Should It Be *Legal* To Frame Someone For A Crime He Did Not Commit?

Former Alabama governors agree: prosecutors' 'absolute immunity' should end absolutely.

This week, two former Alabama governors, Democrat Don Siegelman and Republican Robert Bentley, published a joint op-ed in the Washington Post     lamenting that they did not commute the sentences of the majority of people on death row while they were in office — and in fact Siegelman is almost certain he executed Freddie Wright when he was actually innocent — because of what they now know about prosecutorial misconduct and other issues.

One of those issues is prosecutors' "absolute immunity" — meaning they are pretty much free to frame people for crimes they didn't commit without having to worry about being held personally liable for doing so.

The governors:

Since 1976, when the Supreme Court granted prosecutors immunity from civil liability, it has been common for prosecutors to get close to 99 percent of the indictments they seek from grand juries. One reason for this is that grand juries are secret proceedings, with no lawyers present and no judge to oversee what prosecutors are doing. In this stealth setting, prosecutors have free rein to present false testimony or false evidence, or to withhold exculpatory evidence to get the outcome they want.

Before 1976, the U.S. incarceration figure hovered around 200,000 people. After 1976, the number skyrocketed to more than 1.6 million. With the legal cover of the 1976 decision, President Barack Obama’s solicitor general argued to the Supreme Courtin January 2010 that “U.S. citizens do not have a constitutional right not to be framed . ” Ending unjust convictions will involve rethinking prosecutorial immunity.

US citizens should absolutely have the right to not be framed and it should be very illegal to frame anyone, especially for employees of the state.

 Title 42, Section 1983 of the U.S. Code , a provision of the Civil Rights Act of 1871 (also known as the Ku Klux Klan Act) read that "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."

More succinctly, this was supposedto mean that one is allowed to sue state employees or anyone else acting under the color of law for depriving them of their constitutional rights. However, as you might imagine, state employees weren't so terribly fond of that statute, particularly during the 1950s and '60s Civil Rights Movement, a time when many of them regularly enjoyed using the "color of law" to deprive people of their constitutional rights. First came qualified immunity for cops and absolute immunity for judges — the result of the Supreme Court's 1967 ruling in  Pierson v. Ray,   which more or less found that there was nothing wrong with racist Mississippi cops arresting Episcopal priests for no reason and racist judges sentencing them to four months in prison for no reason, because having to consider people's civil rights would make them unhappy.

No, really, the argument was literally that "[a] policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he had probable cause, and being mulcted in damages if he does."

Then, in March of 1976, came absolute immunity for prosecutors. In Imbler v. Pachtman , the Supreme Court found that Paul Imbler, a man who had been wrongly convicted of murder, could not sue California Deputy District Attorney Richard Pachtman for withholding exculpatory evidence and knowingly using false testimony in court.

In finding in favor of Pachtman, the justices quoted Learned Hand, writing, "It has been thought better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation."

In case you are wondering what kind of effect that may have had, incarcerations rose by 13 percent that year, from 250,042 to 283,268. That, at the time, was a record. Now there are nearly two million (and we're actually on a decline).

In 1996, section 1983 of the US Code was amended to add "except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable," which made everything pretty official.

Researchers have found that prosecutorial misconduct is a factor in roughly 40 percent of all wrongful convictions . In 2022, 261 US citizens were exonerated after having served time in prison for crimes they did not commit. In 172 of those cases, exculpatory evidence was withheld by cops or prosecutors. In 16 of those cases the prosecutors lied, and in six of them the prosecutors knowingly permitted perjury. And in 0 of those cases was anyone allowed to hold them responsible.

Some particularly gross cases, via Reason:  

Thanks to that doctrine, courts have blocked Section 1983 lawsuits even in cases alleging egregious misconduct. In the 1994 case Dory v. Ryan , for example, the U.S. Court of Appeals for the 2nd Circuit approved absolute immunity for a prosecutor who allegedly coerced a witness to lie in testimony against a man who was then convicted and imprisoned for a drug crime. The U.S. Court of Appeals for the 5th Circuit reached a similar conclusion in the 2003 case Cousin v. Small , which involved a man who spent a year on death row after the prosecutor allegedly withheld exculpatory evidence from the defense.

A year later in Bernard v. County of Suffolk , the 2nd Circuit said prosecutors could not be sued for putting government officials on trial to satisfy a political vendetta. "Racially invidious or partisan prosecutions, pursued without probable cause, are reprehensible," the court said, "but such motives do not necessarily remove conduct from the protection of absolute immunity."

This also goes the other way, by the way. If a prosecutor is your rapist's lawyer's cousin, he is free to screw up the case so that your rapist goes free, which is what happened to Priscilla Lefebure in 2016.

It's extremely common. Practically every story of wrongful conviction comes with a profoundly disturbing story of prosecutorial misconduct that would make any reasonable person want to put their fist through a wall. Adnan Syed , Richard Glossip , Crosley Green , Robert Jones , Darryl Hunt , Lamar Johnson , Julius Jones , Randall Dale Adams , Steven Avery ... I could go on, unfortunately, even if I were just naming cases they just made documentaries about.

Let's think about this for a second — prosecutors are judged pretty much exclusively by how many convictions they get. If they lose too many cases, regardless of whether the people they are prosecuting are guilty or innocent, they could lose their job and their income. They also will not get in trouble if they ignore exculpatory evidence or falsify evidence or permit perjury. They also know that if the person actually is guilty but there isn't enough evidence to convict, that they and the jury will be held responsible if the person gets out and commits another crime. There is literally no incentive whatsoever for them to ensure anyone gets a fair trial and that should scare the crap out of all of us.

The thing is, we only actually find out about this when the person they convict is actually found to be innocent. There's probably no way we could know about the cases where the person is never found to be innocent or is, in fact, guilty. Just to be clear, someone being guilty doesn't actually make prosecutorial misconduct okay.

Realistically, most Americans probably don't really give a crap about wrongful convictions, especially right now with the fervor for "tough on crime" policies and politicians. Hell, Republicans are out here right now trying to make non-murder-related crimes eligible for capital punishment, as well as allowing executions ordered by a non-unanimous jury, despite the fact that we don't even have access to the drugs required for lethal injections anymore. But where they might care is when their state or city has to spend their tax money on restitution to the wrongly convicted. If individual prosecutors and cops could be sued for framing people, that sure would cut down on a lot of wrongful convictions and save a lot of money in the long run.

Sure, it might be a little more stressful for prosecutors to have to "dread retaliation" and it may make police officers a little more "unhappy" if they have to worry about not framing people for crimes they didn't commit or, you know, killing them when they haven't done anything wrong — but that stress is necessary. They need to be worried about doing that, because look at what happens when they are not.

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