Previously posted to SSRN.

Abstract

Prosecutors, like judges, cannot be sued for their professional misconduct in most jurisdictions. As long as their actions are sufficiently tied to their job duties, their actual malice does not matter, even if they had demonstrable malice-a prosecutor could bring baseless charges against an ex-spouse specifically to harass them, with absolute immunity from suit. This immunity allows prosecutors to abuse the power of their office without civil recourse. In theory, absolute immunity aims to protect the office by resolving cases simply and quickly, but in reality, courts get bogged down litigating whether a prosecutor's specific action was sufficiently tied to their role. This disconnect is illustrated by the existence of at least seven federal circuit splits about the exact contours of absolute immunity. 

Although most lawsuits brought against prosecutors come through federal courts, the criminal system itself is best understood as a network of state and local policies. Different states developed different approaches to prosecutorial immunity over the course of more than a hundred years, creating something like a natural experiment that contradicts federal assumptions. I compiled a first-of-its-kind dataset of 353 civil suits in state courts against prosecutors for misconduct, and reached three important conclusions. 

First, cases raise far broader harms by prosecutors than traditional wrongful-conviction-oriented solutions can address. Second, because state courts see complex factual litigation no matter the immunity rule, a lesser immunity standard strikes a better balance between protecting prosecutors and permitting relief for the rare meritorious claim. Third, the applicable immunity regime does not appear to impact the use of other remedies for prosecutorial misconduct, such as bar discipline. Thus, I propose that states seeking improved prosecutor accountability can safely adopt a good-faith qualified immunity standard.

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