The Problem with Prosecutorial Immunity

Like any other people in positions of authority, prosecutors need checks on their power.


In his latest USA Today column, Glenn Reynolds discusses The People v. Efrain Velasco-Palacios, a California case in which prosecutor Robert Murray inserted a fraudulent confession into a translated transcript of the defendant's interrogation.

Good news: When the judge learned what had happened, he threw out the case. Bad news: The state appealed the judge's decision—arguing, Reynolds writes, that "putting a fake confession in the transcript wasn't 'outrageous' because it didn't involve physical brutality." More good news: The appeals court didn't buy this bizarre argument. More bad news:

Absolute immunity

Murray suffered no actual punishment for his wrongdoing. As a report in the New York Observer notes: "For reasons beyond comprehension, he still works for the District Attorney Lisa Green in Kern County, Calif." Murray does face the possibility of discipline from the California bar, but even disbarment would be a light punishment for knowingly producing a false document in a criminal proceeding.

Our criminal justice system depends on honesty. It's also based on the principle that people who do wrong should be punished. Prosecutors, however, often avoid any consequences for their misbehavior, even when it is repeated.

Worse yet, prosecutors are also immune from civil suit, under a Supreme Court-created doctrine called "absolute immunity" that is one of the greatest, though least discussed, examples of judicial activism in history. So prosecutors won't punish prosecutors, and victims of prosecutors' wrongdoing can't even sue them for damages.

That leaves courts without much else to do besides throwing out charges in cases of outrageous misconduct. But if we care about seeing the law enforced fairly and honestly, we need more accountability.

Reynolds goes on to suggest some reforms, the most important of which—as far as I'm concerned—is the abolition of absolute immunity for prosecutors. Like any other people in positions of authority, prosecutors need serious checks on their power; otherwise, all kinds of abuses are enabled.