by Bidish Sarma, an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans.
Four decades ago, the U.S. Supreme Court implemented a major, nationwide policy that consolidated prosecutorial authority: it granted prosecutors absolute immunity for acts committed in their prosecutorial role. This decision sheathed prosecutors in protective armor while they pursued criminal convictions through an era of crime-related hysteria, and it eroded one of the few mechanisms available to hold prosecutors accountable. Considering the growing call to acknowledge and address an epidemic of prosecutorial misconduct, now is a critical time to reflect on Imbler v. Pachtman and evaluate whether it holds up to modern-day scrutiny.
In Imbler, the Supreme Court held that prosecutors are generally entitled to absolute immunity from civil liability under the federal civil rights statute, 42 U.S.C. § 1983, for actions, taken in their role as prosecutors, that may have violated the rights of a criminal defendant. Absolute immunity is exactly what it sounds like—a blanket and unconditional grant of protection from civil liability. A related doctrine, qualified immunity, also protects government officials from liability, but as the Supreme Court explained in Harlow v. Fitzgerald, only if “their conduct does not violate clearly established statutory or constitutional rights . . . .” Put simply, qualified immunity protects government officials who abide by the rules (although the law defines those rules very narrowly). Absolute immunity protects them from civil liability even when they break the rules.
As some on the Imbler Court worried, courts have applied absolute immunity broadly, even foreclosing civil suits in cases where prosecutors intentionally violate their constitutional obligation to turn over exculpatory evidence to defendants as required by Brady v. Maryland.
SCOTUS’s Imbler decision has been critiqued over the years. The opinion turned on two key considerations: (1) the Court’s view of immunities “historically accorded the relevant official at common law;” and (2) “considerations of public policy” underlying that historical rule. The Court’s view about the historical role of absolute immunity for prosecutors has largely been debunked by scholars and by none other than Justice Scalia who, in a concurring opinion joined by Justice Thomas, once observed that “[t]here was, of course, no such thing as absolute prosecutorial immunity when §1983 was enacted.”