Questions of whether prosecutors should be immune from liability for constitutional torts, and if so, whether that immunity should be qualified or absolute, have been the source of considerable controversy for the last half century. Some argue that absolute prosecutorial immunity is indispensable, a necessary tool to protect public servants who, without immunity, would be buried under a mountain of frivolous § 1983 suits. Others see absolute prosecutorial immunity as unjust because it prevents genuinely wronged individuals from rightfully collecting damages from constitutional tortfeasors. As the debate over the Supreme Court’s prosecutorial immunity jurisprudence continues, the current scope of protections afforded to prosecutors outside of the judicially created immunity regimes has received decidedly less attention. This Note will argue that states and local municipalities have created a number of protections for public officials, including prosecutors—such as indemnification legislation, private insurance, and other alternative liability mechanisms—to cover losses from torts they commit in the line of duty. These protections prevent prosecutors from shouldering the burden of personal financial liability even in instances in which they cannot don the cloak of absolute immunity. Considering the breadth of the protections that are currently afforded prosecutors coupled with the opportunity for their expansion to additional jurisdictions, the Court’s decades-old justifications for maintaining absolute prosecutorial immunity are no longer a concern. Therefore, the Court should abandon its confusing absolute prosecutorial immunity jurisprudence once and for all.
