Prosecutorial Exceptionalism, Remedial Skepticism, and the Legacy of Connick v. Thompson

The Supreme Court’s 2010 Term decision in Connick v. Thompson held that Orleans Parish, Louisiana may not be held liable under 42 U.S.C. § 1983 for its prosecutors’ violations of in their constitutional duty to disclose favorable evidence to the defense under Brady v. Maryland, based on a theory that the District Attorney’s Office failed to train those prosecutors in the substance of Brady’s requirements. The Court rejected the claim of former death row inmate John Thompson, now exonerated and by all accounts the victim of unconstitutional evidence suppression by prosecutors, that a district attorney has a duty in creating a training program to anticipate the risk of Brady violations occurring. The narrow fallout from the opinion was dramatic and important: a jury verdict reversed and fourteen-million dollar judgment overturned; an exonerated former prisoner left essentially without a remedy for the Brady violations that by all accounts wrongly landed him on death row; a rare oral dissent from the bench by Justice Ginsburg. The broader implications of the decision, however, are less clear. This chapter in a forthcoming edition of the Handbook of Section 1983 Litigation suggests that the Connick’s impact as a precedential matter in the arena of civil rights litigation will be more limited than proponents of civil liability might fear. In particular, the chapter identifies the Court’s reasoning as thoroughly grounded in an attitude of prosecutorial exceptionalism that is deeply entrenched across a range of substantive areas in the Court’s jurisprudence. This is an outlook that has hobbled any effort to involve courts in prosecutorial oversight, but that in this instance might serve to effectively cabin Connick’s applicability to future municipal suits outside the context of prosecutor action.Nevertheless, the chapter urges that Connick’s systemic fallout will be more damaging to the development and enforcement of constitutional rights than reading the case in isolation might suggest. Connick is emblematic of a broader trend in the Court’s constitutional remedies jurisprudence which I have elsewhere dubbed “remedial rationing”: The availability of constitutional claims is frequently restricted – for example, through immunity doctrine in civil litigation, or restrictions on remedies like the exclusionary rule in criminal litigation – with the promise of some alternative avenue of remediation. Frequently that proffered alternative is municipal liability. Against that backdrop, Connick’s restrictive account of the role of municipal liability for civil rights violations has the quality of a bait and switch. The opinion threatens to be all the more systemically distorting given that the restrictions the Court announces with respect to municipal liability echo the very doctrines – namely qualified and absolute immunity – against which municipal liability has been cited as a remedial hedge. The possibility that Connick foretells future potential for convergence between municipal liability and individual immunity doctrines is perhaps, from the standpoint of the viability of constitutional remedies, the darkest and most far-reaching impact of the decision.