Posts Tagged ‘absolute immunity’

Q&A Roundup Part 5

Friday, September 18th, 2015

I made a thing for Radley Balko at the Washington Post on Qualified Immunity. Some people had questions about it over on my comic, which was about something completely different. One of the WaPo pages mentioned the elimination of the KKK under President Grant.

Wait I thought that the KKK and Knights of the White Camilla weren’t so much defeated as succeeded in implementing policies after the compromise that brought Rutherford B Hayes into the White House?

There’s no doubt that Reconstruction failed, and racist policies were certainly implemented as a result — but the KKK itself did cease to exist as an organization. Another KKK would eventually be formed in 1915 or thereabouts, but that original one was gone.

The failure of Reconstruction is a fascinating area of our nation’s history that can be difficult to piece together, because almost everything written about it until maybe the 1960s was revisionist as hell. And even a lot of modern sources can be equally revisionist, just on the opposite swing of the pendulum. I think of the fiasco as a long string of failures and miscalculations, worsened by the economic depression of the 1870s, of which Hayes was only the last. (And speaking of revisionism, until the 1950s or 60s Hayes was lauded as the man who reunified the country, one of the greatest presidents!)

That is very interesting. However, what does any of this stuff about reconstruction have to do with law? Or the neuroscience of memory?

What, we haven’t had digressions here before? Just run with it.

As to the Qualified Immunity thing – is that the same doctrine that allows prosecutors to avoid any punishment when they do things like withholding evidence during discovery?

Nope. Different doctrine.

Prosecutors have something else called “absolute immunity.” They can’t be sued for stuff they did in their role as prosecutor, even if it was really really egregious and caused great injustice. They lose their absolute immunity only when they start doing the actual police work, at which point qualified immunity would instead apply. Apart from that, they have absolute immunity.

It can be a real problem: Prosecutors have insane power, and complete discretion as to how to use their power. But there’s no accountability for misuse or abuse of that power. Sure, there’s professional discipline for prosecutorial misconduct, but it’s rarely enforced. And it’s not the same as allowing the victim to sue the malefactor.

[A few states do allow suits for some prosecutorial misconduct. The damages are (I think) always paid from tax money in those cases, though, so even then the prosecutor herself isn’t at risk.]

We’ll cover all this in more detail when we get to Advanced Criminal Procedure. But that subject — what happens once you’ve been charged with a crime — is more about what the lawyers and judges can and cannot do. So I’m not going to get to that until I’ve at least done Constitutional Law and Torts, which are much more relevant (and interesting) to everyone else. So in the meantime, feel free to bring that stuff up here in the comments!


[If you want to read what I actually said about Qualified Immunity, click on the link at the top.]