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Accountable Prosecutor Project Releases National Report on State Absolute Immunity Law

In 2021, Wake Forest Law launched its Accountable Prosecutor Project, a research arm of the Foundation for Prosecutorial Accountability. The Project’s purpose is to research the current landscape of prosecutor accountability mechanisms as well as ways to improve prosecutor transparency and connection with communities. Since then, 13 research assistants and 4 attorney volunteers have worked with Project Director Eileen Prescott to assemble the Accountable Prosecutor Project’s first major report on absolute immunity law.

This report is a survey of the case law in each state’s courts (not federal courts) regarding lawsuits against prosecutors. In most states, prosecutors are protected by “absolute immunity,” which is even more protective than the qualified immunity that protects law enforcement officers. Typically, absolute immunity means that people cannot sue prosecutors even for malicious misconduct, as long as the prosecutor’s action was related to their job. But there are always exceptions: legislators and courts in each state must decide what behavior is outside of a prosecutor’s role and if there are any circumstances where the immunity should be abridged. This report compiles the unique approach of each state in one place so that academics and practitioners can analyze them in the aggregate.

Key takeaways from this national report on state absolute immunity law include:

  • Several states do not apply absolute immunity to prosecutors, relying on sovereign immunity or qualified immunity when prosecutors are sued.
  • Most states act in the shadow of federal law on the matter, reacting to federal Supreme Court cases that carve out exceptions for non-judicial prosecutor duties such as press conferences or on-scene investigation.
  • The question of absolute immunity for prosecutors has never reached the highest court of 11 states, and 62% of states had five or fewer relevant cases in their history.

The full report is available here.

Guest Writer: Professor Meghan Boone on the Supreme Court decision to overturn Roe v. Wade

Wake Forest Law Associate Professor, and leading expert in constitutional law and reproductive rights, shares her expert opinion about the overturning of Roe v. Wade in this guest-writer piece.

Note: The opinions expressed in this piece are not representative of the opinions of Wake Forest School of Law or Wake Forest University.

Continue reading »

Faculty Highlight: Sarah Morath

Professor Sarah Morath is an expert on legal writing pedagogy who also teaches and publishes on a wide range of topics related to environmental law, food law and policy, agriculture, and natural resources law, among other subjects. Her scholarly contributions to the field of legal writing are extensive. Her recently published book, Our Plastic Problem and How to Solve It, was created from her expertise in both writing and environmental law. Continue reading »

Accountability in action: Wake Forest Law’s newly launched Accountable Prosecutor Project aims to better understand the role of prosecutors and their accountability to communities

Since 1989, the National Registry of Exonerations has tracked more than 2,800 exonerations in the United States — 129 of them recorded just last year. Together, these cases have resulted in individuals collectively losing more than 25,000 years of their lives to wrongful imprisonment.

In a legal system designed, when functioning as it should, to bring justice to victims and hold those who commit crimes accountable for their actions, how do these kinds of mistakes occur, and what might be done to prevent them?

This is at the heart of the Accountable Prosecutor Project at Wake Forest Law. The newly established research and public information project is aimed at better understanding how prosecutors do their jobs, what factors influence prosecutorial conduct, and the systems that can help promote prosecutorial accountability.

“There’s a need in research, in policy, and in practice for more information about how prosecutors are and can be accountable for what they do,” said Project Director Eileen Prescott. “This project is oriented toward looking at multiple aspects of what it means for prosecutors to be accountable — not only for misconduct, but to themselves and their communities, too.”

Before joining Wake Forest Law to manage the new research effort, Prescott worked as a law clerk in Chicago’s Cook County State’s Attorney Office and as an Assistant District Attorney in Philadelphia, both among the largest prosecutor’s offices in the U.S. Now, she coordinates the efforts of the law school’s deep bench of faculty with expertise in criminal law who are contributing to the project’s efforts.

The group includes University Vice Provost and Wake Forest Law Professor Kami Chavis, who is also the founding director of the law school’s Criminal Justice Program and a former federal prosecutor; Professor Ron Wright, a leading criminal justice scholar who, before entering academia, was a trial attorney with the U.S. Department of Justice; Clinical Professor Mark Rabil, who launched and has directed the law school’s Innocence and Justice Clinic since 2009 and was formerly an assistant capital defender in North Carolina; Assistant Professor Alyse Bertenthal, who previously worked as an attorney for the ACLU Criminal Law Reform Project and whose interdisciplinary research looks at the relationship of law, culture, and the environment; and Assistant Professor Esther Hong, whose scholarship focuses on the intersection of criminal and juvenile law, and who formerly represented indigent youth and adults in juvenile delinquency and criminal appeals.

Together, their aim is to conduct new research that will provide greater insight into the prosecutorial role — research that the group hopes individual prosecutors, their offices, and others working in the criminal legal system will find useful.

“The need for greater research in this area is clear, and we want the project to result in helpful information that prosecutors can use to inform policies that deepen community trust,” said Prescott.

Understanding the role of prosecutors

The role of a prosecutor is essential to the legal system. Their jobs are complex, encompassing a wide range of duties and decision-making in pursuing the fair administration of justice.

Among other things, they have the authority to decide whether to bring charges in a case and what those should be, assess evidence and determine if any of it could clear a defendant, negotiate plea deals, help select members of a jury, and try cases.

“Prosecutors have an incredibly important role in our society, and we know that this role carries with it vast discretion,” said Professor Kami Chavis, who was involved in a wide range of criminal prosecutions as a former Assistant U.S. Attorney for the District of Columbia. “While there is often this focus on policing because it is the entry point into the criminal justice system, a prosecutor’s office and their policies can be really good barometers of what’s happening in the criminal justice system, too.”

Chavis says she sees the project as an opportunity to continue to build upon the work of Wake Forest Law’s Criminal Justice Program, which for the past seven years has sponsored symposia and speakers on issues related to criminal justice.

As part of the Criminal Justice Program, Chavis and Wright, along with Wake Forest Law Professor Gregory Parks, developed the Jury Sunshine Project, which examined felony jury trial selection across North Carolina. Chavis says she is interested in exploring as a part of the new project how prosecutors across a broader swath of states use peremptory challenges to strike potential jurors.

By studying behavior like peremptory strikes or charging decisions, the project could build on these previous efforts and provide further information that helps prosecutors be more accountable to their communities, as well as suggest approaches for prosecutors to maintain community trust.

The project is also an avenue to examine how prosecutors view their own roles within the criminal legal system, and how that can be impacted by the secondary trauma many experience throughout their careers, according to Professor Mark Rabil. Such trauma, if ignored, can lead to unintended burnout, stress, and poor decision-making, he says.

“Many young attorneys who come out of law school have this deep drive to be compassionate and to help people,” said Rabil. “We need to better understand and foster ways to support prosecutors in being able to maintain the compassion that was their basis for entering the job. If we can figure out ways to recognize that there is trauma, then I think we can help improve decision-making.”

Through his work with the project, he hopes to increase understanding of how systems and situations impact prosecutorial functions, and the factors that might influence misconduct.

“One of the goals is to create awareness in future lawyers that the system, although it largely works accurately, has a lot of room for improvement,” said Rabil.

Exploring community accountability

When it comes to defining accountability, Professor Ron Wright sees it as two-fold: an accountable prosecutor is one who both stays within the bounds of the law and is responsive to the priorities of their communities.

“We want to look at all the various ways that prosecutors do this, most of the time successfully,” said Wright, whose research under
the project will explore the ways in which prosecutor offices share data and information with their communities, as well as how they manage and communicate priorities within their own offices.

Though prosecutors are public officials, often their decisions are made out of public view, making proactive transparency essential. To that end, Wright is working with student research assistants to begin examining how some of the country’s largest prosecutor’s offices publicly disclose information and data about their activities.

“Our students expand the reach of this work,” said Wright. “It means we can offer more than just a case study. We can survey the
landscape and provide information about how common or uncommon a practice is.”

Teala Volkamer (JD ’23) has worked with Wright on the project, as well as on another survey of absolute immunity laws across various

“It helps bring that real-world component in,” said Volkamer, of the experience conducting research outside of the classroom. “Being
able to work on something relevant and tangible, and where you can see the impact it can have on people’s lives, is a good reminder of why I’m studying law and what I want to do as a lawyer.”

Informing the profession

During what he describes as a “change moment for criminal law,” Wright believes the project can offer grounded insight into the prosecutorial function.

“Success looks like building a body of original research that tells us things about prosecutors that we never knew before — and confirmation from people in the field that they find it relevant in some way,” he says.

It’s a sentiment echoed by Professor Alyse Bertenthal, whose research with the project will examine how state and local level actors prosecute environmental crimes. With support from student research assistants, she will collect interview and numerical data that will help inform discussions about the criminal enforcement of environmental laws, as well as the potential impacts of that enforcement on environmental justice.

“We don’t want to propose solutions without having a better understanding of what’s going on,” said Bertenthal. “We need to start by collecting data, so that if and when solutions are offered, they are based on something that has been deeply researched and analyzed.”

As Professor Esther Hong puts it: “We want to get it right.” At a time when discussions about prosecutorial power are prevalent, one of
the project’s priorities is to ensure that the empirical data and sources it is reviewing are robust.

“Ultimately, we want to understand the ways that various actors can have a role in creating a more just criminal legal system,” said Hong.

Continuing the efforts begun over the last year, student research assistants are hard at work this semester collaborating with faculty on the project, with the goal of publishing initial findings beginning in the spring.

This story originally appeared in the 2021 issue of the Wake Forest Jurist.

Professor Sidney Shapiro receives ABA Administrative Law Section Award for Scholarship in Administrative Law for his latest book, Administrative Competence

Wake Forest Law Professor Sidney Shapiro has been awarded the 2020 Annual Scholarship Award from the American Bar Association’s Section of Administrative Law and Regulatory Practice in recognition of his most recent book, Administrative Competence: Reimagining Administrative Law. He accepted the award, which recognizes the best work published in the field of administrative law in 2020, alongside co-author Elizabeth Fisher, professor of environmental law at Corpus Christi College, University of Oxford, in a virtual ceremony on Nov. 18 as part of the 2021 Administrative Law Conference.

In the book, published in 2020 by Cambridge University Press, Professors Shapiro and Fisher reimagine administrative law as the law of public administration by making its competence the focus of administrative law. The two discuss why understanding both the capacity and authority of expert public administration is essential to ensuring a legitimate and accountable administrative state.

“Thanks to Fisher and Shapiro’s thoughtful analysis and research in Administrative Competence, the administrative law community will undoubtedly begin wrestling anew with how to develop and deploy the intellectual and jurisprudential foundation needed to make good governance possible,” said Jack Beermann, member of the Annual Scholarship Award committee and professor at Boston University School of Law, when presenting the award.

In accepting the award, Professor Shapiro noted that historically, administrative law was regarded as the law of public administration — meaning that it simultaneously ensured agencies had the capacity to carry out their statutory mission and that when they did so, they had the legal authority to act — but was redefined in the 1960s to primarily focus on the latter, constraining public administration.

“Our book asks lawyers and law teachers to return to that larger conversation that existed before the 1960s and reimagine administrative law to once again be the law of public administration,” said Professor Shapiro. “Those statutes are a democratic commitment that law should not ignore.”

In addition to Professors Shapiro and Fisher, the committee also honored Stanford Law School Professor Anne Joseph O’Connell with the award for her article Actings, which examines open questions about temporary, “acting” leaders in federal agencies. Both the book and article were selected from a field of more than two dozen on the committee’s initial review list.

“At a time when legal scholarship has been widely and roundly criticized in some quarters for being too esoteric and removed from the work of courts, agencies, and lawyers, your works both demonstrate quite clearly how the very best legal scholarship can have immediate and important implications for contemporary law and policy,” said Ronald Krotoszynski, chair of the Annual Scholarship Award committee, in an email to the award winners.

Past recipients of the award include Stephen Breyer, William Eskridge Jr., Elena Kagan, Liz Magill, Nina Mendelson, Thomas Merrill, Peter Strauss, and Cass Sunstein, among others.

Wake Forest Law held a virtual celebration and discussion of the book on November 2, which included remarks from Professors Shapiro and Fisher, as well as Cary Conglianese, professor of law and political science at the University of Pennsylvania, and Wendy Wagner, professor at the University of Texas School of Law.

“It’s a pretty rare book that makes an ambitious argument like this, that basically says an entire field has been missing the forest from the trees, and not really paying attention to what the heart of the subject is about. It’s an even rarer book that actually succeeds in changing the way people should think,” said Professor Wagner. “I don’t think a reader can pick this book up, read it cover to cover and put it down, and think about administrative law the same way as a result.”

In his remarks, Professor Conglianese highlighted a passage of the book that spotlights successes of public administration, like predicting the weather, running federal insurance programs, and ensuring safety standards in aviation and the nation’s food supply.

“Throughout the years, American civil servants have proven to be competent, loyal, and faithful implementers of the country’s laws, regulations, and customs,” he quoted from the book.

While mistakes in public administration are inevitable and make perfection unattainable, Professor Shapiro told discussion attendees, there is room for improvement.

“A 10 or 15 percent increase in the performance of government through thoughtful ideas in public administration and administrative law would only make the country better if you believe in what the government does,” said Professor Shapiro.

Watch the full discussion below:

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