Prosecutorial immunity is a common-law doctrine that shields prosecutors from civil-rights lawsuits. Although Section 1983 was enacted as remedial legislation – and thus should be construed broadly – courts determined that public policy considerations trumped specific Congressional mandate. In Van De Kamp v. Goldstein, 129 S. Ct. 855 (2009) a unanimous Supreme Court quoted, approvingly, language from Chief Judge Learned Hand:
A half-century ago Chief Judge Learned Hand explained that a prosecutor’s absolute immunity reflects ‘a balance’ of ‘evils.’ Gregoire v. Biddle, 177 F. 2d 579, 581 (CA2 1949). ‘[I]t has been thought in the end better,’ he said, ‘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.’The belief seems to be that every litigant would sue prosecutors absent prosecutorial immunity. One who lacks a complete understanding of the law of Section 1983 might find that view persuasive. However, prosecutors would rarely face civil rights lawsuits – even if prosecutorial immunity were abolished.
In Heck v. Humphrey, 512 U.S. 477 (1994), the United States Supreme Court applied the favorable-termination rule (which applied to malicious prosecution claims) to most civil-rights actions that could be brought against prosecutors. In Heck, the Court held:
[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment ... a §1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.Heck v. Humphrey’s favorable-termination rule allows lawsuits against prosecutors only when a defendant has won. Prosecutors win the overwhelming majority of cases brought to trial. A prosecutor who loses more than 20% of her cases will not remain a trial lawyer in most offices.
Rarely are criminal cases reversed on appeal. In Winning on Appeal, Ruggero Aldisert compiled data, which showed that criminal convictions are reversed on appeal (or remanded for a new trial) in only 5.6% of all federal cases. Id. ("From this, we conclude that the reversal rates from 1998 to 2002 for all appeals averaged 9.54 percent. Expressed otherwise, here are your odds of reversing the district court: Criminal cases: 1 in 18 .")
In light of Heck v. Humphrey, is the supposed need for prosecutorial immunity persuasive? Moreover, even if prosecutorial immunity were abolished or limited, prosecutors would be immune from suit in nearly every case. Like all other governmental actors, prosecutors are entitled to qualified immunity.
One might wonder if judges - who were all once lawyers themselves - have allowed empathy to cloud clear judicial decision making.