Make Prosecutors ‘Earn’ Immunity

The doctrine of absolute prosecutorial immunity was conjured out of thin air by the Supreme Court in 1976, with no basis in the Constitution. Until it is eradicated, culpable prosecutors who want immunity should have to apply for it, writes TCR’s legal affairs columnist James Doyle.

Jan 1, 2022 - 08:00

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When a witness embroiled in a criminal investigation is given a grant of immunity, it always comes with strings attached.

The witness gets immunity, but society gets the witness’s information in exchange—all of it.

If the information the witness provides isn’t truthful, or isn’t complete, the grant of immunity is withdrawn. The witness (often a potential defendant) pays the price.

A witness has to earn the immunity.

But America’s prosecutors enjoy an absolute immunity from suits for damages caused by their misconduct, and that immunity comes at no cost. The immunity provided to prosecutors generates no gain in information.

(Something similar happens with police officers, who enjoy only “qualified immunity”—not “absolute immunity”—but who are indemnified from public funds against civil judgments in 99.8 percent of cases. In practical terms they too are immune. What information do culpable cops have to exchange for this? None.)

Simply to be a prosecutor whose actions can be tied theoretically to your advocacy role is enough to trigger absolute immunity—for hiding evidence of innocence, coercing witnesses, introducing illegally seized evidence, falsifying evidence, or soliciting perjured testimony.

Whether prosecutors should ever have enjoyed absolute immunity in the first place is a question for another day. To put my own cards on the table, I think the doctrine of absolute prosecutorial immunity should be eradicated.

It was conjured out of thin air by the Supreme Court in 1976, with no basis in the Constitution, simply because in the Court’s opinion it was “better” to relieve good prosecutors of “the constant dread of retaliation” than to recognize some means for sanctioning the bad ones and providing compensation to their victims.

The immunity has been grotesquely distended ever since, even applied in to cases, such as Connick v. Thompson, where prosecutorial misconduct contributed to sending John Thompson, an innocent man, to death row for 14 years.

The Supreme Court mobilized the prosecutorial immunity doctrine to set aside a lower court’s award of damages to Thompson from the District Attorney’s office based on its organizational failure to provide training in ethical practice.

Barry Scheck has illuminated a variety of tools for improving the retrospective disciplinary accountability of prosecutors. They could help. Others have set out elaborate justifications for moving toward imposing statutory qualifications on prosecutorial immunity in tort litigation for Brady violations.

That effort could conceivably prove productive.

But whatever retrospective tools we develop we shouldn’t overlook a simple way to enhance the prospective “forward-looking accountability” that prevents future miscarriages of justice.

As long as an immunity doctrine survives in some form, we should make sure that culpable prosecutors earn their immunity.

Prosecutors who want immunity should have to apply for it.

The application should be countersigned by the elected District Attorney, and every judicial grant of an application should be conditioned on complete, truthful, disclosure to any parallel proceeding aimed at compensating victims and to a sentinel event review.

The applicant has to agree to provide the fullest possible narrative of the event he or she helped to contrive, detailing every condition and influence bearing on it.

No matter what you think of whacking bad prosecutors as a deterrent for misconduct, there is really no argument against demanding their information when that information helps prevent recurrences.

The Treasure Trove of Safety Information

The exoneration cases cataloging official misconduct are not close calls: we know the violations occurred; we know who committed them.

But preventing the next wrongful conviction isn’t as simple as invoking the maxim “Good man, good result” and exorcising the bad men and women.

We have to keep two things in mind. First, the worst prosecutor in the world can’t contrive a wrongful conviction on his or her own; a wrongful conviction is always a system failure—an “organizational accident” for which all those involved―cops, defenders, courts―share some degree of responsibility.

Besides, the bad prosecutors’ decisions, no matter how despicable, were always “locally rational.” They are reactions to their environments, to pressures and incentives, to system weaknesses, including, but not limited to, the absence of sanctions.

To understand how to prevent the next episode, we need not just a performance review (via prosecution, civil suit, or bar discipline).

We need a full-context event review.

As things stand, we can answer the “Who?” and the “What?” of many prosecutorial misconduct episodes, but the most important preventive issues of “How?” and “Why?” are obscured.

Prosecutors who need immunity hold treasure troves of information bearing on those questions. They can teach us about the interior culture of the prosecution silo.

We know these prosecutors violated the rules, but we don’t know what feature of their professional lives caused them to zig when they should have zagged.

Was the training deficient? Did office culture create incentives? Was the prestige of a “win” irresistible? Or the ignominy of a “loss” unbearable?

Did they do it because “Everyone did it”, and the office had adopted consistent “covert work rules?”

The prosecutors’ positioning also gives them windows into adjacent defender, forensic, and police silos. Did the ramshackle state of the local police department encourage fatalism about “the best case you’re going to get?” Did communication with the crime scene and forensics components mask violations?

Did recognition of the feebleness of the local defender service agency or of a particular defender embolden the misconduct?

Most importantly for future safety, they can also tell us how those system components interact. Did their decisions seem defensible because of weaknesses in investigative capacity? Did media pressure induce deviation from the rules?

Had years of experience with a see-no-evil local judiciary set in motion a “practical drift” further and further from the rules with no apparent consequences?

Was the misconduct an adaptation to the demands of a complex adaptive system?

In fact, the immunity from civil judgments for misconduct granted to prosecutors has had the indirect effect of shutting these inquiries down. (After all, as UCLA law professor Joanna Schwartz has pointed out in the context of policing, litigation allows for learning, if anyone is inclined to pay attention.)

When we talk about prosecutors’ accountability for misconduct, we should remember, as Safety commentators do, that an “account” is a debt to be paid for misconduct, but it is also a story to be told.

Prosecutors are currently free from any obligation to pay the debt for their misconduct.

That makes it more important that they tell the story. Are the conditions and influences that tempted them still present? If they want immunity, they should have to tell us.

Earned Immunity Can Deter

There is a tendency see prosecutorial misconduct as the work of swashbuckling wild men, arrogantly stomping on the rules. In fact, the problem more often turns out to be—as Diane Vaughan noted of the space shuttle Challenger launch decision—conformity to what is seen as expected.

Conformity to “covert work rules” is often motivated by a desire for membership in and status within a group. Sometimes, withholding exculpatory evidence—of police investigative botches, or lab tests—is a gesture of law enforcement solidarity that earns a place on the team, or in the club.

But conditioning a prosecutor’s immunity on the promise to fully disclose the role of these powerful internal cultural dynamics will not only afford us the opportunity to expose and attack them, it creates a new disincentive for committing the rule violations in the first place.

Awareness that being forced to “out” the other members will be the price for immunity for following illegal “covert” work rules introduces a counterweight.

Immunity—if we have it at all—should come at that price: it should require help excising the local code of silence. Advocates for immunity claim, after all, that it exists not for the comfort of violators, but for the good of society.