On The (Lack of) Text and History Supporting “Absolute Prosecutorial Immunity”

Last week’s Supreme Court oral argument in Pottawattamie County v. McGhee (08-1065) was the first time this year the Court discussed the limits of absolute immunity for prosecutors — a subject it also visited last Term in Van de Kamp v. Goldstein.   Pottawattamie gives the Court yet another opportunity to revisit its deeply flawed jurisprudence surrounding this court-created doctrine, which lacks support in constitutional text and history.

Pottawattamie concerns two Iowa prosecutors who fabricated evidence in order to convict two young African-American men of murder in 1977.  The two men, Terry Harrington and Curtis McGhee, spent 25 years in prison before their conviction was overturned by the Iowa Supreme Court in 2003, following the revelation that the prosecutors had essentially coached their key witness and ignored evidence pointing to a different suspect.  After their release, Harrington and McGhee sued the prosecutors responsible for the misconduct under Section 1983, the Reconstruction-Era statute that allows individuals to seek civil remedies for the deprivation of rights by state officials.  The prosecutors, in turn, claimed that they have absolute immunity from such lawsuits, a protection first recognized by the Court in Imbler v. Pachtman in 1976.

Since creating the doctrine of absolute prosecutorial immunity in Imbler, however, the Court has struggled to define it consistently.  In some circumstances — for example, when prosecutors were deemed to be acting as investigators or administrators — the Court has said they receive only the lesser benefit of qualified immunity, though the lines that determine when a prosecutor is performing such roles is predictably blurry.  Last year, the Court grappled with prosecutorial immunity in Van de Kamp, upholding absolute immunity for supervisory prosecutors at the Los Angeles District Attorney’s office, whose failure to set up a system for sharing exculpatory evidence, such as a plea deal, with defense attorneys allegedly led to the wrongful murder conviction and incarceration of a college student in 1979. Imbler and its progeny have thus sown much confusion in the area of prosecutorial immunity, creating a body of case law that seems to say prosecutors are absolutely immune from violating defendants’ constitutional rights, except when they are not.

Yet defining the boundaries of absolute prosecutorial immunity is an ongoing problem of the Court’s own making, since the entire doctrine of absolute immunity runs contrary to constitutional text and history. As CAC argued in a “friend of the court” brief filed last year in Van de Kamp, absolute immunity insulates prosecutors from liability for even the most flagrant violations of the Constitution, which goes against the intent of the Reconstruction Congress to protect civil rights against wrongful state action, evidenced by both the enactment of Section 1983 and of the Reconstruction Amendments to the Constitution. As scholarship has shown, there is no historical support, either in the common law or the legislative history of Section 1983, for granting prosecutors absolute immunity, as opposed to the qualified immunity most government officials enjoy. To the contrary, the purpose of the Civil Rights Act of 1871, of which Section 1983 was a part, was to strengthen government accountability for rights violations, not to insulate state actors from court challenges.

This important, though seemingly-unacknowledged, history made a fleeting appearance at last week’s oral argument in Pottawattamie, when former Bush Solicitor General Paul Clement, arguing on behalf of Harrington and McGhee, told the Justices:
[I]f you’re going to go back to first principles, then what you’re going to find is that there was no common law support at all for absolute immunity. And I wouldn’t think that this Court was particularly interested in coming up with implied immunities that aren’t in the statute [Section 1983], and had no basis at the common law, and that’s why I think some of the Justices that have looked at this as an original matter have tended to be quite reluctant in recognizing absolute immunity because it lacks support in the text and it lacks support in the common law.
Though Clement did not go so far as to urge the Court to overturn Imbler and return to a system of qualified immunity for all prosecutorial roles, the Justices did appear sympathetic to the claim in this case that absolute immunity must have its limits – more so, anyway, then they did in Van de Kamp.  As the Court continues to manipulate and grapple with the ever-shifting line at which absolute immunity ends and qualified immunity begins, we can only hope that one day it will revisit the root of the problem – the very existence of absolute prosecutorial immunity – and provide wronged defendants with a meaningful way of seeking redress for prosecutorial misconduct that has better support in constitutional text and history.