Immunity and Impunity

Prosecutors Also Have Immunity

"Prosecutorial immunity" is a judge-made doctrine that cloaks prosecutors in near-absolute immunity from suit. Under this doctrine, prosecutors cannot be sued for any actions related to their job as a prosecutor, no matter how egregious the behavior. For example, prosecutors cannot be sued for knowingly prosecuting an innocent person, withholding evidence of innocence, or even fabricating false evidence of guilt.

Prosecutorial immunity is an absolute shield against damages lawsuits for claims that arise from prosecutorial actions. Believing that the constant worry of lawsuits would impede a prosecutors' ability to do their job, in its 1976 decision Imbler v. Pachtman, 424 U.S. 409, the Supreme Court created this immunity to serve the "public trust" and ensure "the proper functioning of the criminal justice system."

Instead, experience shows that this immunity enables prosecutors to disregard constitutional rights in order to pursue convictions. Examples of prosecutors escaping liability are ubiquitous in the United States. For example, the Second U.S. Circuit Court of Appeals recently ruled that a group of nurses could not sue Suffolk County prosecutors who hid evidence and engaged in other misconduct as a political favor.

Similarly, a Maryland court held in 2021 that a prosecutor could not be held personally accountable for withholding lab test results proving that a man jailed for allegedly flying with methamphetamines was in fact carrying only honey, just like he said. In both cases, prosecutors withheld the truth to serve their own interests, and they were never held to account for their violations because of prosecutorial immunity.

Judicial Immunity

Stump v. Sparkman, 435 U.S. 349 (1978), is the leading United States Supreme Court decision on judicial immunity. It involved an Indiana judge who was sued by a young woman who had been sterilized without her knowledge or consent as a minor in accordance with the judge's order. The Supreme Court held that the judge was immune from being sued for issuing the order because it was issued as a judicial function. The case has been called one of the most controversial in recent Supreme Court history.

In 1971, Judge Harold Stump granted a mother's petition to have a tubal ligation performed on her 15-year-old daughter, who the mother alleged was "somewhat retarded." The petition was granted the same day that it was filed. The judge did not hold a hearing to receive evidence or appoint a lawyer to protect the daughter's interests. The daughter underwent the surgery a week later, having been told that she was to have her appendix removed.

The daughter married two years later. Failing to become pregnant, she learned that she had been sterilized during the 1971 operation. The daughter and her husband sued the judge and others associated with the sterilization in federal district court.

The district court found that the judge was immune from suit. The Seventh Circuit Court of Appeals reversed the decision, holding that the judge had lost his immunity because he failed to observe "elementary principles of due process" when he ordered the sterilization. Finally, in 1978, the U.S. Supreme Court, in a 5-3 decision, reversed the Court of Appeals, announcing a test for deciding when judicial immunity should apply and holding that the judge could not be sued. This case is included in my book Black Mondays: Worst Decisions of the Supreme Court.

All of these grants of immunity are court-made, not based on the Constitution or federal or state law. If judges, police officers and prosecutors are above the law, why not the President of the United States?

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