{"id":2287,"date":"2024-10-28T20:21:23","date_gmt":"2024-10-29T00:21:23","guid":{"rendered":"https:\/\/www.law.georgetown.edu\/public-policy-journal\/in-print-2\/volume-22-issue-2\/the-illusion-of-absolute-prosecutorial-immunity-the-supreme-courts-legislative-magic-trick\/"},"modified":"2025-05-12T11:11:29","modified_gmt":"2025-05-12T15:11:29","slug":"the-illusion-of-absolute-prosecutorial-immunity-the-supreme-courts-legislative-magic-trick","status":"publish","type":"page","link":"https:\/\/www.law.georgetown.edu\/public-policy-journal\/in-print-2\/volume-22-issue-2\/the-illusion-of-absolute-prosecutorial-immunity-the-supreme-courts-legislative-magic-trick\/","title":{"rendered":"The Illusion of Absolute Prosecutorial Immunity: The Supreme Court\u2019s Legislative Magic Trick"},"content":{"rendered":"
\n

He\u2019s going to show you the bricks. He\u2019ll show you they got straight sides. He\u2019ll show you how they got the right shape. He\u2019ll show them to you in a very\u00a0special way, so that they appear to have everything a brick should have. But\u00a0there\u2019s one thing he\u2019s not gonna show you. When you look at the bricks from\u00a0the right angle, they\u2019re as thin as this playing card. His whole case is an illusion, a magic trick.1<\/span><\/p>\n<\/blockquote>\n

In 1871, the Forty-Second Congress, on the heels of sociopolitical\u00a0Reconstruction-era upheaval, passed the Civil Rights Act.2 <\/span>Oft referred to as the\u00a0Ku Klux Klan Act of 1871 or the Enforcement Act of 1871, this statute, purported to do exactly that: enforce the Fourteenth Amendment, defeat the Ku\u00a0Klux Klan, and expand civil rights in the South, protecting both recently\u00a0enslaved Blacks and white Republican voters who were being disenfranchised.3\u00a0<\/span>Section 1 of this Act lives on today as the highly litigated 42 U.S.C. \u00a7 1983. In 1994, one in ten civil district court filings were section 1983 claims.4 <\/span>More\u00a0recently, from 2023 to 2024, over 17,000 \u201cother civil rights cases\u201d were filed, of\u00a0which section 1983 presumably constituted a significant portion.5\u00a0<\/span>Section 1983,\u00a0today, states, in relevant part:<\/p>\n

\n

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or\u00a0causes to be subjected, any citizen of the United States or other person within\u00a0the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in\u00a0an action at law, suit in equity, or other proper proceeding for redress, except\u00a0that in any action brought against a judicial officer for an act or omission taken\u00a0in such officer\u2019s judicial capacity, injunctive relief shall not be granted unless\u00a0a declaratory decree was violated or declaratory relief was unavailable.<\/p>\n<\/blockquote>\n

This statute is so popular, especially amongst incarcerated persons, because it\u00a0provides one of the only avenues to seek redress against state officials for alleged\u00a0violations of Constitutional rights.6 <\/span>Whilst the language of \u201c[e]very person\u201d\u00a0appears to clearly encompass all state officials, the Supreme Court has increasingly narrowly tailored this language over the years: (1) Tenney v. Brandhove7 <\/span>in\u00a01951 which granted absolute immunity for state legislative officials; (2) Pierson\u00a0v. Ray8 <\/span>in 1967 which granted qualified immunity for state police officers and\u00a0absolute immunity for state judges; (3) Scheuer v. Rhodes9 <\/span>in 1974 which granted\u00a0qualified immunity for some state executive officials; (4) Wood v. Strickland10 <\/span>in\u00a01975 which granted qualified immunity for school officials; (5) and Imbler v.\u00a0Pachtman11 <\/span>in 1976 which granted absolute immunity for state prosecutors.<\/p>\n

This grant of absolute immunity for state prosecutors was a usurpation of legislative powers. This was in direct contradiction with the text and intent of the Civil\u00a0Rights Act of 1871. It assumed that Congress should have explicitly derogated\u00a0the common law\u2014with derogation in this context being unheard of\u2014and that\u00a0Congress should have derogated a common law that simply did not exist. The\u00a0Supreme Court demonstrated impartiality by upending Congress\u2019s check on state\u00a0officials\u2014not because it was unconstitutional\u2014but because it did not comply\u00a0with their policy views, resulting in a lack of accountability for prosecutors.<\/p>\n

Part I will analyze how the Supreme Court effectively legislated absolute prosecutorial immunity by (A) looking at the Court\u2019s decision in Imbler to use (B) the derogation canon to ignore (C) Congress\u2019s textual intent of overruling the common law, (D) the sociopolitical climate evident in the legislative history, (E) and\u00a0the legal framework at the time. This allowed (F) the Court to supplant their version of the common law aligned with their policy goals. Next, in Part II, this paper\u00a0will denounce the separation of powers issues inherent in (A) removing an important check placed by Congress on state officials that (B) aligned with the late\u00a01800s populist movement and (C) resulted in modern-day rampant prosecutorial\u00a0misconduct.<\/p>\n

Continue reading.<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

He\u2019s going to show you the bricks. He\u2019ll show you they got straight sides. He\u2019ll show you how they got the right shape. He\u2019ll show them to you in a […]<\/p>\n","protected":false},"author":10127,"featured_media":0,"parent":2080,"menu_order":12,"comment_status":"closed","ping_status":"closed","template":"abstract.php","meta":{"_acf_changed":false,"_price":"","_stock":"","_tribe_ticket_header":"","_tribe_default_ticket_provider":"","_tribe_ticket_capacity":"0","_ticket_start_date":"","_ticket_end_date":"","_tribe_ticket_show_description":"","_tribe_ticket_show_not_going":false,"_tribe_ticket_use_global_stock":"","_tribe_ticket_global_stock_level":"","_global_stock_mode":"","_global_stock_cap":"","_tribe_rsvp_for_event":"","_tribe_ticket_going_count":"","_tribe_ticket_not_going_count":"","_tribe_tickets_list":"[]","_tribe_ticket_has_attendee_info_fields":false,"footnotes":"","_tec_slr_enabled":"","_tec_slr_layout":""},"class_list":["post-2287","page","type-page","status-publish","hentry"],"acf":[],"ticketed":false,"_links":{"self":[{"href":"https:\/\/www.law.georgetown.edu\/public-policy-journal\/wp-json\/wp\/v2\/pages\/2287","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.law.georgetown.edu\/public-policy-journal\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.law.georgetown.edu\/public-policy-journal\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/public-policy-journal\/wp-json\/wp\/v2\/users\/10127"}],"replies":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/public-policy-journal\/wp-json\/wp\/v2\/comments?post=2287"}],"version-history":[{"count":6,"href":"https:\/\/www.law.georgetown.edu\/public-policy-journal\/wp-json\/wp\/v2\/pages\/2287\/revisions"}],"predecessor-version":[{"id":2363,"href":"https:\/\/www.law.georgetown.edu\/public-policy-journal\/wp-json\/wp\/v2\/pages\/2287\/revisions\/2363"}],"up":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/public-policy-journal\/wp-json\/wp\/v2\/pages\/2080"}],"wp:attachment":[{"href":"https:\/\/www.law.georgetown.edu\/public-policy-journal\/wp-json\/wp\/v2\/media?parent=2287"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}