Is Absolute Immunity For Prosecutors On The Table?

In her dissent in Trump v. United States, there’s a strong possibility that Justice Sonia Sotomayor’s rhetoric didn’t make her new friends. But her statement on the denial of cert  in Price v. Montgomery County not only makes some excellent and valuable points, but could well be a precursor to a significant shift in the Court’s position. While the majority provided limited absolutely immunity for a president in the performance of core executive functions, is a prosecutor, of which there are a great many, similarly entitled to the same deference?

The case involved a Kentucky man named Nickie Miller, who spent two years in jail awaiting trial on a murder charge.

The case at issue centers around Nickie Miller, a Kentucky man whom a woman named Natasha Martin implicated in a bizarre murder plot after the government offered her a deal to avoid prison time. The primary issue: She almost immediately sought to recant that confession. Law enforcement wouldn’t accept that. So she testified before a grand jury, and then tried to recant again, writing in jailhouse letters to another man she implicated that her statement came in response to “coercive interrogation techniques, threats, and undisclosed promises of consideration.”

When Miller’s defense team heard about those letters, it tried to obtain them. Martin reportedly asked Assistant Commonwealth Attorney Keith Craycraft how she should comply with the order, to which he allegedly responded that she should destroy the correspondence. She obliged.

The case was ultimately dropped, but that neither gave Miller two years of his life back nor made the cancer, which was in remission but returned while in jail for lack of medication, go away. Needless to say, Craycraft’s vision of doing justice was not universally shared.

The Court’s denial of certiorari should not signal tolerance of the prosecutor’s conduct. {The Court may deny certiorari for many reasons, including that the facts presented by a petition do not clearly or cleanly implicate a division of authority among the lower courts.}

The allegations, assumed true at this stage of the case, tell a disturbing story. Prosecutors are “representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” The prosecutor’s conduct in this case “diminishes the dignity of our criminal justice system and undermines respect for the rule of law.”

Well, sure, but just because absolute immunity isn’t a perfect solution for all prosecutors, particularly when a miscreant flagrantly abuses his power, isn’t a reason to abandon it. It was always a trade-off between the ability of prosecutors to do their job with fear of consequences and abuse by prosecutors for lack of consequences.

Prosecutorial immunity can promote “the vigorous and fearless performance of the prosecutor’s duty.” This immunity has limits, however. {Absolute prosecutorial immunity in theory is limited to “the immunity historically accorded … at common law and the interests behind it.” [See alsoKalina v. Fletcher (1997) (Scalia, J., concurring) (“There was, of course, no such thing as absolute prosecutorial immunity when §1983 was enacted”). Further, as Judge Nalbandian discussed in his opinion below, recent scholarship details that the 1871 Civil Rights Act included language abrogating common-law immunities that was, for unknown reasons, omitted from the first compilation of federal law. This new scholarship [on this point] reinforces why, at a minimum, this immunity doctrine should be employed sparingly.}

Sotomayor goes on to distinguish between the prosecutorial function and the other functions that a prosecutor may perform, to demonstrate that absolute immunity is not without limits. It’s mixing apples and oranges, but to the extent the argument has merit, it’s that prosecutors’ absolute immunity does not extend to all possible job functions when they go beyond or outside the function entitled to immunity.

Even when absolute prosecutorial immunity applies, it “does not leave the public powerless to deter misconduct or to punish that which occurs.” Prosecutors accused of misconduct may still face criminal liability or “professional discipline.” Yet, these safeguards are effective only if employed. {See, e.g., R. Barkow, Organizational Guidelines for the Prosecutor’s Office, 31 Cardozo L. Rev. 2089, 2094 (2010) (observing that “criminal actions against prosecutors who willfully violate a defendant’s constitutional rights … are almost never brought,” “[n]or are prosecutors typically punished by their supervisors or removed from office”).

The excuse was that there were other ways to punish the malevolent prosecutor, which sound good on paper but, as a practical matter, almost never happen, making them substantively worthless as mechanisms to rein in the rogue prosecutor.

Craycraft’s alleged misconduct of advising a witness to destroy evidence to thwart a court order is stunning. If this is what absolute prosecutorial immunity protects, the Court may need to step in to ensure that the doctrine does not exceed its “‘quite sparing'” bounds. Otherwise, we risk leaving “victims of egregious prosecutorial misconduct without a  remedy.” Michaels  v. McGrath (2001) (Thomas, J., dissenting from denial of certiorari).

Yes, that Thomas, J. dissenting. There may be a majority of the Court on both sides of the putative ideological divide prepared to revisit prosecutorial immunity finally prepared to take egregious prosecutorial misconduct to task rather than shield it under the legal fiction that fearless prosecutors trump malevolent prosecutors. Maybe both justices Sotomayor and Thomas, not to mention the other six (Alito being left out of the equation for obvious reasons) need to try to get along better so that their shared concerns about prosecutorial misconduct can be the next precedent to fall.

2 thoughts on “Is Absolute Immunity For Prosecutors On The Table?

  1. Mark Daniel Myers

    Given Thomas’ change of opinion from Brand X to his concurrence in Loper Bright, hoping he still thinks in 2024 what he wrote in 2001 is optimistic at best.

  2. Erik H

    At first, the idea of removing prosecutorial immunity seemed like a bizarre nuclear option, given that we could easily improve prosecutor behavior if we only enforced the existing rules of conduct.

    But that appears to be politically impossible. No judge is going to send prosecutors to bar discipline, it seems–even when they do the same sort of thing for which you and I would be disciplined in a heartbeat. And no judge seems inclined to even hold their feet to the fire in terms of timing, evidence, etc.

    And in THAT context, it makes sense to allow individuals to sue for the worst-of-the-worst cases. Sure, we could avoid it, but we don’t seem to want to.


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