Monday, February 09, 2009

Outstanding Prosecutorial Immunity Debate

At Liestoppers Meeting sceptical notes:

There has been a good debate about prosecutorial immunity in the comments section of DIW featuring Prof. Bill Anderson (anti) and "One Spook" (pro).
Sceptical pastes in some key parts of the debate. They serve as a nice “starter.” Read them here. As you scroll down you'll see Bill Anderson comes along and adds some words.

I hope sceptical's "starter" tempts you to read the debate on this Durham-in-Wonderland thread if you haven't done so already. Start at the top and keep scrolling.

Hat tips to Bill Anderson and One Spook. It’s a pleasure to read such informed, civil, on point and thought-provoking argument.

And thanks to sceptical and Liestoppers Meeting for spreading the word, and to KC Johnson for "hosting" the debate.


Ex-prosecutor said...

I agree with One Spook that, to have a functioning justice system, prosecutors must have absolute immunity while in their courtroom roles. Otherwise, here's what would happen.

You simply cannot equate prison inmates with others who might have a claim.Inmates can lie without penalty. A consecutive sentence for perjury is pointless, for they already are in prison, generally for a long time. Likewise, since they have no money, financial sanctions are pointless. Basically, inmates are free to file civil lawsuits full of lies.

Upon arrest, defendants are entitled to a preliminary hearing, where the prosecution must show that a crime probably was committed and the defendant probably did it. This would be the rise of the defendant's first cause of action against the prosecutor, claiming that the prosecutor knowingly had presented perjured testimony and similar claims.

When the defendant then makes an appearance in the trial court, the same claim could be made in a second lawsuit. Criminals have very fertile and could come up with ingenious claims.

So, even though the inmate has not yet been tried, he already could have two or more civil lawsuits pending. The prosecutors would have to file responses to these suits, meaning they would have to have lawyers.

Our system of civil law is intended to give wronged parties their days in court. There is no inexpensive way to weed out bogus claims without defense costs.

Who pays for the lawyers? Prosecutors are grossly underpaid. The cost of defending a few lawsuits would be more that the prosecutors' salaries.

So, the state or federal government would have to pay, and the costs would be far more than currently is spend on prosecutors' budgets.

Criminal trials would go on forever. A convicted defendant could sue his prosecutor and there then would be a second trial of sorts, where the lawyer representing the prosecutor would have to show that the claims of the criminal defendant were without merit.

Of course, the unsuccessful innate could appeal all dismissals of his lawsuits. Thus, the prosecutor-defendant would incur additional legal costs.

Without absolute immunity for courtroom activities, there would be no prosecutors. While such a change has superficial appeal, in practice it would be a disaster.

Ex-prosecutor said...

In several states, there are groups seeking to strip judges of judicial immunity. To my knowledge, it has gotten on the ballot only in South Dakota, where it lost in 2006. However, unlike the reasonable, but short-sighted, arguments for limiting prosecutorial immunity, "Jail4judges" is off the charts.

An article in Slate magazine described it:

Anonymous said...


After reading through all the pro/con arguements on how to limit abuses by prosecutors, I have come to the conclusion that sunshine is still the best disinfectant.

Grand jury testimony should be recorded and available to the defendant. There should be some avenue (however limited it might be) for a defendant to defend himself during the grand jury proceedings. (In Texas, for example, a Democrat partisan prosecutor routinely obtained g.j. indictments against political enemies at the drop of a hat. Those actions are unethical and a perversion of the judicial system.)

I am curious as to what changes you might recommend?