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.

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  1. But,their the ‘good guys’

    1. They’re but for the grace of God, amirite?

  2. What the hell is wrong with Kern County’s DAs?

    Seriously, can we nuke the place from orbit or something?

  3. Kamala Harris is the California AG and is running for the Senate in 2016. She is the one who ordered the case appealed and wanted to make sure the government suffered no penalty here other than losing the charge with the faked confession. Since she is a Democrat and a black woman she is virtually assured of winning next year. Isn’t that great?

    Understand this case involved two charges; a molestation charge and a separate aggravating charge. The prosecutor inserted a confession to the aggravating charge into a confession for the molestation charge. The judge rightfully threw out both charges as a sanction for such outrageous conduct. The state’s argument on appeal was “just because we lied to the court doesn’t mean a child molester should go free.” That argument does make sense at one level. The problem is that since the state will never hold its prosecutors accountable for misconduct, no matter how outrageous, throwing out both charges is the only remedy and deterrent available to the courts.

    Thanks to the total unaccountability of prosecutors and the utter depravity of this one, a guy who is actually guilty of molesting a child rightfully gets to walk free.

    1. “For reasons beyond comprehension…”

      No, the ignoble reasons are quite comprehensible.

  4. China punishes abuse of power with the death penalty. We could learn something from them.

    1. i know your joking but I can’t imagine that being a viable solution that would result in anything but a vast purging of “dissidents”.

      1. Why do you think I’m joking? If it could be proved without a shadow of doubt that a prosecutor or cop falsified or withheld evidence, or committed perjury, then I completely support putting them to death.

        1. I was under the impression that you were against the Death Penalty for private citizens? If you can trust the Gov. to dispense in fair sentences for that why would you when they were trying to kill political colleagues.

          1. *can’t

          2. I don’t consider cops or politicians to be human beings.

            1. also, this ^^

            2. Okay that view makes it only more likely that they will act in maniacally in their own self interests which is the purging of all enemies.

              1. I see your point, but the fact is that they face no consequences for their misdeeds. Maybe if they did then they’d act differently.

                1. Privatize police and have peace officers face the exact same set of laws with no exceptions, and I guarantee their behavior will improve.

                  Cops are anatomically indistinguishable from more moral humans, so it’s not magic that makes cops act the way they do, it’s the incentives of the system that attract shitbags and inspires the non-shitbags to become shitbags and in engage in acts of shitbaggery.

              2. I read it as mild hyperbole, with generous dollops of cynicism and gallows humor, the essential point of which was bang on.

                Drink more coffee. It’s too early for this shit.

                1. Oh, bugger. I was responding to Idle Hands. So long as I’m having to clarify, Free Society earned a slow clap.

                  *slow clap*

          3. I say the Reason Commentariat? decides whodies, not Gov officials. And shriek, Botard and Tony (and any of Mary Stacks trolls) don’t get to play.

            Takes care of that problem.

            Release the Warty!

            1. First STEVE SMITH! Then the Warty!

        2. Unfortunately, they can only die once.

          1. We need to import former SAVAK members to torture their families to death first.

          2. Butbutbut I have it on firmest authority that cowards die a thousand deaths.

      2. You don’t know sarc very well, do you?

      3. i know your joking but I can’t imagine that being a viable solution that would result in anything but a vast purging of “dissidents”.

        Executing GOVERNMENT OFFICIALS who use the power of the state to crush individuals? Yes please. There’s no such thing as a tyranny of the people over their government. Categorically it can only work in the opposite direction.

        1. Seeing as how the vast majority of people in this country are slavish to a central state authority I don’t see how that prescription would lead to anything but tyranny, at this time.

          1. So criminalizing the wielding of state power punitively, would result in tyranny?

            1. I don’t believe I said that.

              1. or if you inferred that I am against punishing those who abusively use their positions of power, I apologize. I’m just stating that if you went down the road of passing a policy that Sarcasmic proposed, under the current system, would fast track the death of liberty in this country.

                1. No death penalty is boon for liberty, for sure. But changing the perversed incentives of our political overlords should be a priority. The stakes should be higher. The Lois Lerners and other assorted government cunts should have their lives destroyed when they maliciously destroy the lives of others.

            2. Let me pick up that microphone for you. You dropped it.

    2. No. China, on occasion, throws an official to the wolves on occasion because somebody pissed off the wrong people. If they truly punished abuse of power, they would have the Party Members swinging from ropes.

      1. I thought that was Korea?

        1. China, Korea….whatevs

      2. There are so many anti-corruption laws in this country especially the vague quid-pro-quo like what McConnell and now Mendez are guilty of that you could literally find every politician guilty who was considered an enemy of your administration. Kind of like what is happening now.

        1. That’s because there are no ethics in politics in this country. Enforce those laws and maybe we’d see some. Ethics that is.

          1. More like you would see the creation of a one party state.

            1. Sweden is a one party state?

            2. More like you would see the creation of a one party state.

              If anti-corruption and abuse of power laws were truly enforced, the government would cannibalize itself. But it’s not as though we need to accept immunity for government actors or accept a totalitarian state. That’s the very soul of a false dichotomy.

              1. For what you describe you would have to have a relatively well informed voting populous. Something the current electorate doesn’t come close to resembling and in my opinion is near impossible to have unless you have a substantially smaller population.

        2. Yes. I still haven’t figured out what McDonell actually did. He took a bunch of gifts and introduced some guy around. That is pretty much how politics works.

          And don’t forget the campaign finance laws that are also insanely vague and complex and criminal. The whole thing is designed to ensure that no one who is not an insider and beholden to the system can ever get elected.

    3. I’d be happy if the penalty for perjury were the maximum penalty the perjury could have caused.

      If you frame a burglary charge and burglary has a maximum penalty of 10 years, you get ten years.

      If you frame a child molestation charge and the maximum penalty is life, you get life.

      Especially it has to be the maximum penalty the perjurer could have caused. No dicking around trying to determine what would have happened, just throw the book at the perjurer. If this means three strikes would have kicked in for the perjured individual, then that penalty kicks in for the perjurer, regardless of whether three strikes would have applied to the perjurer.

      As far as I’m concerned, perjury is about the worst possible crime, far beyond murder. Probably not as bad as genocide, but that’s a whole nuther ball of wax.

  5. Abuses? Are you trying to stir up some kind of conspiracy?

  6. 1) You know who else spread lies to advance their own agenda….

    2) If you’ve done nothing wrong, you have nothing to worry about, right?:\

    Sheesh – you people are paranoid.

  7. OT: Goddamned Girls Scouts were selling their Satan-inspired wares at Lowes this weekend. The monsters practically forced me to buy – I managed to restrain myself to one box of Trefoils.

    And it’s taken me three days to eat them – I think that’s a record. I’m just finishing my breakfast of half a sleeve.


    *shakes fist*

    1. I haven’t bought any since they discontinued the lemon sandwiches.

    2. They are part of The Pentavirate. They use the same ingredients as KFC that make you crave their cookies fortnightly.

    3. Every box of cookies you buy goes to support the Matriarchy.

      1. Well, my mom’s OK, so…I’m good with that.

  8. shit

    1. Sandi?

  9. http://www.bakersfieldcaliforn…..ranscripts

    “A Kern County prosecutor is on administrative leave and the subject of a criminal investigation in connection with allegedly falsifying part of a transcript in a child molestation case.

    The prosecutor, Robert Murray, said the situation is nothing more than a joke taken the wrong way by the deputy public defender assigned to the case. “

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  11. As is the case with government; employees – social-workers and foster persons – are immune from being held responsible for wrongdoing due to affiliation with the System. Beyond unfair, a breach of ethics, it is dangerous practice to exclude segments of society from culpability: Lack of punishment offers no incentive for improvement. Thus, families continue to be failed; vulnerable children victimized and lives lost. – VM

  12. Absolutely. That being said, how come it seems that there are virtually no checks on the antics of prosecutors?

  13. Walker refers to Reynold’s suggested remedies but doesn’t provide them so I will:

    “First, courts should sanction prosecutors directly and personally for misconduct. Second, legislatures need to pass laws promoting accountability ? and ensuring that prosecutorial misconduct is policed by someone other than the same prosecutors’ offices that are committing it. Third, the notion of absolute immunity for prosecutors, which has no basis in the law or the Constitution, needs to be abolished.”

    Isn’t this exactly the situation in which the federal government should prosecute the prosecutor for violating the civil rights of the victim? Now if Velasco were black, then Holder/Sharpton/Jackson might have gotten involved. But no such luck here.

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