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The Roberts Court: Immunizng the American Criminal Justice System From Justice and Due Process Since 2006


I have an article up at the Prospect about the most recent Roberts Court excrescence, which adds some further context.   I remain deeply unpersuaded by the majority’s reasoning that 5 prosecutors acting over nearly two decades doesn’t represent a pattern of misconduct — if that’s not enough, given the amount of serendipity that’s involved in uncovering even a single Brady violation we might as well just go ahead and say that administrators have absolute immunity too.    Of course, given the apparent belief of the Chief Justice of the United States that incentives that discourage prosecutorial misconduct are a bad thing, this is probably how the majority wants it:

The Court recently heard oral arguments in a case called Pottawattamie County v. McGhee, which involved a case in which a prosecutor procured false testimony and then introduced it at trial. The case was settled before the Supreme Court, and Chief Justice John Roberts twice fretted about the alleged “chilling effect” on prosecutors of not maintaining absolute immunity for prosecutorial actions at trial. As Radley Balko pointed out, the argument is bizarre in its misplaced priorities: “We want prosecutors to ‘flinch’ before introducing evidence they suspect might not be true. In fact, we want them to not introduce that evidence at all. And there should be a chilling effect on misconduct as egregious as coaching witnesses to lie.” And this unwillingness to create incentives that will discourage prosecutors from violating people’s rights is reflected in Thompson as well.

And making this all worse is the fact that the prosecutors working under Connick were already given absolute immunity (not required by Congress) for their actions as prosecutors in one of the Burger Court’s dizzier moments, which combined with this case creates a nice Catch-22 in which nobody in the prosecutor’s office can ever be held accountable for even the most flagrant rights violations. And that mistake, I should not, was cross-ideological: Brennan and Marshall joined a White concurrence attempting to limit the reach of absolute prosecutorial immunity but otherwise going along. With three decades’ hindsight, this was a mistake. I think the whole idea of absolute immunity for prosecutors is indefensible — the same qualified immunity received by police officers (and for prosecutors in the role as investigators) seems more than sufficient.

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