After spending nearly 23 years on death row for a murder he did not commit, Curtis Flowers received some long-awaited good news in September: He was finally free.
In 1996, Flowers was charged with murdering four people in a furniture store in Winona, Mississippi. His decadeslong legal battle spanned six trials and ultimately led to a Supreme Court case. His story also inspired a podcast, In the Dark, that turned up exculpatory evidence, identified new suspects, and revealed that key state witnesses lied under oath to convict Flowers in exchange for leniency in their own cases.
Predominantly white juries convicted Flowers, who is Black, in four of his six trials. All four times, those convictions were thrown out for prosecutorial misconduct. The other two trials—the only two with juries consisting of more than one Black juror—ended with hung juries. In all six trials, the state of Mississippi was represented by the same person: Montgomery County District Attorney Doug Evans. Evans finally recused himself from the case after the United States Supreme Court invalidated his sixth attempt to prosecute Flowers, and on Sept. 4, Mississippi finally dropped all charges against Flowers.
Now that he is free, what recourse does Flowers have against Evans for the district attorney’s violations of his constitutional rights? None.
Prosecutors in the United States are entitled to absolute immunity from civil suits for their prosecutorial conduct. So no matter how egregiously Doug Evans abused his powers to deprive Curtis Flowers of his constitutional rights, Flowers cannot seek justice against him.
Absolute immunity for prosecutors is a step beyond qualified immunity for police officers. And like qualified immunity, it is not the product of national legislation but an invention of the Supreme Court. The court created prosecutorial immunity in the 1976 case Imbler v. Pachtman. In doing so, it framed the question before it as “whether … considerations of public policy” favor absolute prosecutorial immunity. In other words, rather than reaching its conclusion by interpreting established law or precedent, the court evaluated the merits of prosecutorial immunity as a public policy choice, and ruled in favor of the outcome it liked best.
The court rested its conclusion that absolute prosecutorial immunity is sound public policy on three principal justifications. First, without absolute immunity, prosecutors might alter their behavior for the purpose of avoiding liability, undermining public trust in the objectivity of their decision-making. Second, the day-to-day realities of prosecution make even the honest prosecutor susceptible to frequent constitutional violations; holding them accountable for these violations would prevent them from vigorously discharging their duties. Third, civil liability is unnecessary to prevent misconduct because professional recourse is a sufficient deterrent.
None of these rationales justifies the court’s decision.
The court’s reasoning on the first point is exactly backward. It feared the public would lose trust in prosecutors who avoided violating the Constitution to preserve their own self-interest. This concern focuses too heavily on the perception of self-interest and too little on the product of that self-interest: fewer constitutional violations. To counter the perception problem, the court created a rule that permits prosecutors to violate the Constitution with impunity. But given a choice between a rule that prevents constitutional violations and one that permits them, wouldn’t the former do more to earn the public’s trust?
The court’s second point is equally misplaced. Here, it described the prosecutor’s role as one subject to “serious constraints of time and even information” that make even the “honest prosecutor” prone to violating the Constitution. To hold prosecutors liable for their honest mistakes would interfere with the “vigorous and fearless performance” of their duties. But this is exactly why prosecutors should be held liable for their actions. The law should interfere when the vigorous performance of prosecutorial duties violates the Constitution. Whether that constitutional violation is committed honestly or not is irrelevant: Does Doug Evans’ deliberate misconduct make the sting of Curtis Flowers’ 23 years behind bars more painful? Yes. But would learning it was all an honest mistake alleviate Flowers’ pain? Of course not. Civil liability is necessary not only to hold prosecutors like Evans accountable for violating the Constitution intentionally, but also to force prosecutors acting in good faith to discharge their duties more carefully.
In its third point, the court missed the mark yet again. To justify its conclusion, the court offered the reassurance that civil liability is unnecessary to deter prosecutorial misconduct. Possible professional recourse, it felt sure, incentivizes prosecutors to follow the Constitution’s dictates or face losing their jobs. This theory holds no water in practice. In 2019, Doug Evans was reelected as district attorney. He still serves today.
The flawed logic in these three points expose a court providing a solution in search of a problem. To borrow a phrase Justice Harry Blackmun—one of the eight justices who signed the Imbler opinion—would use years later, the court, in creating absolute immunity, “launch[ed] a missile to kill a mouse.”
But not only is the court’s reasoning misplaced on the issues it did address—there remains a vital consideration that it failed to confront. The entire Imbler opinion is devoted to considering the consequences of its decision on prosecutors; the consequences for criminal defendants are never explored.
But these consequences are very real. When a prosecutor deprives a criminal defendant of their constitutional rights, the prosecutor inflicts a harm on the defendant. Two immediate options exist for who can bear the cost of that harm: the prosecutor or the defendant. The prosecutor might bear the cost through civil liability, or the defendant might bear the cost by suffering the harm without compensation. In the context of the Curtis Flowers case, Evans might be required to compensate Flowers for the years he deprived him of his constitutional rights, or Flowers might be forced to bear the cost himself. Given a choice between making Evans or Flowers pay for Evans’ decades of misconduct, the Imbler court chose Flowers.
Without recourse against Evans himself, can Flowers pursue compensation through other avenues? Far too little. Though most employers are liable when their employees cause harm in the course of business, in the 2011 case Connick v. Thompson the Supreme Court made it extraordinarily difficult to hold local governments, like Montgomery County, responsible when one of their prosecutors violates a defendant’s constitutional rights. That leaves Mississippi’s wrongful conviction statute as Flowers’ most likely source of compensation (an option that would not be available to other defendants who are harmed but not wrongfully convicted by prosecutorial misconduct). To win under that law, Flowers will have to prove by a preponderance of the evidence that he did not commit the crime for which he was imprisoned. Even if he does, the maximum payout is $500,000, paid at a rate of $50,000 per year. That means Flowers’ maximum compensation would be equivalent to less than $22,000 for each year he spent behind bars, and he wouldn’t receive the last payment until his 60th birthday.
As Flowers’ story demonstrates, absolute immunity can only serve to erode trust in the criminal legal system, increase the likelihood that prosecutors will commit constitutional violations, and insulate prosecutors from accountability when they do. At the same time, it leaves criminal defendants like Flowers to bear the costs of prosecutorial misconduct. Curtis Flowers is home free—but Doug Evans is, too.
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