Is it time to reevaluate absolute immunity for prosecutors?

Bidish Sarma writing for the American Constitution Society examined Absolute Immunity for Prosecutors.

Four decades ago, the U.S. Supreme Court implemented a major, nationwide policy that consolidated prosecutorial authority: it granted prosecutors absolute immunity for acts committed in their prosecutorial role. This decision sheathed prosecutors in protective armor while they pursued criminal convictions through an era of crime-related hysteria, and it eroded one of the few mechanisms available to hold prosecutors accountable. Considering the growing call to acknowledge and address an epidemic of prosecutorial misconduct, now is a critical time to reflect on Imbler v. Pachtman and evaluate whether it holds up to modern-day scrutiny.

Sarma concluded that absolute immunity for prosecutors did not make much sense in 1976, and it makes no sense today. Revisiting the doctrine does not entail a constitutional change; instead, the Court simply needs to update its view on absolute immunity’s applicability (or correct its interpretation of the federal statute). Increasingly, we have recognized that prosecutorial discretion in charging and plea bargaining invisibly resides at the center our criminal justice system. If we are serious about reducing mass incarceration or, more modestly, improving the system’s fairness, we need accountability for the actors who have been authorized to charge, try, and convict. To this point, there has been little more than moral hazard and prosecutorial impunity.

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