Our criminal justice system depends on honesty. It’s also based on the principle that people who do wrong should be punished. Prosecutors, however, often avoid any consequences for their misbehavior, even when it is repeated.
Worse yet, prosecutors are also immune from civil suit, under a Supreme Court-created doctrine called “absolute immunity” that is one of the greatest, though least discussed, examples of judicial activism in history. So prosecutors won’t punish prosecutors, and victims of prosecutors’ wrongdoing can’t even sue them for damages.
That leaves courts without much else to do besides throwing out charges in cases of outrageous misconduct. But if we care about seeing the law enforced fairly and honestly, we need more accountability.
First, courts should sanction prosecutors directly and personally for misconduct. Second, legislatures need to pass laws promoting accountability — and ensuring that prosecutorial misconduct is policed by someone other than the same prosecutors’ offices that are committing it. Third, the notion of absolute immunity for prosecutors, which has no basis in the law or the Constitution, needs to be abolished.
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