Following up on my recent post: “Whither Malicious Prosecution“, an unanswered question is whether absolute or qualified immunity for prosecutors in the criminal justice system is legally and morally (if not ethically) justified in a modern society.
In the end, the U.S. Supreme Court decision in Connick v. Thompson slams the door on imposing any §1983 liability on local governments for civil damages arising from a wrongful conviction based upon an action pursuant to “official municipal policy”. Essentially, the U.S. Supreme Court, by a 5-4 margin, rejected establishing a negligence-based “failure-to-train” standard against prosecutors for failing to comply with the Brady v. Maryland, 373 U. S. 83 constitutional requirement of disclosure of exculpatory evidence to the defence.
“Why”, as one commenter, Ted Folkman asked “was the prosecutor who was the actual wrongdoer not liable?” Could not the plaintiff simply have sued the prosecutor who intentionally withheld the evidence of the crime lab report? Even Justice Scalia’s concurrence refers to the “miscreant prosecutor Gerry Deegan’s willful suppression of evidence…in an effort to railroad Thompson”.
The short answer is No. In Imbler v. Pachtman, 424 U.S. 409 (1976), the U.S. Supreme Court established absolute immunity for district attorneys or prosecutors from civil suits resulting from their government duties. See Mike Cernovich’s excellent summary of prosecutorial immunity here.
Some will argue that Imbler does not go so far, as prosecutors are subject to criminal prosecution or professional discipline by state bar associations for suppressing evidence or otherwise putting the administration of justice into disrepute.
No. Not really.
As Margaret Z. Johns in her article, “ Reconsidering Absolute Prosecutorial Immunity ” 2005 BYU L. REV. 53 at 69-71 notes:
“…just as the adversary process fails to prevent or correct prosecutorial misconduct, disciplinary proceedings are also inadequate to address the problem because they are rarely instituted against prosecutors. Specifically, the report by the Center for Public Integrity found that since 1970 there were more than 2000 cases of prosecutorial misconduct requiring appellate correction for harmful error. But there were only forty-four instances in which disciplinary action was taken and only two disbarments. Another study apparently found that from 1886 to 2000 there were only 100 cases of disciplinary proceedings against prosecutors, less than one per year across the entire country. And although the Chicago Tribune study found 381 reversed convictions resulting from prosecutorial misconduct in suppressing exculpatory evidence and introducing false evidence, it found not a single instance in which the prosecutor received a public sanction.
And finally, while in theory prosecutors could be criminally prosecuted for their misconduct, in fact they almost never are.127 Specifically, 18 U.S.C. § 242 provides criminal liability for government officials who violate constitutional protections.128 But since § 242 was adopted in 1866,129 research discloses only one conviction of a prosecutor under this statute.130 Indeed, although the Supreme Court cited § 242 as a basis for criminally prosecuting prosecutors who engage in misconduct, the Court cited no case in which this has actually happened.
In short, prosecutorial misconduct is alarmingly common, and there is no corrective mechanism, no accountability, no effective deterrent, and—because of prosecutorial immunities—often no civil remedy. As one commentator observed, the arguments supporting absolute prosecutorial immunity “offer a wry blend of fairy tale and horror story.” [citations omitted]
See also, Angela J. Davis, The Legal Profession’s Failure to Discipline Unethical Prosecutors 36 HOFSTRA L. REV. 275,(2008) and Fred C. Zacharias and Bruce A. Green The Duty To Avoid Wrongful Convictions: A Thought Experiment in the Regulation Prosecutors 89 BOSTON L. REV. 1 (2009).
For a Canadian perspective, see Kent Roach, Wrongful Convictions: Adversarial and Inquisitorial Themes North Carolina Journal of International Law and Commercial Regulation, Vol. 35, 2010.
It’s impossible to prove systemic “deliberate indifference.” Yet the courts continue to propagate the myth that wrongful convictions and prosecutorial misconduct are isolated incidents caused by only a few “bad apples”. There is no need to upset the shiny apple cart known as the criminal justice system, so the thinking goes.
Scott Greenfield sheds further light in his comment to my earlier post:
“…Since the offending prosecutor is immune, Thompson had to seek a ministerial duty by another as his theory of prosecution. But the issue in the case wasn’t the theory, but what proof was necessary to sustain the theory.
The question came down to single incident (which breaks down into two issues) or pattern and practice. The court went with the latter, knowing that it’s nearly impossible to prove due to the nature of Brady violations and that it leaves the aggrieved without recourse despite conceded proof (as in Connick).
The single incident breaks down into horizontal or vertical definitions. If 5 prosecutors conceal Brady from one defendant, is it 5 incidents or 1? Does it suffice or fail because only one defendant was harmed? The court held it was a single incident, and insufficient to establish a pattern and practice, which required multiple defendants.
By adding up all the piece of the decision, one comes inexorably to a conclusion that the court has made it impossible (on a practical level) for the plaintiff to prevail. This is what gives rise to the complaints about the court having forsaken the defendant and denied him redress…
Some will try to explain away prosecutorial misconduct as a consequence of cognitive biases that distort rational decision-making processes: anchoring, tunnel-vision, confirmation bias, reactance, belief bias, stereotyping, and fundamental attribution error. (If you’re not familiar with the psychology literature, just Google™ it. For an insightful analysis of cognitive biases in the context of prosecutorial immunity, see Bennett L. Gershman,”Bad Faith Exception to Prosecutorial Immunity for Brady Violations“, Amicus, Harvard Civil Rights-Civil Liberties Law Review online (2010).
The problem is not cognitive; it is systemic and motivational. Systemic in the sense that the criminal justice system is skewed towards slaking the public’s thirst for revenge. There is little interest in the rehabilitative or corrective model of justice; retributive justice prevails in an age of fear and insecurity. Yes, criminals deserve to be punished for committing crimes and misdemeanours. But when an innocent person is wrongly accused and then wrongly convicted, we shake our collective heads and say “that’s a shame, someone should really do something about that”. Diffusion of responsibility and lack of accountability are the hallmarks of injustice. Motivational in the sense that some prosecutors believe that their role in the criminal justice system is to win cases, not seek the truth. A criminal trial is stacked against the accused. The State, led by a zealous prosecutor blinded by a moral superiority complex is pitted against the accused, whose only hope for an acquittal is a skilled, committed criminal defence lawyer. I am not sure which is worse: zealotry, idiocy or greed. If prosecutor’s are now getting bonsuses for convictions, as the ABA Journal reports, the criminal justice system is broken.
That said, although the adversarial system is predicated on a level-playing field, incompetence exists on both sides of the aisle: the Dunning-Kruger effect affects defence counsel equally as it does the prosecution.
Beyond individual cognitive biases, social identity and social dominance theories focus on self-interest, intergroup conflict, ethnocentrism, homophily, ingroup bias, outgroup antipathy, dominance and resistance. In the past decade, the Behavioral Realism School, led by Jost, Banaji and Nosek, inter alia, have delved further into “group justification” theories and have advanced a psychological theory of System Justification which they define as the “process by which existing social arrangements are legitimized, even at the expense of personal and group interest.” Simply put, maintenance of the status quo in some cases may overpower self-interest or group-identity: See John T. Jost, Mahzarin R. Banaji & Brian A. Nosek, “A Decade of System Justification Theory: Accumulated Evidence of Conscious and Unconscious Bolstering of the Status Quo” 25:6 Political Psychology 881-919; Gary Blasi and John T. Jost, “System Justification Theory and Research: Implications for Law, Legal Advocacy, and Social Justice” 94 Calif. L. Rev. 1119-1168, (2006).
Oh yes, let’s not forget the Constitution, even though a breach of constitutional rights, such as in the case of Mr. Thompson, did not result in any financial compensation (except perhaps a $150,000 statutorily imposed limit). It’s a shame that constitutional torts, which once were heralded as the means to vindicate wrongful convictions, are now becoming more myth than reality.
Finally, if civil justice reform is about access to justice, then why is there no talk of criminal justice reform? Of course not, when you’re an accused, you don’t seek access to justice, you get haled into court and hope that justice finds you.
Filed under: access to justice, accountability, adversarial system, adversary theory, cognitive biases, criminal law, criminal practice, professional, prosecution, prosecutorial immunity, United States Constitution, United States Supreme Court
