Dumb Legal Philosophy Arguments #3
Issue
The third in my series of posts about extremely awful arguments in legal philosophy and law.
Aside: you may think it unkind of me to run a series of posts only for dumb legal philosophy arguments. I'm giving legal theorists a bad name! What about all the smart legal philosophy arguments out there? Well, there are some, but they are not much fun to ridicule, are they?
Anyway, these dumb arguments are really asserted by legal thinkers, including, e.g., judges who are defending extremely unjust legal outcomes. This then results in the government doing horrible things. So, the dumb arguments are fair game.
But let's pick a different issue from the last two posts. Here is an issue: Should it be possible to sue a prosecutor for wrongfully prosecuting you, and to collect damages from that prosecutor?
Background: The Status Quo
In the U.S. legal status quo, it is not possible to do that. Mind you, it's not just that a prosecutor is protected for honest mistakes. No, you cannot recover damages from the prosecutor no matter what. If a prosecutor sends an innocent man to prison for 20 years, even if the prosecutor knew the defendant was innocent, even if the prosecutor violated all sorts of legal rules in the course of the prosecution, even if he publicly announces at the end that he did it all just for the joy of watching the innocent suffer -- still, the prosecutor will be absolutely protected, by American judges, from any liability whatsoever. If his victim files a lawsuit, the judge will summarily dismiss the suit, regardless of the evidence, and a jury will never be allowed to hear the case. Stuff like that has actually happened (except for the part about the prosecutor publicly confessing his evil; prosecutors virtually never admit fault, no matter how bad their behavior).
For one amazing case, see: https://www.innocenceproject.org/cases/michael-morton/. (Note: though the prosecutor in that case ultimately served 5 days in jail, it was not for his actual crime against the defendant. It was for "contempt of court", for failing to obey a judge's directions. Had the prosecutor been prosecuted for his actual crime, kidnapping, the prosecutor would instead have served 15-20 years.)
If you are a normal person with a sense of justice, you probably think this is outrageous. However, you might think that perhaps judges are just following the written law, and that the fault lies with the legislature. You might then be surprised to read the following from the United States Code, Title 42, section 1983:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress …
Legalese to English translation: if someone uses the law to violate your Constitutional rights, you can sue them.
The problem is, the U.S. Supreme Court has held -- in an unanimous opinion -- that the phrase "every person" in the above statute does not include prosecutors or judges. I'm not making this up: read Imbler v. Pachtman (1976).
Three Amazingly Convincing Arguments
What amazingly powerful arguments have convinced judges that judges and prosecutors should be immune from lawsuits for abusing their powers? You can read three of these arguments in Justice Lewis Powell's opinion in Imbler v. Pachtman (423-9). My summary:
If prosecutors were open to lawsuits, then fear of lawsuits might change how they perform their duties and interfere with their "fearless" pursuit of justice. (He repeats "fearless" several times.)
Also, responding to lawsuits would take up too much of their time.
Also, honest prosecutors might sometimes be held liable for understandable mistakes.
These are really the main reasons given by Powell, on behalf of the Supreme Court. There aren't any other, much more sophisticated arguments in the wings. (Go ahead and look it up!)
Amazingly Convincing, or Mind-Bogglingly Awful?
You may have sensed by now that I did not find those arguments completely compelling. Unless you're either a judge, a prosecutor, or a totalitarian, you probably didn't find them at all convincing either. Nevertheless, in case there are some budding totalitarians reading this, I guess I'll explain some of the problems.
Perhaps it's easiest to see the ridiculousness of Powell's reasoning if we take an analogy. Suppose a physician, Dr. Nick, tells us that physicians should enjoy absolute immunity from liability for medical malpractice: you shouldn't be able to sue your doctor for anything he does as your doctor, no matter what -- no matter how much he may have harmed you, no matter how negligent or even intentional the harm may have been, not even if the doctor deliberately performed illegal procedures on you against your will purely out of malice.
When asked what reasons would possibly justify this extreme position, the doctor responds:
If doctors are open to lawsuits, then fear of lawsuits might change how they perform their doctorly duties and interfere with their fearless pursuit of patients' health.
Also, responding to lawsuits could take up too much of their time.
Also, honest doctors might sometimes be held liable for understandable mistakes.
I think the above claims about doctors are about as plausible as the corresponding claims about prosecutors. But of course, none of these are remotely sufficient to defend physician immunity.
#1 fails because physicians cannot be assumed to always be diligently and competently pursuing nothing but patient health. Sometimes, they are negligent or incompetent; occasionally, they might even intentionally harm patients (though this is much rarer than for prosecutors). That's why there would be an issue of lawsuits in the first place.
Now, the main thing that gets you sued is committing medical malpractice. So indeed, the threat of lawsuits prevents doctors from fearlessly engaging in medical malpractice. But that's exactly what we want. Doctors should be afraid to commit malpractice.
Granted, sometimes there are unjustified suits. These can be costly in both time and money. (Indeed, medical malpractice lawsuits can be incredibly expensive.) And sometimes, the legal system will incorrectly find for a plaintiff when the physician actually did nothing wrong.
But even after taking those risks (which apply to all lawsuits) into account, no one concludes that courts should automatically dismiss all malpractice cases. Surely the best remedy for those problems is not a blanket rejection of all lawsuits, whether well-grounded or groundless, against doctors. Obviously, that would not be in the interests of patients or society; obviously, medical malpractice would balloon. The main beneficiaries of such a "physician immunity" rule would be the worst doctors.
All of this applies, pretty much exactly, to Powell's arguments for prosecutorial immunity. We cannot assume that prosecutors are always diligently and competently pursuing nothing but justice, especially if there are no penalties for pursuing injustice. Sometimes, they will act negligently, incompetently, or even maliciously.
The main thing that would subject them to lawsuits would be actual misconduct. So liability to lawsuits would mainly interfere with the fearless exercise of prosecutorial misconduct. But that is exactly what we should want: they should be afraid of abusing their powers.
Now, just as with all lawsuits, if lawsuits against prosecutors were allowed, the plaintiff would have to prove culpability. You could not sue a prosecutor for an honest mistake. You would have to prove negligence or intentional wrongdoing. Notice that the courts consider this sufficient protection for all other people against being unfairly held liable for understandable errors. (What does it say about the courts that they don't trust themselves to fairly adjudicate claims against their own employees?)
Granted, sometimes the courts would make mistakes, and lawsuits could be costly and time-consuming. But in no other case do we say the solution to that is to dismiss all suits against anyone in a given profession. If a doctor argued for physician immunity on such grounds, any judge would laugh him out of court.
The main effect of the absolute immunity doctrine is to promote abuse of power. Its main beneficiaries are the worst judges and prosecutors, those who commit reckless or intentional injustices. This is so incredibly obvious that it is hard to draw any conclusion but that Lewis Powell, along with all the other judges on the Supreme Court, just didn't care about abuse of power.
Powell actually says that it's okay because prosecutors could still be criminally prosecuted, even though they can't be held civilly liable for abuses. He does not explain why this possibility does not interfere with "fearless prosecution" in the same way that lawsuits allegedly would. Of course, the answer is that it does not interfere with fearless prosecution because it virtually never happens, no matter how blatant and malicious a prosecutor's crimes may be. The reason for this is also obvious: prosecutors do not turn on other prosecutors.
What if Dr. Nick expanded his argument for physician immunity by saying that there is no need to allow lawsuits against doctors, because it is theoretically possible for a doctor to be criminally prosecuted if his malpractice is bad enough? Better yet, we could just have a system in which doctors police each other. What if Dr. Nick said this even while aware that it was virtually unheard of for a doctor to accuse another doctor of malpractice, even in the most blatant and horrible of cases? No judge would take Dr. Nick seriously for a second.
Justice, at Last
One of the problems with the justice system, which explains all the Dumb Legal Philosophy arguments, is that too many people have forgotten the point of the system: Justice.
When a court entertains a case, they have one central duty: to do justice to the individuals in that case. That's it. Their central duty isn't to protect the powerful, to save money for the government, or to speculate implausibly about social policy goals. Their task is to do justice to those specific people, in that specific case.
When the Supreme Court heard the case of Imbler v. Pachtman, they disregarded the question of justice in that case. They asked what was best for the system. They should have asked: "Did the defendant in fact inflict on the plaintiff a harm deserving of compensation?"
The main argument for prosecutorial liability is simple: it's a demand of justice. If someone wrongfully harms you, either intentionally or through serious negligence, it is just for that person to compensate you. That is true whether the person works for the state or not.
Now, I'm not a deontological absolutist. I think there could be some cases in which a demand of justice is outweighed. But that should only be in very rare cases; in the normal case, we should follow justice. We should not be disregarding its demands whenever the interests of the powerful are threatened and we can think of some vague speculation about how doing justice might lead to negative consequences for society.
Lady justice is blindfolded because justice does not care who you are, what group you belong to, or whether you be aligned with the meek or the powerful. It does not allow special pleading because you happen to be well-connected or work for the organization making the judgments. This is really one of the most basic and self-evident principles about justice. The fact that the Imbler decision was 8-0 suggests that the U.S. Supreme Court does not understand the first thing about justice.