Stanford Journal of Civil Rights & Civil Liberties
Criminal prosecutors wield immense power in the criminal justice system. While the majority of prosecutors exercise this power in a professional manner, there is compelling evidence of a serious and growing problem of prosecutorial misconduct in this country. Although much prosecutorial misconduct results in the violation of the constitutional and other legal rights of criminal defendants, prosecutors are protected from any liability arising from these violations in all but the most exceptional cases by the defense of absolute immunity. The US. Supreme Court has justified the application of absolute prosecutorial immunity, in part, by noting that other means of incentivizing appropriate prosecutorial conduct exist, namely criminal prosecution and professional sanction. This Article briefly documents the extent of the problem of prosecutorial misconduct in this country and the complete ineffectiveness of non-civil liability mechanisms for controlling it. It argues that absolute immunity is an excessive protection for prosecutors and that qualified immunity, which limits the liability of prosecutors to instances where they have violated an objectively clear constitutional right, is sufficient to serve the policy objectives that absolute immunity was created to protect. This Article discusses the sufficiency of qualified immunity in the new context of the Supreme Court's recent decision in Ashcroft v. Iqbal, and the standard it announced for legal sufficiency for civil rights claims filed against prosecutors. This new standard was expressly designed to make it easier to dismiss factually weak claims against prosecutors thereby removing one of the central justifications for the absolute immunity defense applied by courts for decades in light of the previous, and more lenient, sufficiency standard articulated by the Court in Conley v. Gibson. Because qualified immunity is a sufficient liability protection for prosecutors (particularly in the post-Iqbal federal court system) the harsh and unjust defense of absolute immunity for prosecutors should be eliminated.