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Absolute Immunity for Prosecutors Creates the Classic “Lemons Problem”

Public officials argue that to be able to carry out their duties, laws must protect them from lawsuits by disgruntled individuals or those harmed by wrongful actions of government agents. The U.S. Supreme Court especially has protected prosecutors, granting them absolute immunity as long as they committed wrongful acts within the scope of their legal duties.

Advocates argue that unless prosecutors receive such drastic protection, those charged and sometimes convicted – guilty or not – will bury prosecutors under a blizzard of lawsuits for misconduct. Yet, as we see with the infamous Pottawattamie County vs. McGhee, one also can argue that prosecutorial immunity also create conditions for a legal version of a “Lemons Problem,” in which prosecutors are encouraged to present false information as being true and jurors and the public can be fooled.

In 1977, police and prosecutors in Council Bluffs, Iowa, desperately wanted to solve the murder of a former police officer there. The district attorney, David Richter, faced an election the next year, and he wanted to keep his job.

Despite having good evidence that led to the trail of the potential killer, Richter and police charged two black teenagers, Terry Harrington and Curtis McGhee, who lived in neighboring Nebraska, and tried them for murder. What followed was a nightmare for the two young men, one of whom was the captain of his high school football team. Richter, his assistant, Joseph Hrvol, and the police zeroed in on the two young men, even to the point of ignoring evidence that would have taken them elsewhere.

What followed was a frame-up, and the state convinced an all-white jury in 1978 that Harrington and McGhee were guilty. The star witness for the state was a 16-year-old boy who, to be charitable, was quite unreliable:

Harrington (after being convicted and given a life sentence in prison) struck up a friendship with the prison barber, who petitioned for the police records in his case. According to defense lawyers, those records not only disclosed how police and prosecutors had coached Hughes until his story matched the facts, and how other witnesses were coerced into lying, but that the records also showed that police and prosecutors had withheld evidence that pointed to another suspect. They had identified a white man named Charles Gates, who had been seen with a shotgun near the scene of the crime. Gates, the brother-in-law of a Council Bluffs Fire Department captain, was interviewed and failed a polygraph. But prosecutors and police abandoned their interest in him in favor of Harrington, who was not even offered a polygraph.

Harrington appealed his conviction and, after serving 25 years, finally had his case heard before the Iowa Supreme Court, which overturned the verdict, the court declaring that the state’s main witness was a “liar and perjurer.” Harrington and McGhee sued the prosecutors and won at the district and appellate levels in part because Richter and Hrvol had taken an active role in the actual investigation, working alongside the Council Bluffs police.

Not surprisingly, even though the state admitted it had used perjured testimony and police and prosecutors had manufactured evidence, the prosecutors through their attorneys argued that they could not be sued for misconduct because the U.S. Supreme Court in its 1976 Imbler vs. Pachtman decision ruled that prosecutors acting within the scope of their duties enjoy absolute immunity from civil lawsuits. Attorneys for Richter and Hrvol argued to the U.S. Supreme Court in 2009 that prosecutors were protected even if they broke the law and purposely pursued false charges:

The prosecutors counter that there is "no freestanding constitutional right not to be framed." Stephen Sanders, the lawyer for the prosecutors, will tell the Supreme Court on Wednesday that there is no way to separate evidence gathered before trial from the trial itself. Even if a prosecutor files charges against a person knowing that there is no evidence of his guilt, says Sanders, "that's an absolutely immunized activity." (Emphasis mine)

Iowa authorities settled with Harrington and McGhee for large sums of money before SCOTUS could make a decision, however, leaving it to a future court to revisit prosecutorial immunity.

Moving beyond the obviously outrageous defense of immunity – the claim that people have no right not to be framed by authorities – let us look at the incentive structures that prosecutors face. In a recent Mises article, Chris Calton argues that the current justice system creates a “commons” in which the benefits of a conviction flow to individual players in the system – judges, prosecutors, and police – but the costs of incarceration are borne by the taxpayers. While one can argue that “society” gains some immeasurable benefits from conviction of violent and dangerous criminals, the real beneficiaries are officials who make a living in that system.

The Lemons Problem

In his famous “Lemons” paper in 1970, George Akerlof wrote that markets might break down if parties involved in market transactions faced information asymmetries. He used the example of used cars, noting that buyers often cannot tell the difference between a “good” used car and one that is a “lemon” and has a high likelihood of breaking down soon after the purchase.

Despite Akerlof’s claim that information asymmetries constitute a “market failure” that should be rectified by government intervention, we have seen (especially with development of the Internet) market players create a number of information mechanisms that enable buyers and sellers to make informed decisions.

Criminal trials are not market-based events, but, nonetheless, guilt and innocence depend upon all of the participants – and especially jurors – having correct information presented to them within the rules of due process. People rightfully are disturbed by wrongful convictions.

Prosecutors have huge incentives to convict, and benefits of winning convictions are likely to outweigh any potential costs. More convictions mean electoral victories (many members of Congress are former prosecutors), raises for staff attorneys, and prestige.

The main cost is the levying of legal sanctions for misconduct. However, unlike most professionals that have to weigh the potential costs of lawsuits should they fail to satisfy a customer or client, prosecutors don’t have to worry about lawsuits, and it is extremely rare for prosecutors ever to face any legal sanctions even for the most egregious of behavior.

It isn’t just Pottawattamie. The list is endless. From the infamous Duke Lacrosse Case in which prosecutor Michael Nifong broke state and federal criminal laws but only lost his law license, to the “expert witness” scandals in Mississippi in which Dr. Steven Hayne gave testimony (for the prosecution) in hundreds of criminal cases that many prosecutors knew was false, to the prosecutorial scandals in Orange County, California, we see a reoccurring pattern: prosecutors suborn perjury, lie to judges and jurors, and fabricate evidence favorable to their cases, with the very rare prosecutor ever punished for dishonest conduct.

With the odds ever in their favor, unscrupulous prosecutors are rewarded for lying and presenting false information. Like the stereotypical used car salesman that foists lemons onto hapless customers, the law incentivizes prosecutors to win at all costs, and they do so with frightening regularity.