Judge Kozinski Agrees Prosecutorial Immunity Should Go, But....
So should judicial immunity and the qualified immunity of the police.
That is, although I agree fully that we should abrogate prosecutorial immunity [there is no originalist support for such a dangerous doctrine], we should also abrogate judicial immunity and the qualified immunity awarded cops. There is no reason under the sun, nor under the Framers' concept that all are equally accountable for their transgressions, that any government actor would be immune for his harmful deeds. At the time of the framing, government agents and judges could be sued [and arrested!] for violating people's constitutional or common law rights: the immunities that have grown up are manufactured from whole cloth, first by judges protecting themselves, and then protecting their prosecutorial brethren, and then by protecting their constabularial chums. Much mischief comes from telling any group up front that they can violate rights without the same accountability required of the polity, who are their masters.
In this final summary of Judge Kozinski's valuable insights about the problems with the criminal justice system of this Republic, he also recommends that judicial elections be eliminated. Considering the alternatives, I am not certain I fully agree. I have seen what is placed on the bench by political appointments, and my clients are victimized by it daily. People get to the bench in the appointments system by attending the right cocktail party at the right time in political history, not by being faithful scholars of the Constitution and by being devoted to the principles undergirding the founding of the Republic.
To be sure, there are horrid political pressures on judges who are running for election or re-election, and newly appointed ones are running from the day they take the bench, but it is not clear that we get a better quality of "justice" by the appointments system. I wrote in an earlier blog that we should do away with "endorsed by law enforcement" and such pandering campaign ads, but to strip from the polity the opportunity to select those who exercise power given by the polity [which is the definition of popular sovereignty] is fraught with doctrinal peril.
But here is Judge Kozinski's thoughtful input on these subjects, and I will share his earlier ones later:
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