The Failure of Prosecutorial "Peer Review," and the Supreme Court's Disregard for Empiricism

In Imbler v. Pachtman, 424 U.S. 409 (1976), the United States Supreme Court read prosecutorial immunity into 42 U.S.C. Sec. 1983 - even though Section 1983 did not exempt prosecutors from suit. Although the Court recognized that absolute “immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of his liberty,” id. at 427, this sacrifice of the individual was necessary for “the broader public interest.” Id. Moreover, a “malicious or dishonest” prosecutor would still face discipline because

a prosecutor stands perhaps unique among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers. These checks undermine the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime.
Id. at 428-29. Sounds fair, no? No.

In Kalina v. Fletcher, 522 U.S. 188 (1997), a Washington state prosecutor (Lynne Kalina) lied under oath:
Kalina's certification contained two inaccurate factual statements. After noting that respondent's fingerprints had been found on a glass partition in the school, petitioner stated that respondent had "never been associated with the school in any manner and did not have permission to enter the school or to take any property." In fact, he had installed partitions on the premises and was authorized to enter the school. She also stated that an employee of an electronics store had identified respondent "from a photo montage" as the person who had asked for an appraisal of a computer stolen from the school. In fact, the employee did not identify respondent.
Id. at 121. Was Ms. Kalina subject to “professional discipline” by “an association of [her] peers”?  Was she at least publicly criticized? No.

Instead, prosecutors all filed amicus briefs on her behalf! Id. at 120 ("Briefs of amici curiae urging reversal were filed [for]... Washington, ... for the Thirty-Nine Counties of the State of Washington, ... and for the National District Attorneys’ Association et al.")

Is Lynne Kalina merely an anecdote?  Unfortunately, no.  Prosecutors regularly escape sanction for misconduct.

he California Commission on the Fair Administration of Justice compiled data on prosecutorial misconduct.  (Here's the report.)  They had to do a lot of leg work, though:
Because District Attorney Offices typically do not keep statistics on the number of prosecutorial misconduct complaints filed against their office, we surveyed all California Court of Appeal decisions (published and unpublished) to determine the nature of prosecutorial misconduct problems and which jurisdictions were most affected. Appendix D contains a full report of those cases.
Think about that.  According to the conservative justices of the Supreme Court, prosecutors take prosecutorial seriously.  Yet no one is keeping track of data.  You can bet that the same offices that do not track prosecutorial misconduct do track conviction rates.  In fact, most prosecutors are data-crunching machines.  When it comes to misconduct, no one cares enough to even save an Excel sheet.

The CCFA Report was demoralizing:
Research identified 347 of the prosecutors and 30 of them were found to have committed misconduct more than once. Two of them actually did it three times. So what happened to them? In only one case was there a sanction - the prosecutor was disciplined by the State Bar.
Does the data support the Supreme Court's view that "a prosecutor stands perhaps unique among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers."  Imbler, 424 U.S. at 428?

The Department of Justice also does not take prosecutorial misconduct seriously.  The odds are less than 50-to-1 that a prosecutor reported for misconduct will receive even an informal sanction.  One might argue that prosecutors are unfairly subjected to false accusations of misconduct.  If that is your argument, consider this: Sixty-nine percent of investigated complaints were initiated by judges. Private lawyers and private litigants amounted for less than 3% of complaints leading to investigation.

Of the 84 cases worthy of investigation (58 of which were cases where a judge had already found prosecutorial misconduct), in only 18 cases were prosecutors disciplined. According to DOJ's Office of Professional Responsibility, federal judges are maliciously and falsely accusing prosecutors of misconduct.

The empirical evidence is clear.  Prosecutors do not face meaningful sanctions for misconduct.  Perhaps there are other good reasons to give prosecutors absolute rather than qualified immunity.  These reasons should be based on facts, however.

The Supreme Court's Imbler position is intellectually bankrupt.  A posteriori, the Imbler position is indefensible.

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