The U.S. Supreme Court is oblivious to a serious problem in the American legal system: prosecutorial misconduct. Study after study has demonstrated serious prosecutorial misconduct at both the federal and state levels. For example, early this month, the Northern California Innocence Project at Santa Clara University School of Law released a study in which it documented 102 California cases, and 31 from Los Angeles County, in which prosecutors engaged in misconduct. Egregious prosecutorial misconduct has occurred in high-publicity cases, such as the prosecution of the Duke University lacrosse players and the conviction of the now late Alaska Sen. Ted Stevens.There's no law granting immunity to prosecutors from lawsuits, it's a doctrine generated via judicial activism without any statutory basis. Indeed, I've never understood why courts give prosecutors "absolute" immunity when police officers only have "qualified" immunity. Many incidents that get police sued stem from split-second decisions - shootings, questionable searches, etc. - while prosecutors have much more time to deliberate over their judgments. Why should a prosecutor who withholds exculpatory evidence for months or years have less liability than a police officer who had to make a decision in the blink of an eye?
Unfortunately, the Supreme Court has not gotten the message. Twice in the past three years the Court has considered lawsuits by innocent individuals who were convicted and spent years in prison because of prosecutorial misconduct. In both instances, the Court held that the victims could not recover. Together, these cases send a disturbing message that the Court is shielding prosecutors from liability. The result is no compensation for wronged individuals and a lack of adequate deterrence of prosecutorial misconduct.
The disturbing result, Chemerinsky argues, is that "the Court has made it much harder to hold prosecutors accountable and has sent a disturbing message that it just doesn't realize that there is a serious problem that infects our criminal justice system." You could say the same thing about Texas courts, and the state bar, and just about everybody else whose job it should be to hold prosecutors accountable for misconduct.
MORE: From Paul Kennedy.
See related Grits posts:
- Legislature should limit immunity for sleazebag prosecutors like Charles Sebesta
- A 'perverse' position on prosecutors fabricating evidence ... from the Obama Administration
- Prosecutors seldom disciplined for misconduct; can they be held liable in civil court?
- Prosecutors ask SCOTUS for 'absolute immunity' when fabricating evidence
- Prosecutorial hubris, entitlement, on display in recent cases
- Improving prosecutorial accountability
- What sanctions for prosecutors who cheat to win?