Monday, May 2, 2011

My latest article on Lew Rockwell's page: More problems with prosecutorial immunity

In my latest article on Lew Rockwell's page, I take issue with court decisions that establish absolute immunity for prosecutors. While I do understand their arguments, nonetheless, because the only accountability mechanisms for prosecutors are in the hands of fellow prosecutors and government lawyers, the situation creates perverse incentives because prosecutors know that no one will hold them to account unless the situation is so publicly bad that the other prosecutors are running for cover. (The Duke Lacrosse Case and the disbarment of prosecutor Michael Nifong is a case in point.)


Ralph said...

Interesting that all court officers are under oath, which means that they are subject to authority of God should they violate that oath.

By provision of Deuteronomy 19:15-19, if they are found guilty of falsely accusing or convicti ng the accused, they are to suffer the penalty they sought to impose.

This is not subject to "self policing", but to the conditions under which their office becomes subject to higher authorities. This brings me to an intetresting question: If you, as the accused, are asked to swear "So help me God", why can you not then turn to the bible itself and use "God" as your attorney, under provisions of Isaiah 54:17 and Isaiah 50:8, in which God is cleartly on the side of the accused, and not the accuser. This would mean that any false testimony in violation of God's protection would be subject to prosecution of the accuser. See Exodus 23:1-2. That includes "indictment by information".

Doc Ellis 124 said...


You are talking about using religious text in a secular environment. How does your proposal to use Bibles to differ from using Qurans? Both are religious texts. Believers hold that G-d inspired men to write them. And some believers seek to impose their faith-based provisions on other folks.

Doc Ellis 124

liberranter said...

One of the things that this case and others like it scream for is the revocation of authority of state agents to handle evidence in criminal cases. I know that this proposal has been made before (although I can't remember the source[s]), but surely there are qualified and disinterested third parties who can be certified (NOT by the State, of course) to handle, process, maintain chains of custody, and securely store and release to authorized parties on both sides of a case forensic evidence and/or testimony. This would go a LONG way toward eliminating opportunities for prosecutorial and judicial misconduct. Of course I'm under no illusions that the criminal, power-mad, and predatory State will ever allow such a thing to happen.

David R. Henderson said...

What a great idea! I had never thought of that.

Anonymous said...

Found this via A very good article and a much-needed topic that you cover with the whole blog.

You say the Supreme Court closes the door on citizen direct action. Could you expand on what you mean?

Also, what about a federal civil rights lawsuit (commonly called a "1983" lawsuit) in these cases of misconduct? I haven't been able to research this much myself, but I've heard that the courts keep ruling that judges have complete immunity from these lawsuits (which apparently violates the law), but other government officials don't.

I don't ask either of these questions casually. The answers are of great interest to me. Thanks so much, and I will become a follower!

William L. Anderson said...

When prosecutors are doing their "official" duties, they have absolute immunity to being sued by individuals. The only way to have them punished for misconduct is for government authorities to bring criminal charges or seek to have them disciplined or disbarred by the various state bars. (That is what happened to Michael Nifong in the Duke case.)

In other words, the only people who can discipline prosecutors are other government prosecutors and lawyers. The fox guards the henhouse.

KC Sprayberry said...

More and more, I believe a prosecutor having 'absolute' immunity when doing their job is a bad thing. This has led to far too many prosecutions based on evidence that's laughable at best. It's also led to a tyrannical mood in communities where a prosecutor has announced he/she will take a tough stance on crime. If one reads all the laws passed every year, one will soon learn a prosecutor can and will prosecute even the most innocent person. We've arrived at the point where even those who consciously obey the law break at least one or two daily without knowing it. Instead of more laws, we need far less with everything outlined clearly so there's no need to pay millions for our elected officials to create laws in order to justify their theft of American tax dollars by claiming they're doing their job.