Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
As the Supreme Court considers the case of Pottawattamie v. McGhee and the notion of absolute prosecutorial immunity, here's a perfect example of why their ruling is so crucial to any notion of keeping "criminal justice system" a three-word phrase rather merely a criminal system. A federal judge has ruled that two judges who are accused of taking kickbacks to send juveniles to a privately-owned detention centers cannot even be taken to court on the matter.
Federal judge Richard Caputo granted partial immunity to the judges, both of whom have been accused of taking kickbacks from juvenile detention centers in return for sending business their way, in the form of juveniles, many of whom were sent off for weeks or months at a time for relatively minor infractions.Writing that judicial immunity does not operate on a "sliding scale," Judge Caputo ruled that the judges are protected by immunity from facing legal action for their courtroom acts. "The degree of corrupt behavior is not the touchstone of the immunity doctrine's application," Caputo wrote, acknowledging that his ruling runs contrary to "popular will." He added: "The doctrine holds that judges with bad intentions, as well as those with good intentions, are immune from suit."
This has nothing to do with being innocent before proven guilty. They would have that presumption in a court of law. But under the doctrine of prosecutorial immunity, they can't be punished even if they can be proven guilty. That's simply insane. It's not immunity, it's impunity. And it is manifestly dangerous and unjust.
Politics
Comments
Important qualifier: Caputo ruled that these judges are immune from civil liability. The criminal charges pending against them are still valid (though, admittedly, the jury will probably let them off on a the-kids-were-asking-for-it defense).
Posted by: mad the swine | November 30, 2009 10:23 AM
"This has nothing to do with being innocent before proven guilty. They would have that presumption in a court of law."
Do they have that presumption in a civil court?
Posted by: James K | November 30, 2009 10:35 AM
So, they're trying to argue that judges are completely immune from any and all legal challenge to their acts in a courtroom?
So a judge can be caught red-handed accepting bribes to decide cases in favor of one side regardless of the evidence, resulting in massive fines, wrongful imprisionment, and even death for innocent victims, and no one is allowed to call him on it?
A judge could just pull a gun and murder anyone he wanted in court, and he couldn't even be prosecuted?
Posted by: phantomreader42 | November 30, 2009 10:57 AM
They all should be hung, buried, dug up, and shot.
Posted by: Nattering Nabob of Negativism | November 30, 2009 11:17 AM
The judge accepting bribes will be prosecuted for taking them, but NOT for his wrongful decisions.
Posted by: Mu | November 30, 2009 11:25 AM
Mu:
But he made the wrongful decisions precisely BECAUSE he was taking bribes!
Posted by: phantomreader42 | November 30, 2009 11:29 AM
Ed: But under the doctrine of prosecutorial immunity, they can't be punished even if they can be proven guilty.
As a pedantic quibble, not within society's context of the Rule of Law (leaving aside the insanely unlikely possibility of Post-Facto Constitutional Amendment Of Attainder). Outside that context, vigilantes can punish via assaults or assassinations. However, that essentially amounts to starting a small-scale guerrilla war. Needing to start a war to solve an internal problem generally signifies a fundamental failure of the society, and furthermore lines right back up to manifestly dangerous again, in spades.
Posted by: abb3w | November 30, 2009 11:47 AM
IMO this case completely misses the point - government immunity is not immunity for civil suits 'for doing stuff while at work,' its immunity from civil suits for doing the job the government told you to do. Its not a judge's job to take money from defendants in return for a specific ruling.
IMO this is not like a firefighter trying and failing to save someone's life, this is like a firefighter taking a TV out of a burning apartment and keeping it. Just because a fire (or a court) happens to be involved does not make this part of your job.
In any event, I thought that courts have taken and ruled on immunity claims. Ergo, they've already tacitly accepted that a plaintiff can legally challenge someone's immunity in court. I don't see why that precedent wouldn't apply here (hoist by their own petard, as it were).
Posted by: eric | November 30, 2009 1:09 PM
So -- and I want to be clear on this -- what recourse would be available in the following scenario:
--
Small-town cop hauls someone in from the street, prosecutor files charges from his office next door, the two of them trot the accused next door to the courtroom, where Judge Roy Bean hears the charges and orders the accused executed by hanging on the spot. Judge, prosecutor, and deputy prosecutor drag the accused out back and string up the condemned.
The police in this might or might not be off the hook; there are precedents where police were held liable for serving an otherwise unremarkable warrant (since the judge has absolute immunity.)
However, the prosecutors and judge would, under the absolute immunity doctrine, be totally in the clear -- never mind that they had not one hint of law to go on.
---
Is this or is this not a possible scenario under "absolute immunity?"
Posted by: D. C. Sessions | November 30, 2009 1:54 PM
D.C. Sessions @ 9:
I think the prosecutors and judge would not be absolutely immune in that situation for murdering the defendant. The reason is because when they hanged him they weren't acting in their roles as prosecutor or judge. Physically carrying out death sentences isn't within their job description. Absolute immunity applies to actions taken within the scope of a prosecutor or judge's job -- so they aren't immune from suit if they get into a car accident, for instance, and they wouldn't be immune from suit with regard to the murder in your hypothetical.
Posted by: Tom | November 30, 2009 2:37 PM
James K @ 2:
Yes, the presumption of innocence basically does apply in civil court. That is, if someone sues you, they have to prove you actually did the wrong they're suing you for; you won't be presumed guilty. But the burden of proof is lower in civil court than in criminal court: by a preponderance of the evidence rather than beyond a reasonable doubt.
Posted by: Tom | November 30, 2009 2:40 PM
Tom @10: I'm not sure the judge is off the hook in D.C.'s example. Sounds to me like the judge ignored at least the 6th amendmendment (defense right to counsel, witnesses for the defense, jury trial) and probably 5th and 8th too (due process; no cruel and unusual punishment, respectively). I'd personally classify such blatant disregard as not doing the job the government paid you to do.
Posted by: eric | November 30, 2009 3:36 PM
D.C. Sessions @ 9:
To be clear, the best they could hope for is that the family of the victim couldn't sue them. They would still be liable for the criminal act of murder. In this case, however, I would think that they would still be civilly liable because executing prisoners doesn't fall within their roles.
The immunity is meant for one purpose... to prevent judges and prosecutors from being sued for doing a lousy job.
Posted by: Tom | November 30, 2009 3:46 PM
I don't like the result either, but here's the problem. Once you say that judges and prosecutors are only immune from civil suits some of the time, you have effectively said that they are never immune. Let's take bribes as an example. Judges and prosecutors should never take bribes - we all agree on that. But if you let people sue judges who have allegedly taken bribes then they may face suits from any disgruntled plaintiff who can write a plea claiming that the judge's decision was so bad that s/he must have been bribed. Or that the judge's sister's kid goes to a school that received funding from the other party, which is kinda like a bribe. Or that the judge wants to keep on good terms with the prosecutor, which is like a bribe. And the consequence of that is that people will use lawsuits to threaten the independence of judges, because the worst that can happen is that they lose a civil case, which is no big deal.
Posted by: Joe in Australia | December 1, 2009 11:01 PM
This is why prosecutorial immunity is something that we, as a society, need to give up. We need to admit that no matter what job you're doing or why you're doing or who you're doing it for you are responsible for your actions and the effects they have on others. We'd have a hell of a lot less police abuse if a cop that wrongly hit a guy could be sued for assault. Same for judges. Would the system work less efficiently? Sure, but show me that the current system is producing good outcomes and we can talk about efficiency. It's time EVERYONE was held responsible for their actions from the most exalted citizen tot eh lowliest judge on teh bench.
Posted by: Ryan | December 2, 2009 12:14 AM
This is going on in my (current) home town. My kids know some of the children caught up in this. One example: a Latino girl who got in a fight (at age 13) with a white girl -- white girl no jail or probation, Latina 5 years probation and, before each probation hearing, she was tossed in the juvenile correction facility for two or three nights (they were worried she would skip the hearing). All so that the two judges could reap a couple million each in kickbacks. Their incarceration percentages were double the state average. Which makes this, of course, a case of major corruption.
My question would be, though, is this an appropriate application of juducial immunity? I am trained in first aid, CPR and AED. When I, in a professional situation (I am a National Park Ranger (Interpretation)) respond to an injury, I know what my legal limits are. I cannot, say, perform a tracheotomy or provide medicine. If I exceed what I am trained to do, if I cross the line, exceed my training, my employer (the National Park Service), will, in the case of a lawsuit, basically say, "Better get yourself a good lawyer, kid." If I do what I am trained and licensed to do, I am in the clear. This is why paramedics and police officers (individually or through their union) take out insurance policies -- to cover their asses if they cross the line of training (or if it is percieved that they cross that line).
For judges to do what these two did, to (literally) destroy the lives of hundreds of children, deny them their civil rights as American citizens or residents, deny them their human rights, is not, by any stretch of the imagination, what they were trained to do as lawyers or judges. They exceeded their training, they shredded the contract (real or implicit) between themselves, the county and the taxpayers, and should be held civilly liable. Obviously, if a judge is acting within the law, within his or her training, within the judicial mandate, some protection is warranted. If they step over the line into criminal activity, the protection of their judicial position should be gone.
They will get jail time. The FBI's corruption case against them is ironclad. Their professional lives are over (though maybe they could get jobs on conservative talk radio (they like them some ex-cons)). Their families financial security is shot.
But what about the kids? Their convictions in juvenile court have been vacated, but how are the recompensed for the (often multiple) trips to the juvenile detention facility? the missed school? the kids (and my daughter knows at least one) who were denied admission to their college of choice because of a juvenile offense (which may never have happened)?
Posted by: (((Billy))) The Atheist | December 3, 2009 3:58 PM