More on prosecutorial immunity

The more I think about the (purely judge-made and policy-driven) doctrine of prosecutorial immunity, the less I like it. The underlying idea is that making prosecutors vulnerable to lawsuits for cheating in the courtroom would make them less vigorous prosecutors. Of course, when they’re cheating, reduced vigor is exactly what you want. But when they’re not, the concern is that they might pull their punches for fear of future liability.

But there’s a simple fix for that concern: as the Federal government substitutes itself as the defendant when a federal official is sued for official actions, the county or the state that employs the prosecutor can substitute itself as the defendant in prosecutorial-misconduct cases. Of course, it could choose not to, either in general or on a case-by-case basis. But why should the courts interfere as between the prosecutor and his employer? And in any case, why should the victim of a frame-up lose, not only his chance of recovery, but his day in court?

The notion that the enormous power of prosecution to wreck someone’s life ought to be wielded in completely unreviewable fashion simply doesn’t fit our basic notions of justice.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

6 thoughts on “More on prosecutorial immunity”

  1. What person convicted of (or even tried for) a crime wouldn't bring a claim against the prosecutor? You'd need to double the number of lawyers employed by every prosecutorial agency just to handle the civil suits popping up everywhere. As a lawyer, this is more of a feature than a bug to me, but as a citizen (and user of the already overworked court system) it's definitely a bug.

    There's probably a solution that gives the genuinely aggrieved their day in court, but getting rid of prosecutorial immunity entirely seems way too likely to gum up the works entirely.

  2. "But why should the courts interfere as between the prosecutor and his employer?"

    Because that employer changes with local elections. The obvious hypothetical goes like this: a local prosecutor goes after a local corrupt political operator, one or more of whose associates is subsequently elected to responsible local position. The political operator brings suit, and the operator's associates, acting in their official capacity, decline to substitute. Meanwhile, in the next town over, a corrupt prosecutor goes after an innocent political enemy, and the prosecutor's cronies gladly substitute their jurisdiction as a defendant, since it's all on the taxpayer's dime.

    What strikes me is that the immunity apparently holds even when a court, in overturning or dismissing a case, has stated the existence of prosecutorial misconduct. It seems as if it would be easy enough to craft a rule that revokes the immunity when a court of competent jurisdiction has found misconduct. You'd still need a trial to determine whether the misconduct had risen to the level of damages, and if so, what damages, but the record would be clear-ish.

  3. I think Radley Balko's suggestion of a separate office of the State Innocence Officer would come in handy here–someone who's job it is to find and get released innocent convicts, with the same power as a prosecutor. And I would say that the right to indict law enforcement (both police and prosecutors) for active misconduct would fit well in such an office.

  4. The notion that the enormous power of prosecution to wreck someone’s life ought to be wielded in completely unreviewable fashion simply doesn’t fit our basic notions of justice.

    It does if you share the Ed Meese theory that it's "illogical" to worry about innocent suspects because almost all suspects are guilty. I suspect Meese has a lot of followers in the prosecutorial class.

  5. This, like so much else that troubles Americans, has been solved by other countries. Don't reinvent the wheel.

    We, also, need a methodology of reducing the total number of lawyers. The cost is astronomical vs most other countries, and frankly, any benefit is yet to be proven. Certainly if after 200 years of a defective justice system, all suggestions are how to increase the employment of lawyers, there is definitely a major problem.

    Some other country that was over lawyered probably solved this too.

    I'm sorry is this the blog that pretends that all judges are saints? You know, where someone said that not one federal judge has been charged, tried and convicted of any crime in the last x number of years?

  6. Speaking of other countries' resolutions, Canada has made some progress on this topic in recent months. The Uniform Law Conference (similar to the US's Uniform Law Commission, formerly NCCUSL) did a study of malicious prosecution as of August 2009:… .

    The Supreme Court of Canada redefined the rules for prosecuting a prosecutor for malice: there has to be real malice, not just negligence or mistake in the Miazga case in November:

    The government of Ontario amended its Ministry of the Attorney General Act with a new section 8 to say that actions for malicious prosecution cannot be brought against the individual prosecutor but only against the Attorney General, but the AG still has the right to claim over against the prosecutor. (The new section is not consolidated yet at, but is s. 46 of Sched 2 of the Good Government Act, 2009, available from Source Law at that site.) This was basically what the Uniform Law Conference recommended.

    Our prosecutorial system is farther removed from politics than the cases mentioned by Paul, fortunately. Not perfect, but not so political and especially not so partisan/political.

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