Prosecutors cannot be sued for injuries caused by their own misconduct. For example, even if a prosecutor deliberately withholds exculpatory evidence in violation of professional ethics and a defendant’s constitutional rights, and this willful misconduct results in an innocent person spending decades behind bars for a crime of which they are subsequently exonerated—the prosecutor remains immune from civil liability.

The policy of absolute prosecutorial immunity comes not from Congress but from the Supreme Court, which took 42 U.S.C. § 1983’s command that “every person” who, acting under color of law, violates the rights of another, “shall be liable to the party injured,” and added “except for prosecutors.” Was the Court’s originalist reasoning sound? Would a different policy open the floodgates and subject prosecutors to endless litigation, as the majority feared? And are there really other ways of ensuring proper accountability for some of the most powerful actors in our system of government?

This Teleforum considers whether it is time to reconsider absolute prosecutorial immunity and, if so, how we might balance the need for accountability and redress with the very real concerns of prosecutorial independence and efficacy.


Moderator: John G. Malcolm, Vice President for the Institute for Constitutional Government, The Heritage Foundation 

Clark Neily, Vice President for Criminal Justice, Cato Institute.

Geoffrey D. Wilson, Director At-Large, Central District of California, National Association of Assistant U.S. Attorneys 

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