Prosecuting the Prosecutors

with Matthew Martens

As you can see in our full conversation, my guest Matthew Martens’s argument for criminal justice reform proceeds from Christian principles. He believes that his religious convictions require him to help fix what he sees as the broken elements in our system. But it requires no special religious worldview to understand his point in this clip. Matthew argues that, when prosecutors are insulated from the threat of criminal and civil suits for intentional misconduct, they’re effectively placed above the law they’re charged with enforcing.

We could understand this as a case of misaligned incentives. If prosecutors had to face a potential civil suit from every criminal they convicted, no one would be willing to do the job. Yet the opposite extreme, in which there is no practical way for victims of intentional misconduct to hold prosecutors responsible, seems equally untenable. The issue, as I see it, is not that prosecutors around the country are flagrantly violating the rights of the accused whenever it seems convenient but that, as Matthew describes it, there is no recourse for victims when a dishonest prosecutor does cross the line.

As I’ve said repeatedly, the deterrent effects of the law enforcement are just as important as actual law enforcement. When used properly, they help prevent both major and minor violations of the law from ever occurring, which is preferable even to catching and prosecuting those who do actually break the law. Most of us don’t need a law to tell us not to rob our neighbors or physically attack those who offend us. But none of us are above the temptation to skirt a rule, take a shortcut, or gain an edge if we think we can get away with it. While I no longer consider myself a practicing Christian, I think we do well to remind ourselves that we are flawed creatures, perhaps even fallen. That belief should have us embrace measures that would stop us from giving in to temptation, even (or perhaps especially) those of us charged with enforcing those measures.

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This is a clip from the episode that went out to paying subscribers on Monday. To get access to the full episode, as well as an ad-free podcast feed, Q&As, and other exclusive content and benefits, click below.

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GLENN LOURY: Excuse me, Matt. What is misconduct in this context?

MATTHEW MARTENS: So it could be a variety of things. Most frequently it is hiding evidence of the defendant's innocence rather than handing it over to the defense. That's the most frequent type of misconduct, what the law calls a Brady Violation, based on a Supreme Court case called Brady v. Maryland.

So we see these acts of misconduct, and Christianity has an answer to that, which is that part of being accurate means speaking accurately about the wrongs of the governed, exactly what Madison was getting at. How do we restrain the government? Part of it is that we punish the governed, the governing, the governors, even when they're wrong. We don't just punish the governed. We don't believe in a world in which the government is not accountable, at least in theory. Irenaeus of Lyon writes about this in the second century as a Christian bishop. He writes in his book Against Heresies, “When the magistrate acts to the subversion of justice, then he too must perish.”

So this idea of the governors themselves being subject to accountability in their administration of justice is a central implication of accuracy. So that's how I think those pieces fit together, that we hold the government accountable to doing justice and punish the government actors when they don't. In theory, that's what we should do.

I was about to say, you're calling for reform, I gather. And I know from reading your book that we're a long way from actually realizing this ideal. Can you talk about that for a little bit? What's wrong with the way we're doing criminal justice now?

Your listeners may have heard of something called qualified immunity. So this often comes up in the context of police officers who maybe engage in an improper shooting of a suspect or something. The police have qualified immunity. And I'll just say, if you think qualified immunity is bad, I got more bad news for you. Prosecutors have absolute immunity. In a case called Imbler v. Pachtman back in I think it was the late '50s,¹ the Supreme Court said that prosecutors are absolutely immune, meaning [they] cannot be prosecuted for any violation of your civil rights committed in their role as prosecutors, even intentional violations. So to put a finer point on that, if a prosecutor intentionally suppresses evidence of your innocence, the prosecutor cannot be sued in a federal civil rights lawsuit. Absolute immunity, even if it's intentional.

That's an act of Congress?

So it's really interesting question. Section 1983 of the federal civil rights statute was passed as part of the Ku Klux Klan Act of 1877. I think it was after r right toward the end of Reconstruction. And so Section 1983 gives you the right to sue federal, state, and local government officials who violate your civil rights. The Supreme Court read into that statute—it's nowhere in the text—this immunity doctrine. And they did it with two justifications, maybe three.

One, they were like, who would take these jobs if you could get sued? I don't know, maybe people who would acknowledge and protect your civil rights? Maybe those people. Then they said, number two, don't worry, a prosecutor that intentionally suppresses evidence of your innocence could be criminally prosecuted. And honestly, I can't believe adults wrote that on a piece of paper. Because in the now coming up on 60-plus [sic] years since Imbler v. Pachtman, there's only one person, ever. One prosecutor ever has gone to jail for hiding evidence of innocence in a criminal case. One.

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This occurred in Texas. This prosecutor convicted a man named Michael Morton, who wrote a book about his experience that I read recently. The prosecutor in that case sent him to jail by hiding evidence, sent him to jail for 25 years for a murder he did not commit. And when it was finally determined through DNA evidence that he had not committed this murder, the prosecutor was prosecuted and he got five days in jail. That is the longest jail sentence that any prosecutor has ever gotten.

So the Supreme Court said, don't worry about being able to bring civil rights lawsuits, because prosecutors can be prosecuted for violating your civil rights. And I'm like, come on. Are you seriously that gullible? You seriously wrote that down in a court opinion? Their last justification was okay, okay, but they could be subject to bar complaints because it's a violation of the bar rules that govern lawyers. So lawyers administering a system of self-regulation. They're like, those folks will make sure that they ride herd on prosecutors who violate your civil rights. And again, studies have been done cataloging the number of instances in which that's happened. Almost never. And to the extent it is, the punishment is usually something like a censure. “That was bad. Don't do that again.”

Let me play devil's advocate here for a minute. The absolute immunity for prosecutors means they can't be sued as a civil matter. You say there are over 3,000 exonerations that have been identified, 60 percent of which, if I heard you right, involve some kind of misconduct. That would be quite a few civil lawsuits if they were allowed to be brought, would it not? And has the court any interest in discouraging the trial lawyer bar—no offense intended—from having a field day, going around suing prosecutors for misconduct? But is there not another side to the argument, is what I'm trying to ask.

So I guess I have a couple of responses to that. One, we're then designing a system in which there are essentially no ramifications for this. As I said, they're not going to be prosecuted. There's really no material number of bar complaints that are ever sustained, and now we've eliminated the last alternative. So we've created a class of people that is entirely immune from wrongdoing and said, you're in charge of everybody else. Unrestrained power of that sort, I think, is extremely dangerous. So that's my first response.

The second is this. To the extent what you're saying is that prosecutors are concerned that the system won't rightly sort out whether they actually engaged in misconduct, I don't have a whole lot of sympathy for people who are sending other people to jail in that system saying, I don't trust that same system to make decisions even about financial liability. If you've trusted this system enough to stake somebody else's life on it, I don't see why you're so unwilling to let that same system judge your conduct.

I'm not oblivious to the fact that every defendant who's prosecuted is upset. When I was a prosecutor, people didn't love it that I put them in jail, either. And it doesn't mean that judges shouldn't scrutinize those cases in some way at the outset to try to sort out those cases that seem to have some merit that's worth looking into as opposed to those that are frivolous on their face. But to create a world in which there's no circumstance in which you can bring the case, no matter how meritorious, no matter how intentional the wrongdoing, you're entirely blocked from the courthouse door, I think is unjust.

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1. Imbler v. Pachtman was decided in 1976. - Ed.