No One is Above the Law, Except Prosecutors
Philosopher and early romanticist Edmund Burke famously warned, “The greater the power, the more dangerous the abuse.” [1] Nowhere is this assertion more evident than within the American justice system, where ironically, sometimes the people trusted to uphold justice become the ones who betray it first. This phenomenon has become rampant throughout the United States as the justice system continues to protect the perpetrators of injustice over and over again. The case of Curtis McGhee and Terry Harrington presents a prime example. In 1983, Curtis McGhee and Terry Harrington were convicted of murder. 25 years later, their convictions were overturned after an investigation revealed that the prosecutors suppressed evidence during trial. Despite the gravity of the misconduct, when it was time to hold the prosecutors accountable, the Supreme Court ruled that the case was not valid to bring to trial. This is just one instance of many; these incidents are a direct result of prosecutors in the United States being protected through absolute immunity from civil suits for actions that were carried out during official duties, even if these actions violate certain constitutional rights. While absolute prosecutorial immunity was originally established to preserve the independence of prosecutors, the reality of its implementation is drastically different. In reality, it acts as a safeguard for constitutional violations, threatening the integrity of the judicial system, and should be altered to ensure civil accountability during times of misconduct.
The legal doctrine of absolute prosecutorial immunity does not have a valid textual basis in federal law, originating from the legally shaky and policy-driven Supreme Court reasoning in Imbler v. Pachtman. [2] In 1961, Paul Imbler was convicted of the murder of Morris Hasson, after eyewitnesses recognized him as the gunman who shot Hasson. Later, District Attorney Richard Pachtman wrote a letter to the Governor of California which revealed new evidence questioning the validity of the testimony from one of the eyewitnesses. Prompted by the letter, Imbler petitioned for state habeas corpus on the basis that Richard Pachtman, the prosecuting attorney in his case, had purposely utilized false testimony and buried evidence. However, the petition did not end up successful. After the loss in state court, Imbler went on to petition for federal habeas corpus, and eventually his petition was accepted. The federal district court found reasonable evidence that District Attorney Pachtman had used false evidence, and the court ordered Imbler to be released from prison. Following Imbler’s release, he went on to sue Pachtman in federal district court in an attempt to hold Pachtman accountable, using Section 1983 of the Civil Rights Act to argue that he should recover damages because his constitutional rights were violated. [3] In the end, the district court ruled that Pachtman was immune to civil liability, and the Supreme Court reaffirmed this position, holding that prosecutors have absolute prosecutorial immunity even under violations of Section 1983. This decision solidified the use of absolute prosecutorial immunity in the United States, changing the trajectory of prosecutorial accountability forever. But behind this decision lay a large, fatal flaw—the court’s reasoning and justification.
When the Supreme Court ruled in Imbler v. Pachtman, instead of a purely interpreting of the law at hand, the Supreme Court justified their decision as supporting “common law,” “history,” and “public policy.” [4] However, once diving into the practicalities of this justification, it quickly becomes clear that this justification is shaky at best and perilous at worst. The Supreme Court extrapolated history to provide reasoning for this decision, suggesting that when the 1871 Civil Rights Act was passed during the Reconstruction era — which stated that every person acting under color of law who violates a U.S. citizen’s constitutional rights is subject to lawsuits — [5] the law was not intended to apply to prosecutors. Yet, there was no clear reasoning as to why the Supreme Court came to the conclusion that Congress had intended to leave out prosecutors from the Act during Reconstruction, especially because there is no clear evidence of U.S. courts granting prosecutorial immunity to prosecutors until 1896, more than 20 years after the Civil Rights Act was passed. Another one of the main arguments vocalized by the Supreme Court’s decision to affirm absolute prosecutorial immunity was that, “the common law rule of immunity is thus well settled.” [6] The Supreme Court cited a number of 20th century lower court cases, such as Hoar v. Wood in 1841, [7] that had given immunity to prosecutors in the past. Nonetheless, none of the cases cited were actually rooted in English common law, proving the reasoning to be unsteady again. Thirdly, the Supreme Court had a public policy aspect to their reasoning, hypothesizing that limiting absolute immunity would discourage prosecutors who act in good faith from carrying out their “vital obligation” to give legal advice and limiting their actions in fear of civil liability. [8] However, the hazard of this reasoning is that it does not just shield liability from prosecutors who made mistakes but were acting honestly, but also protects prosecutors who had acted intentionally malicious, setting a dangerous and flawed precedent for future prosecutorial accountability.
Historically, the precedent of absolute prosecutorial immunity established in Imbler v. Pachtman has consistently proven its dangerous implications over time. Time and time again, the Supreme Court has utilized the absolute prosecutorial immunity doctrine to protect prosecutors from any sort of civil liability, even when there is obvious misconduct on the part of the prosecutors. This pattern is manifested in multiple cases after the establishment of Imbler, one of the many being Connick v. Thompson. [9] After spending over 14 years on death row for a crime he did not commit, John Thompson sued the District Attorney’s (DA) office, arguing his conviction was a direct result of poorly trained prosecutors failing to submit blood work in a related case. After winning in district court, the District Attorney, Harry Connick, submitted an appeal, and the case traveled up to the Supreme Court. In the end, the Supreme Court sided with Connick in a 5-3 decision, ruling that a DA’s office could not be held liable under 42 U.S.C § 1983 for illegal misconduct. During arguments, Thompson’s attorney argued that criminal prosecutors should receive specialized training beyond simply graduating from law school, [10] otherwise mistakes, like the one resulting in the outcome of Thompson’s trial, are simply inevitable. This has proven true over and over again. In this case, the doctrine of absolute prosecution essentially allowed for a violation of constitutional rights — specifically, Thompson’s Eighth Amendment rights — without any civil consequences. Without some sort of civil liability, it is difficult to motivate prosecutors to act ethically all of the time. Unfortunately, this can lead to overlooking deficiencies because there is no true incentive to remain vigilant. Even if the doctrine was created to encourage prosecutors to later reveal misconduct and help deliver justice for wrongfully convicted prisoners, its negative impact on justice is far greater. As a whole, the implementation of absolute prosecutorial immunity has led to unwarranted prison sentences for those with prosecutors that conduct intentional misconduct with little accountability, destroying the very point of the establishment of absolute prosecutorial immunity in the first place.
Although the Supreme Court initially justified immunity due to a need for prosecutorial independence, this assumption has not been held in practice. Cases such Van de Kamp v. Goldstein demonstrate how the doctrine of absolute immunity contradicts accountability and the public policy goals it was created to serve in the first place. In 2004, Thomas Goldstein successfully petitioned for habeas corpus and was released from prison after over 20 years of prison. Following his release, Goldstein sued the District Attorney and chief deputy from his trial, arguing that he had been unfairly convicted because they had not supervised their prosecutors correctly. He alleged that the prosecutors did not have an adequate system in place for disclosing use of jailhouse informants that were unreliable, as Goldstein was convicted by a jailhouse informant that falsely claimed to hear him admit to the crime in order to try and receive favorable incentives. [11] In their arguments, Goldstein’s attorney utilized the precedent set in Brady v. Maryland, which forces prosecutors to show exculpatory evidence to the defense. [12] Once again, the Supreme Court ruled in a unanimous decision in Van de Kemp’s favor and stated that they were entitled to absolute prosecutorial immunity. Although immunity is not extended to administrative matters, the Supreme Court reaffirmed that officers representing the court were protected with absolute immunity in this case because not sharing pertinent legal information was not an administrative matter, but rather a legal one. Thus, the officers were not subject to any sort of prosecution. By establishing the norm of absolute prosecutorial immunity, this makes the practice of leadership placing priority instituting strict supervisory measures on prosecutors less common. Allowance can quickly lead to encouragement, and if prosecutors are using fabricated evidence to convict defendants without civil liability, the prosecutor is being encouraged to commit “blameworthy and dangerous acts,” destroying the initial purpose of the act. [13]
Ultimately, while the Supreme Court may have originally created absolute prosecutorial immunity to protect prosecutorial independence and encourage integrity when it comes to unfair convictions, the tangible and lived experiences of those impacted by the doctrine are largely more damaging than protective. Prosecutorial immunity has turned into an iron shield for prosecutors, allowing prosecutors to act without fear of consequences of accountability, even if it threatens the constitutional rights of those convicted. This sends a frightening message to those whose futures are purely dependent on the justice system, suggesting that misconduct in the realm of prosecution is untouchable. Uncovering the implications of prosecutorial immunity through court cases illuminates the same story, as Van de Kamp v. Goldstein and Connick v. Thompson are not isolated incidents — they are simply instances of what has become systemic failure. When prosecutors are not punished for suppressing evidence and utilizing false testimony, it is apparent that there is a fundamental flaw plaguing the justice system, promoting institutional power over fairness for those convicted. Countless people have lost and will continue to lose years and decades of their lives because of prosecutorial misconduct and consequently, a lack of accountability. At its core, constitutional rights that are supposed to apply to all have simply been disregarded, creating a loophole on accountability, and at times enabling injustice. To protect the future lives torn apart by prosecutorial immunity, reform is a necessity now. The legal system should begin to hold all those involved in the justice system to an equal standard, including prosecutors. Finding the difficult balance between preserving integrity and allowing for accountability is paramount, but without at least some steps towards revision, history will only continue to repeat itself. After all, justice cannot exist alongside a legal system that protects those who commit injustices.
Edited by Ashley Zhou
[1] Edmund Burke, “The Motion Made in the House of Commons, February 7, 1771,” in The Works of Edmund Burke, vol. 2 (Indianapolis: Liberty Fund, 1999): 252.
[2] Imbler v. Pachtman, 424 U.S. 409 (1976).
[3] Ibid.
[4] William Bock, “The Idiosyncrasies of Imbler: Absolute Immunity for Prosecutors Makes Absolutely No Sense,” Dome, Boston University School of Law, January 26, 2024, https://sites.bu.edu/dome/2024/01/26/the-idiosyncrasies-of-imbler-absolute-immunity-for-prosecutors-makes-absolutely-no-sense/.
[5] Civil action for deprivation of rights, 42 U.S.C. § 1983 (current through Pub. L. No. 104‑317).
[6] Imbler v. Pachtman, 424 U.S. 409 (1976).
[7] Hoar v. Wood, 44 Mass. 193 (1841).
[8] Burns v. Reed, 500 U.S. 478 (1991).
[9] Connick v. Thompson, 563 U.S. ___ (2011).
[10] “Connick v. Thompson,” Cornell Law School Legal Information Institute, https://www.law.cornell.edu/supct/cert/09-571.
[11] Van de Kamp v. Goldstein, 555 U.S. 335 (2009).
[12] Brady v. Maryland, 373 U.S. 83 (1963).
[13] Peter A. Joy and Kevin C. McMunigal, “Do Two Wrongs Protect a Prosecutor?,” Case Western Reserve University Law Scholarly Commons (faculty publication no. 1032).