For Justice, End Legal Immunity

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Much of what we read on the LRC page and elsewhere involves unjust or criminal actions by people employed by governments. Whether it be the aftermath of the infamous Duke Lacrosse Non-Rape, Non-Kidnapping, and Non-Sexual Assault Case, the Little Rascals Case, or yet another situation involving a wrongful prosecution and conviction, we are given example after example of government wrongdoing and outright criminal behavior.

In any of these stories, one or all of the following will have occurred: (1) Prosecutors hide exculpatory evidence or just lie, (2) prosecutors suborn perjured testimony, (3) police officers lie on the witness stand, and (4) judges sit back and do nothing while an innocent person is railroaded. As it is my contention that there never is an excuse for a wrongful conviction, whenever we see someone wrongfully convicted, we can be assured that the authorities either were willfully dishonest or incompetent.

What we rarely see, however, are the people who were at fault ever being charged as criminals or being on the end of lawsuits brought by the victims. Most of the times, the real victims have no recourse at all.

The reason is that governments confer immunity upon those privileged to work in the police and "justice" systems. (In some places, like California, most government workers are given astounding amounts of immunity when they break the law, even if it is not "job-related.") The U.S. Supreme Court has ruled that judges and prosecutors are absolutely immune for anything they do that is considered within the lines of their official duties.

Many years ago, a lower-level judge in New York City purchased coffee from a street vendor, but did not like it. He had the vendor arrested, put into handcuffs, and then dragged before the snarling judge in his courtroom to be lectured on the evils of bad coffee. The outraged vendor sued and won a large judgment, but SCOTUS stepped in and overturned the verdict (and the judgment, of course) and ruled that since the judge was sitting on his bench, he had the power to do whatever he pleased.

In subsequent rulings, courts have spread immunity to prosecutors and police and others in government "acting in their official duties." The reasoning of the courts and legislators (who also have written immunity into various statutes) is that the duties that these government employees are so important that they cannot work under the stress of being sued for their misconduct.

For example, Michael Nifong, the architect of the infamous Duke case, is claiming that the law protects him for whatever he did in that case; the reason he is legally vulnerable, it turns out, is that Nifong also directed the police investigation of the case, and it was as an investigator that he engaged in much of his egregious conduct. However, he has absolutely no legal vulnerability for his lying in court, his public statements, his desperate attempts to manipulate the case timelines, and his changing of the charges after the infamous December 15 hearing in which attorneys were able to get one of his star witnesses to admit that he and Nifong agreed to withhold important exculpatory evidence.

(Nifong’s vulnerability came because the North Carolina State Bar was able to file charges against him, and ultimately disbarred him for what he did as a prosecutor. Likewise, Judge W. Osmond Smith III jailed Nifong for a day for lying in court to him about the evidence. However, the real victims of Nifong’s predations could do nothing regarding what he did in his "official" prosecutorial actions.)

Likewise, the police in Durham are claiming the same immunity and the two judges, Ronald Stephens and Kenneth Titus, who gave Nifong a free hand in their courtrooms to do a number of outrageous things, are absolutely immune for their official actions. Whether or not the federal judge handling the civil case will agree with the police officers is another matter.

If one steps back and examines the reasons given for immunity, they translate to the following: judges and legislators are not willing to expose the government employees in the "justice" system to legal liability because it might "distract" them from their duties or make them legally vulnerable. This reasoning is rich, very rich, and absolutely ironic.

What they are saying is that police and those employed by the courts should not be subject to the very legal procedures that they force upon the rest of us. They are saying that they cannot trust the courts to do what is right if THEY are sued. The same people who drag us into court, who charge us with ridiculous "crimes," and who impose judgment after judgment on us, cannot possibly be expected to face the system that governs the rest of us, as it might "distract" them from their duties.

That should strike everyone as hypocritical at best and utterly dishonest at worst. If the court system is good enough for us, why is it not good enough for the people who are in charge of that system?

This reminds me of the old Soviet Union, which had "yellow-curtain" shops in which only those who were paid in "Class-D Rubles" could shop. Those were the people who were politically-connected and who either were members of the Communist Party or who had the most "prestigious" jobs. All of the other workers in the "Workers’ Paradise" were paid in regular Rubles and were not permitted to enter those stores.

The essence of modern American "justice" is precisely that of the "yellow-curtain" shops; all Americans are equal, but those employed as police officers, prosecutors, and judges are more equal than everyone else. If lawsuits for misconduct should not be imposed upon these miscreants, then why should the rest of us be left vulnerable to them? If these legal procedures are good enough for other Americans, then why are they not good enough for the government "law" employees?

It is not enough to say that lawsuits would "distract" these "public servants" from their duties (as is claimed). After all, everyone outside this "justice" system faces such lawsuits, and the courts have ruled that such suits are just fine.

No, the reasons given are not morally or even legally legitimate. They are nothing but an exercise in raw power, the power of the state.

We cannot make police, prosecutors, and judges into honest people. However, we also have to understand that the very immunity that protects these government employees also provides a powerful incentive for fundamentally dishonest people to seek these careers. What other line of work (other than being an elected politician) permits those duly employed to lie, to kill, to kidnap, and to engage in other acts of oppression and bullying with almost no consequences for such behavior?

The market system, which these same people constantly disparage and attempt to destroy via their own "justice" system, does not reward this kind of criminal behavior. As we have seen in the current economic meltdown, ultimately the lies that some of the players attempted to foist on the market were discovered, and the market participants exacted a brutal form of justice.

That does not happen in the "justice" system. Instead, when someone like Nifong actually does face some small consequences for criminal behavior, we are told that it is "extraordinary." Wow. A prosecutor lies in court, hides evidence, foists a major frame on innocent people, and we are supposed to believe that it is "extraordinary" that he loses his job.

No, we cannot make sociopaths like Michael B. Nifong honest people. However, we can take away their legal immunity and make them vulnerable to the same sanctions that the rest of us face. That would provide a small amount of justice in a system in which the participants no longer care about being just.

February 3, 2009

William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute. He also is a consultant with American Economic Services.

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