it is needed so that prosecutors don't have to worry about the possible civil consequences the city might face for their actions. These proponents claim that any sort of possible liability for prosecutorial conduct would inhibit prosecution to intolerable levels. Some, like the prosecutors in the LA times article linked to above, worry about the "floodgates" of cases if prisoners who were wrongfully convicted were allowed to allege negligence on the part of a prosecutor.

I have never been persuaded by such arguments.

It seems to me that, from a policy perspective, deciding how much protection to give the prosecutor requires balancing the risk of overzealous and malicious or reckless prosecution with the risk of floodgates of litigation and the possibly of perverse incentives not to prosecute legitimate cases. However, with absolute immunity very little exists to fight the risk of overzealous prosecution.

In contrast, several things would exist, even without absolute immunity, to fight the risk of an overly shy prosecutor.

First, government officials, who are sued for their government work (and loose), get their judgments payed for by the state through the indemnity process. While the threat of a lawsuit is still real, the idea that a prosecutor will not personally pay is surely a comfort to the anxious prosecutor deciding whether or not to do something because he worries about future liability.

Second, there are several limitations on such a liability for prosecution that would survive a cancellation of absolute immunity:

a) not having immunity for a certain harm doesn't mean you are liable. It just means that if you are liable-you can be sued and will have to pay if you loose. If you claim the prosecutor did something intentionally or negligently wrong , you would still have to prove it beyond a preponderance of the evidence. You would also still have to show, beyond a preponderance of the evidence, that the conduct was the actual and legal cause of your harm, including that you wouldn't have come by that harm anyway. In the case of negligence you may also have to show that the harm was reasonable foreseeable or a substantial factor-depending on the rules of negligence where you are. If you don't show any of the things you are supposed to, you loose your suit-even if the prosecutor isn't 'immune.'

b) Even without absolute immunity, if you were contributory negligent in any way (such as by being actually guilty of the crime you were unfairly prosecuted for) the government would still not have to pay anything in jurisdictions where contributory negligence is an absolute defense. Even in jurisdictions where contributory negligence isn't an absolute defense, the judgment is limited by the amount you were contributorily negligent. This means that even if you were acquitted-but the court finds for the purposes of contributory negligence in your civil suit that you did it (and thus contributed to the process that put you in jail), you would be unlikely to collect anything-even if the prosecutor was not immune from suit.

c) Even if you do establish a large liability, it doesn't mean the government will pay the whole thing. The government almost always puts statutory limits on tort liability it must pay-limits that apply even when the actual damage or judgment is for much more.

I also do not buy the "floodgates of litigation" argument pushed by proponents of absolute immunity. I find it hard to believe that there is a problem of mounds of innocent people who have been maliciously, or even negligently, prosecuted by a prosecutor. There is no incentive for the prosecutor to prosecute innocent people. Prosecutors have absolute discretion in deciding who to prosecute for what and vise versa, and there are plenty of guilty people out there to choose from.

If there are mounds of such people, then perhaps we it would be nice to have such abuses come to light, so that the system can be corrected.

If the proponents are worried about frivolous litigation, there are many systems in place to address such problems, including court screening processes for frivolous litigation and sanctions for the more egregious offenders.

Furthermore, absolute immunity need not vanish into no immunity in order to hold prosecutors liable for their most egregious conduct. For example, the new immunity rule may be similar to the 'qualified' immunity for police. Or it may only hold prosecutors liable for intentional misconduct and continue to hold prosecutors immune from negligence.

True, of course, for some proponents, such protections will not be enough. Any possible liability, to them, is too much risk for the all important work of prosecution. I simply cannot agree with such an assessment. Police doctors and firefighters do very good and sensitive work and do it within the bounds of the civil laws governing their work. If they can still do their work with the threat of being held liable for mistakes, then I must wonder what makes the prosecutor's work so much more special and delicate that it cannot be infringed upon by liability. If a cop making a split second decision about who to chase in a high speed accident can be held to liability by a jury looking at what was reasonable under the circumstances, than why cant prosecutors, who sit in a air conditioned office making reasoned and slow decisions, be subject to liability for prosecuting people they know are innocent?

Would the proponents of absolute immunity for prosecution (whehter they are afraid of overly shy prosecution or afraid of floodgates of litigation) also support absolute immunity for doctors? lawyers? police? corporations? If not..why are those positions not in need of immunity whereas prosecutors are?

The case involves a jailhouse informant that had been given a deal by one CA prosecutor. Another prosecutor used the testimony gotten by the deal (which was made up for the purpose of the deal) to wrongfully convict the plaintiff in this case. The case says the prosecutors were negligent for failing to share the information that the testimony was part of a deal, and thus the jailhouse informant had a good reason to lie.

obviously, the case involves a negligence claim, and I am more concerned with intentional misconduct. The ninth circuit has ruled against immunity, and said the case should proceed to determining liability. The state has moved for review by the supreme court. The case is in federal court because the plaintiff sued under the federal civil rights statue. *update: the Supreme Court granted review today*

One last thing I find interesting in the LA times article is that the government of CA had considered passing a law outlawing the use of uncorroborated jailhouse informant testimony in a criminal case but had decided there were not enough cases where such testimony had does harm. I must wonder if these are the same people arguing there would be a "floodgate of litigation" should innocent people be allowed to sue prosecutors for intentional misconduct.