DENVER — In Colorado, prosecutors can face criminal ramifications if their actions while working on a case warrant such a charge — but they cannot be sued in civil court for damages caused to a defendant.
The concept is called prosecutorial immunity, something the district attorney for the First Judicial District, Alexis King, explained to Denver7.
▶️ WATCH: Denver7's Colette Bordelon dives into the impact of immunity in courtrooms
The Colorado Attorney Regulation Counsel addresses ethics concerns as an independent body that can review attorney conduct and licensure.
"Not only do I believe the checks and balances are there, I believe that prosecutors as a portion of attorneys in this state are devoted to the rule of law, and believe in attorney regulation as part of our practice," King said. "I take it very seriously that we're reporting anything that is questionable to Attorney Regulation Counsel, and certainly my staff knows that as well.”
King believes prosecutorial immunity allows the profession to work with "neither fear nor favor."
"The threat of a lawsuit deters justice," said King. "I've worked my whole life in public service and the money that I've put away for a college fund, or the house that my husband and I have worked to pay for, should that be on the line when I decide whether or not a person who's raped a child should be free? Absolutely not.”
She has read the draft of a bill that has not yet been introduced at the Colorado State Capitol, but is already making waves within district attorneys offices throughout the state.
Denver7 obtained a copy of the draft version of this bill, dated March 31, which states that "a person who, under color of any law, subjects, or causes to be subjected, another person to the deprivation of any rights, privileges, or immunities secured by the United States constitution is liable to the injured party for legal or equitable relief."
King, along with other district attorneys, interpret that legal language to mean that it would be possible to sue anyone working in government when an individual's rights are violated, without any kind of exception for prosecutors.
She told Denver7 she would oppose that kind of a change in Colorado law, an opinion she shares with the District Attorney for the 20th Judicial District, Michael Dougherty, who is a Democratic candidate in the race to become the next Attorney General of Colorado.
"Inside the courthouse right now, there are prosecutors deciding whether to charge someone with a crime or not. Make a plea offer, or not go to trial. Or offer a disposition or even dismiss a case. Those decisions always have to be based on justice and never based on the threat of civil liability," Dougherty said. "You want to make sure prosecutors are focused on doing the right thing for the right reasons. I think we'd all agree that we should never have a two-tiered justice system where the wealthy and the well connected are treated differently than others.”
Dougherty believes prosecutorial immunity serves as a safeguard in the justice system, and does not believe it should be eliminated.
“I don’t think anyone should have absolute immunity for their acts. Doctors, lawyers, judges, you name it — especially if someone's engaged in intentional misconduct. If there's intentional misconduct, people should be held accountable for violating the law," said Dougherty. "I do think when prosecutors have committed misconduct and done so intentionally and knowingly, there are sanctions in place. We've seen that. We've seen two district attorneys, elected DAs, who have been disbarred in the last five years.”
According to Dougherty, prosecutorial immunity provides a protection from civil litigation being threatened against prosecutors with the hope of securing a certain outcome.
"I want to make sure we have a thoughtful approach to this and that we continue to build better justice system. And I think there is room for improvement here, but I think it should be a thoughtful, objective approach, and not driven by one particular angle or political ambition," said Dougherty.
One of the other candidates running for Attorney General in Colorado is David Seligman, the Director of Towards Justice. While Seligman has not worked as a prosecutor or defense attorney, he has engaged in advocacy and civil litigation throughout his career.
Seligman said prosecutorial immunity should be eliminated in Colorado.
"I want to be very clear about this. The vast majority of prosecutors are outstanding public servants who are doing everything they can to protect the rule of law, to advance a fair and just criminal legal system," said Seligman. "But there are, of course, cases — outlier cases — involving misconduct that destroys people's lives, right?”
In Seligman's opinion, doing away with such immunity would demonstrate that the criminal justice system acknowledges no one is above the law.
"Colorado, a few years ago, we got rid of qualified immunity for law enforcement. The sky didn't fall," Seligman said. "Law enforcement is engaged in split-second decisions all the time, right? That could destroy someone's lives. Prosecutors are making their decisions over the course of months at their desks, right? It seems to me that, you know, there's even less of a justification for immunity in these kinds of conduct than there is in conduct involving police officers and other law enforcement.”
Denver7 reached out to the other candidates in Colorado's race for attorney general.
Republican candidate Michael Allen reviewed the draft of the bill, and said it "would include prosecutors, judges, and defense attorneys/public defenders. This effort is reckless and misguided and will only hurt our efforts at enhancing public safety throughout Colorado."
Denver7 also sent the Democratic candidates a question to be answered: "If you believe prosecutors should face bar discipline like every other lawyer, would it be more effective to eliminate their absolute immunity so they could actually be sued? Would the threat of a lawsuit deter misconduct more than a bar complaint?"
Secretary of State Jena Griswold said she "does not believe prosecutors should have absolute immunity and would be supportive of reforms.”
Fellow Democratic candidate Hetal Doshi provided Denver7 with the following statement in response to the question:
"Coloradans deserve accountability from public servants. Prosecutors who engage in knowing and intentional misconduct betray their oath and should not be protected from consequences. They undermine every prosecutor who shows up every day to do the right thing and seek justice for our communities and victims. I’m open to reforms to continue to get this right. The details will matter. The powerful and well-resourced already benefit from a justice system that too often fails to hold them to account. Any reform should ensure we’re not further empowering the most powerful defendants – whether corporations or individuals – to go after public servants trying to hold them accountable.
Our communities also benefit, and outcomes improve, when prosecutors reflect the communities they serve. As a first-generation American and the daughter of immigrants, I know firsthand the importance of lawyers with varied personal and economic backgrounds answering the call to public service. That conversation deserves to be part of this one."
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