THE NEXT STEP IN CIVIL RIGHTS: ABOLISH ABSOLUTE PROSECUTORIAL IMMUNITY SO PROSECUTORS CANNOT USE THEIR POWER TO VIOLATE OTHERS' CONSTITUTIONAL RIGHTS.

• Author: Ahmad, Ariba

INTRODUCTION I. WINNING AT ALL COSTS: PROSECUTORIAL MISCONDUCT VIOLATES THE CONSTITUTION AND DESTROYS LIVES 841 A. A Few Bad Apples vs. A Rotten Orchard: The Issue is Systemic B. Our Judicial System is Failing Us--Why Internal Remedies Do Not Work. 1. Appellate Reversal 2. Professional Discipline and Criminal Charges 3. Civil Liability C. History Repeating Itself and the Purpose of [section] 1983--When the Government is Not Playing Fair, We Have a Right to Hold Them Accountable II. WHY ABSOLUTE IMMUNITY IS DESTROYING OUR JUDICIAL SYSTEM A. Section 1983 Does Not Recognize Absolute Immunity for Prosecutors B. Municipal Liability Falls Short of Honoring the Purpose of [section] 1983. 852 C. Qualified Immunity Is Not an Alternative Solution. III. WHY ABOLISHING IMMUNITY IS THE BEST WAY TO DETER PROSECUTORIAL MISCONDUCT AND PROVIDE A REMEDY TO VICTIMS A. The Environment Prosecutors Operate in Justifies Less Immunity Than Other Public Officials. 1. Police vs. Prosecutors: Snap Judgments or Reasoned Decision-making? 2. Judges vs. Prosecutors: Why Prosecutorial Misconduct's Invisibility Requires Strong Deterrents. 3. Prosecutors and the Winning-Is-Everything Mindset. 4. The Harmonious System of Oppression: How History Repeats Itself B. Eliminating Prosecutorial Immunity Does Not Threaten Honest Prosecutors 1. There Is No Flood That Our Current System Cannot Handle. 2. The Only Independent Judgment That Is Compromised Is the Decision to Violate the Constitution CONCLUSION INTRODUCTION

The American legal system is failing us. Recent media attention has broadcasted the devastation that police officers inflict on Black communities. The Black Lives Matter (BLM) movement, as portrayed in the media, is a movement that pushed conversation on police brutality and the murder of Black people to the forefront of American consciousness. (1) Although stories of individual police officers brutalizing Black people are what the media focuses on, the entire criminal-justice system should be scrutinized. (2) Though often overlooked, prosecutors play a central role in perpetuating the legal system's systemic failings. When prosecutors engage in misconduct and violate the Constitution, innocent people end up paying with their lives. (3) It is irrelevant that prosecutors themselves are not pulling the trigger--imprisoning someone for a crime they did not commit destroys lives just as effectively. (4)

1. WINNING AT ALL COSTS: PROSECUTORIAL MISCONDUCT VIOLATES THE CONSTITUTION AND DESTROYS LIVES

   It is not solely police misconduct that needs to be scrutinized, but the misconduct of prosecutors as well. Prosecutorial misconduct often results in wrongful conviction and incarceration, an egregious violation that has devastating effects on the innocent victim. Wrongfully incarcerated individuals are deprived of freedom and placed into the dangerous environment of jail or prison, where death--whether by suicide, correctional officer abuse or brutality, or another inmate--is all too likely. (5) After police arrest someone, prosecutors may, at their own discretion, charge the arrestee and put them on trial to prove their guilt. (6) Prosecutors have dual roles; when prosecutors build their case, they are working as investigators. (7) When prosecutors believe the case against a defendant is strong enough to move forward, prosecution begins. Prosecutors then become advocates for the victims of the crime. (8)

   "Prosecutorial misconduct occurs when a prosecutor breaks a law or a code of professional ethics" when trying a case. (9) The result of prosecutorial misconduct can include the imprisonment of innocent people, who serve terms of decades or even life in prison for crimes they did not commit. (10) Despite the devastation of incarceration, prosecutorial misconduct cases typically end the same way police-officer misconduct cases do (11): with no accountability, and no justice.

   One of the most notorious cases of prosecutorial misconduct happened in New Orleans in 2011. John Thompson, a 22-year-old Black man, was arrested for two separate crimes, an armed robbery and a murder. (12) During the armed-robbery trial, the prosecution withheld exculpatory evidence that could have proven Thompson's innocence. The perpetrator's blood was found at the crime scene and was not a match to Thompson. (13) When Thompson's trial for murder began, Thompson did not take the stand because the prosecutor likely would have impeached his credibility by introducing evidence of his armedrobbery conviction. Thus, Thompson's co-defendant testified that Thompson committed the murder without any rebuttal from Thompson. (14) The prosecution's deliberate failure to disclose the critical blood evidence in his armed-robbery trial led to Thompson's wrongful convictions and sentences of forty-nine-and-a-half years in prison for armed robbery and the death penalty for murder. (15) He spent the next eighteen years of his life in prison, from ages twenty-two to forty. Thompson spent fourteen of those years in a windowless cell, waiting for his execution. (16) In the years Thompson spent on death row, his lawyer hired a private investigator to look into the case. (17) The PI unearthed the exculpatory DNA evidence, which a Louisiana appellate court used to reverse Thompson's murder conviction. (18) Thompson was finally able to walk free after about eighteen years. (19) After this story unfolded, even more exculpatory evidence came to light; the prosecution had hidden ten other pieces of evidence before his trial that cast serious doubt on Thompson's guilt. (20)

   Although finally free, Thompson was unable to hold the people responsible for his wrongful incarceration accountable. Prosecutors have absolute immunity from suits alleging prosecutorial misconduct. (21) Because that immunity precludes suits against individual prosecutors for their misconduct, Thompson tried to hold the District Attorney's office accountable for the role it played in his wrongful incarceration, but the Supreme Court blocked him in Connick v. Thompson. (22) Thompson successfully sued the DA's office for misconduct in district court and was awarded $14 million in damages, (23) and an evenly divided en banc Fifth Circuit affirmed. (24) But the Supreme Court reversed. (25) In doing so, the Supreme Court effectively granted municipalities their own form of qualified immunity, making it extremely difficult for Thompson and similarly situated future plaintiffs to hold prosecutors liable for their misconduct. (26)

   1. A Few Bad Apples vs. A Rotten Orchard: The Issue is Systemic

      Connick is not an isolated incident, but rather a well-litigated example of the magnitude of damage that prosecutorial misconduct can cause. Several studies decisively show the systemic destruction caused by prosecutorial misconduct. The National Registry of Exonerations reports that misconduct by prosecutors or police officers occurred in 56% of the 2,946 exoneration cases between 1989 and 2022. (27) On average, wrongfully incarcerated individuals lose nearly eleven years of their lives in prison per case. (28)

      Prosecutorial misconduct exists on a spectrum, just like police misconduct does. For example, with police misconduct, the Fourth Amendment only protects people from state actors' excessive use of force, but officers can abuse their position by harming individuals in ways that do not go far enough to be considered a constitutional violation but are still harmful. (29) The prosecutorial-misconduct spectrum includes prejudicial or biased statements, unethical trial and pre-trial tactics, as well as the more serious forms of misconduct, such as "[k]nowingly permitting perjury" and "[l]ying in court." (30) No matter the degree, any form of misconduct is damaging to our criminal justice system: it "undermines public confidence" and discredits the "truth-seeking" process. (31)

      But not every form of misconduct is a violation of our constitutional rights. The most common forms of misconduct that rise to the level of constitutional violations include: witness tampering (occurring in 17% of cases of exoneration), concealing exculpatory evidence (occurring in 44% of cases), and misconduct in trial (occurring in more than 14% of cases). (32) That second category--concealing exculpatory evidence--is the most common type of misconduct in cases that eventually result in exoneration. The Supreme Court has held that concealing exculpatory evidence is particularly egregious. (33)

      In the seminal case of Brady v. Maryland, (34) the Supreme Court held that the Constitution demands that the government disclose favorable evidence to criminal defendants. (35) The government's failure to disclose favorable evidence violates a defendant's due-process rights. (36) Note that Brady and its progeny allow prosecutors to exercise a high degree of independence, requiring disclosure only for "favorable" and "material" evidence. The flexibility of these terms allows for extreme deference to prosecutors' determinations of what is "favorable" and "material," which prosecutors can use to disadvantage the defense. (37) Despite the severe impact a Brady violation can have on a defendant, the only available remedy is a reversal--a pittance of a punishment on the prosecutor when weighed against the devastating impact of imprisoning an innocent person. (38)

      Simply looking at the data on frequency of prosecutorial misconduct doesn't shed much light on the question of its prevalence. Although the issue of prosecutorial misconduct is clear enough for legal scholars to declare it a widespread issue (and not the result of a few "bad apples"), (39) the severity of the orchard rot is not as obvious. The only readily available data comes from studies examining exonerations, which show that more than half of exonerations are the result of prosecutorial misconduct. (40) Based on this, legal scholars suspect a significant number of cases plagued by prosecutorial misconduct remain...