History and Background

In 1976, the Supreme Court decided that prosecutors have absolute immunity—and so cannot be sued—for misconduct related to their advocacy in the courtroom. Imbler v. Pachtman, 424 U.S. 409 (1976). The Court expressed concerned that if prosecutors could be sued for decisions they make, they may start second-guessing themselves: “[It is] better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.” Id. at 428. That means prosecutors cannot be sued for injuries caused by their own misconduct—for example, coercing witnesses to lie, hiding evidence of innocence, or fabricating evidence of guilt—even when they’ve intentionally violated an individual’s constitutional rights or caused a wrongful conviction.

This absolute protection for prosecutors was made up wholesale by judges; it does not appear in the Constitution or in any law passed by Congress. In fact, Section 1983 (the Civil Rights Act) expressly says “every person” who violates the rights of another “shall be liable to the party injured.” 42 U.S.C.§ 1983. But courts have read in a special exception for prosecutors. In other words, judges (all of whom are lawyers and many of whom are former prosecutors) decided that prosecutors should have complete immunity from suit, no matter how intentionally wrongful their conduct. By comparison, qualified immunity for police officers protects an officer only if his conduct was not clearly wrong.

Here’s a non-exhaustive list of the type of misconduct for which prosecutors are entitled to absolute immunity because these actions purportedly relate to their role in the judicial process:

• Falsifying evidence
• Coercing witnesses
• Soliciting and knowingly sponsoring perjured testimony
• Withholding exculpatory evidence and/or evidence of innocence
• Introducing evidence known to be illegally seized at trial
• Initiating a prosecution in bad faith (in other words, for personal reasons or with knowledge that the individual didn’t commit the crime)

Absolute immunity for prosecutors is especially dangerous as the current system already incentivizes prosecutors to secure convictions at all costs, with promotions, re-election, and elevation to higher office often contingent on procuring as many convictions as possible. Prosecutors enjoy an immense amount of power: they decide about charges, plea deals, even when to seek the death penalty, yet given absolute immunity they’re more shielded from liability and accountability than even police officers. We should want prosecutors to think twice about pursuing unlawful conduct in pursuit of a conviction, but because of absolute immunity there’s no deterrent under the law against overzealous prosecutors crossing the line. In theory, prosecutors can be held accountable in other ways (for example, through disciplinary actions by the bar) but that pretty much never happens. Indeed, a study by the Innocence Project of 75 DNA exonerations—where the defendants were found to be unquestionably innocent—found that prosecutorial misconduct contributed to almost half of those wrongful conviction, yet none of those prosecutors faced any serious professional sanctions.

Not only do individual prosecutors enjoy absolute immunity, but the Supreme Court in Connick v. Thompson, 563 U.S. 51 (2011), held that a district attorney’s office cannot be sued for failing to train prosecutors on their duty to disclose exculpatory evidence (like evidence of innocence). The plaintiff John Thompson spent 18 years wrongfully incarcerated—14 of those on death row—even though prosecutors had a report showing that the blood type of the true perpetrator did not match Thompson’s. After he was exonerated, Thompson brought a civil case against the Orleans Parish District Attorney’s Office to seek damages for the 18 years he spent wrongfully incarcerated. The jury found the DA’s office failed to properly train its prosecutors about their constitutional duty to disclose evidence and awarded Thompson $14 million. But the Supreme Court reversed that award and removed yet another avenue for holding prosecutors accountable. Notably, one of the prosecutors in Thompson’s case was responsible for sending five other men to death row—of those six men, five ended up having their convictions reversed because of prosecutorial misconduct. But none can bring a lawsuit against that prosecutor individually or his office.