By Bennett L. Gershman

Introduction: Imbler v. Pachtman Thirty-Four Years Later
For those of us who teach and write about the conduct of prosecutors, reading Imbler v. Pachtman thirty-four years later is a profoundly disturbing experience. Imbler is the linchpin for the doctrine that affords prosecutors absolute immunity from civil liability for actions that violate a defendant’s constitutional rights. Despite its revisionist history and dubious policy, Imbler is one of the Supreme Court’s most durable precedents, having been reaffirmed several times, including as recently as last Term.

The Court in Imbler viewed the prosecutor as a “quasi-judicial” official, much like a judge or a grand juror, for whom absolute immunity is vital to protect the judicial process from harassment and intimidation. Thus, according to Imbler, when a prosecutor initiates a prosecution and pursues a criminal case, the prosecutor is cloaked with absolute immunity from civil liability to allow the prosecutor to make discretionary decisions fairly and fearlessly without the distraction of a flood of civil lawsuits by disgruntled defendants. The Court acknowledged the hard choice between the evils inherent in either alternative but, quoting Judge Learned Hand, concluded that it is “in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.”

As an open question thirty-four years ago, Imbler’s choice to afford prosecutors absolute immunity for advocacy functions was not entirely unreasonable. Although the Court invented a specially tailored common law history for absolute immunity, and concocted a public policy to spare prosecutors from having to defend civil lawsuits, Imbler’s accommodation is not without contextual justification. Civil rights litigation thirty-four years ago was much less hospitable to prosecutors; qualified immunity was not nearly as protective of prosecutors as it is today. Moreover, alternative sanctions for misconduct, such as criminal prosecution and professional discipline, were not clearly unavailable or ineffective; the Court was making an educated guess that these checks might serve as an effective deterrent to misconduct.9 Further, the Court’s attempt to classify a prosecutor’s conduct into functional categories such as advocacy, investigation, and administration, while not seamless and easily applied, seemed rational. In any event, as the Court acknowledged, these attempts may present close questions requiring linedrawing in future cases. Most importantly, however, the Court did not discuss the larger problem of prosecutorial misconduct, particularly as it relates to the prosecutor’s duty to disclose exculpatory evidence; the subject was not nearly as complex and controversial as it is today.

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