In the past three years, we have witnessed what may be the most significant series of cases on prosecutorial immunity under Title 42 U.S.C. [section] 1983 (1) since the seminal decision of Imbler v. Pachtman (1976). (2) In 2009, the Supreme Court accepted for review the case of Pottawattamie County, Iowa v. McGhee, (3) although the parties settled after oral arguments before the Court; (4) then, in 2009, along with issuing a decision in Van de Kamp v. Goldstein, (5) the Court accepted Connick v. Thompson (decided March 2011). (6) These cases involved allegations of gross prosecutorial misconduct resulting in the wrongful conviction of innocent persons. (7) At the heart of these cases is the question of how far--and at what cost--the Supreme Court is willing to defend the doctrine of absolute immunity for prosecutors. McGhee and Connick posed the question plainly: is such prosecutorial misconduct a necessary price to pay for assuring the proper functioning of the criminal justice system? (8) The question was not unforeseen, since, as Justice Powell had remarked in Imbler, absolute immunity protects both the honest and the dishonest prosecutor. (9) In this article we argue that the largely theoretical possibility acknowledged by Justice Powell (since the prosecutor in Imbler deserves the appellation of honest rather than dishonest) has now become a reality. To continue to apply, or worse, to extend, Justice Powell's reasoning to cases revealing egregious prosecutorial actions backs us into a constitutional ditch. Instead, we suggest that there are at least two paths leading out of the ditch for the future.
In Part I, we describe the major developments in the law of prosecutorial immunity under [section] 1983. In Part II, we discuss the contours of the ditch in which we find ourselves. We focus on the need for both individual and organizational liability, the lack of accountability for prosecutors, and present a typology of honest and dishonest prosecutors. In Part III, we outline the type of case that might successfully challenge the current doctrine on absolute immunity for prosecutors in hopes of placing some checks on prosecutorial misconduct.
I. HISTORY OF PROSECUTORIAL IMMUNITY UNDER 42 U.S.C. [section] 1983
42 U.S.C. [section] 1983 created a means by which citizens could address civil wrongs perpetrated by state actors. (10) It states:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress.... (11)
One justification often cited by the courts for clothing prosecutors with absolute immunity under [section] 1983 is the supposed long history of treating prosecutors as entitled to it. (12) However, this alleged history has been challenged. For example, Justice Scalia, in a concurring opinion in Kalina v. Fletcher, (13) took issue with the view that, in 1871, prosecutors had enjoyed absolute immunity:
There was, of course, no such thing as absolute prosecutorial
immunity when [section] 1983 was enacted. (Indeed, as the Court
points out, there generally was no such thing as the modern
public prosecutor.) The common law recognized a "judicial"
immunity, which protected judges, jurors and grand jurors,
members of courts-martial, private arbitrators, and various
assessors and commissioners. That immunity was absolute,
but it extended only to individuals who were charged with
resolving disputes between other parties or authoritatively
adjudicating private rights. When public officials made
discretionary policy decisions that did not involve actual
adjudication, they were protected by "quasi-judicial"
immunity, which could be defeated by a showing of malice,
and hence was more akin to what we now call "qualified,"
rather than absolute, immunity. …