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.
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. I continue to believe that "prosecutorial functions, had they existed in their modern form in 1871, would have been considered quasi-judicial." (14) Similarly, former Solicitor General Paul Clement, who represented the exonerated defendants in the case of Pottawattamie County v. McGhee in the Supreme Court, (15) disputes the prevailing view that absolute immunity for prosecutors dated back to the passage of the law in 1871: "Nonetheless, the problem for an originalist looking for a basis for absolute immunity is that the law was very clear at the time of 1870 that there was no special rule for prosecutors; prosecutors, just like police officers, were entitled at most to a species of qualified immunity." (16) Finally, legal scholar Margaret Johns, in discussing the history of [section] 1983, states that neither the language of [section] 1983 nor its legislative history suggest a Congressional intention to extend immunity to officials who violated a defendant's civil rights. (17) However, the potential for [section] 1983 to serve as a federal civil rights statute was not explored for nearly a century, because [section] 1983 lay "dormant" (18) until the 1961 United States Supreme Court decision in Monroe v. Pape. (19) In Monroe, the Supreme Court held that [section] 1983 allows recovery against police officers who violate a citizen's constitutional rights, despite the existence of a state remedy. (20) The scope of immunity for prosecutors under [section] 1983, however, was not addressed until the case of Imbler v. Pachtman. (21) Although Imbler was a unanimous decision, (22) the eight justices who participated in the decision agreed only as to the case at bar and disagreed on the scope of prosecutorial immunity in general, as a concurring opinion sets forth. (23) We therefore discuss Imbler in some detail. The decision set the terms of the debate over the scope of prosecutorial immunity and the debate has changed little in succeeding years.
Imbler v. Pachtman (1976)
A California court sentenced Mr. Imbler to death for felony murder and his appeal was unsuccessful. (24) While Imbler was on death row, the deputy district attorney, Richard Pachtman, who had prosecuted his trial, turned up new evidence of witnesses who could corroborate Imbler's alibi, as well as evidence that the chief witness against him had recanted his testimony. (25) Mr. Pachtman wrote a letter to the governor of California describing this new evidence. (26) Imbler meanwhile filed an unsuccessful state habeas petition. (27) A few years later Imbler filed a federal habeas petition which included Mr. Pachtman's letter to the governor of California. (28) The federal district court granted the petition and Imbler was released when the state declined to retry him. (29) He then filed a [section] 1983 action against Pachtman and several police officers for conspiring to deny him his civil rights. (30) The federal district court granted Pachtman's motion under FED. R. CIV. P. 12(b)(6) (31) to dismiss the complaint against him on grounds of absolute immunity. (32) The Ninth Circuit affirmed the dismissal (33) and the Supreme Court "granted certiorari to consider the important and recurring issue of prosecutorial liability under the Civil Rights Act of 1871," (34) in the words of Justice Powell. (35)
Earlier case law had established that the common law defense of absolute immunity under [section] 1983 applied to the actions of a legislative committee that had acted improperly (36) and to judges (37) in order to protect those exercising legislative and judicial duties, respectively. (38) However, qualified immunity applied to several other types of officials, including police officers, (39) the governor and other executive officers of a state, (40) and school officials. (41) The question in Imbler was whether prosecutors perform a "quasi-judicial" function in initiating and pursuing a prosecution, similar to judges and grand jurors, or an executive function, similar to other officials like those mentioned earlier. (42) The majority concluded that the actions of prosecutors are "quasi-judicial" and hence are protected by absolute immunity. (43) Justice Powell enumerated several reasons for this conclusion. A prosecutor protected only by the defense of qualified immunity would be looking over his shoulder, distracted by the possibility of being sued, and devoting resources to his own defense when a lawsuit was filed. (44) A second argument introduced a new issue, i.e., the effect of such liability on the honest prosecutor:
Moreover, suits that survived the pleadings would pose substantial danger of liability even to the honest prosecutor. The prosecutor's possible knowledge of a witness' falsehoods, the materiality of evidence not revealed to the defense, the propriety of a closing argument, and--ultimately in every case--the likelihood that prosecutorial misconduct so infected a trial as to deny due process, are typical of issues with which judges struggle in actions for post-trial relief, sometimes to differing conclusions. The presentation of such issues in a [section] 1983 action often would require a virtual retrial of the criminal offense in a new forum, and the resolution of some technical issues by the lay jury. It is fair to say, we think, that the honest prosecutor would face greater difficulty in meeting the standards of qualified immunity than other executive or administrative officials. Frequently acting under serious constraints of time and even information, a prosecutor inevitably makes many decisions that could engender colorable claims of constitutional deprivation. Defending these decisions, often years after they were made, could impose unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials. (45) Finally, Justice Powell...