Though late in the session, the hearing was well-timed since retired Supreme Court Justice John Paul Stevens that very evening gave a speech (pdf) on the same topic, according to the Wall Street Journal Law Blog, arguing for elimination of the "federal judge-made rule" granting prosecutors "absolute immunity." Stevens declared that "this judge-made rule misconstrued the intent of the Congress that enacted section 1983 and is based on a misunderstanding of relevant history." He even quoted an opinion from Judge Richard Posner who concluded that the rule is "based on what scholars agree are historical misunderstandings (which are not uncommon when judges play historian)." Notably, though he was actually a Republican appointee, Stevens was widely considered a "liberal" jurist on the Supreme Court, while Posner enjoys the reputation of an arch-conservative. Both, though, agree this "judge-made rule" has no basis in either history or statute.
Stevens also cited an upcoming paper in the Texas Journal on Civil Liberties and Civil Rights, "Congress Needs to Repair the Court’s Damage to § 1983," by Ivan Bodensteiner, who identified "seven major areas—individual immunity, governmental entity immunity, supervisory liability, color of law, limitations on punitive damages, enforcement of statutory rights, and preclusion—in which the Court‘s interpretation of §1983 has narrowed ... [in ways that] are not supported by either the language of §1983 or public policy considerations." Bodensteiner argues for Congress to amend Section 1983 to eliminate both absolute and qualified immunity in most instances, suggesting specific statutory revisions to that effect.
Which is where Rep. Burnam's bill comes in, providing a state-level remedy to federal judicial activism. Since it's unlikely Congress will anytime soon take up this cause, CSHB 2641 creates a new Sec. 1983-style civil rights statute for Texas that limits immunity for prosecutors. His legislation wouldn't go so far as to abolish all immunity, making his proposal seem moderate by Stevens and Bodensteiner's standards, but would limit prosecutors to "qualified immunity," which is the same as that presently enjoyed by police officers.
At the hearing Monday, a bevy of prosecutors put in cards to indicate opposition, though none of them wanted to stand up and tell the committee in oral testimony why they deserve more protection than cops when doing their jobs. (See the video of the hearing here, beginning at the 25:00 mark.) I testified on behalf of the Innocence Project of Texas and a rep from the Texas Defender Service discussed the need for the change in the context of the Anthony Graves case, where extreme prosecutorial misconduct caused the federal 5th Circuit to overturn Graves' death sentence. Though it's late for the bill to make it through regular channels, it's still possible it could be tacked onto other legislation as an amendment.
Whether or not the Texas Lege addresses the subject in the 82nd session, it's clear the issue isn't going away as long as some prosecutors cheat to win. And between Rep. Burnam's legislation and Justice Stevens' speech on Monday, it seems like a lot more folks are considering legislative solutions to this judge-created problem than at any time in recent memory.
See related Grits posts:
- SCOTUS seems indifferent to prosecutorial misconduct
- 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?