In general, criminal prosecutors and judges have absolute immunity from liability for acts conducted in the furtherance of their judicial system functions. Normally, if you feel that you have been harmed by the conduct of a prosecutor or judge in the judicial process, you appeal their rulings or collaterally attack their judgment in state or federal court (e.g. habeas corpus petitions in federal court). Note, however, that a prosecutor who acts in a non-judicial capacity, for example as part of a investigation of a crime, has only qualified immunity from liability just like other law enforcement officers for that conduct.
There is good reason for this immunity. Both criminal prosecutors and judges are routinely grieved for alleged ethical violations by dissatisfied litigants in complaints that are almost never sustained following an investigation (usually because the complaints are "appellate in nature"), and only 1-2% of so of habeas corpus petitions (and prisoner's petitions generally) are found to have merit.
On the other hand, there are instances in which serious misconduct by prosecutors and judges, in blatant disregard for their legal duties, results in serious harm to litigants that is not easily remedied through appeals of a conviction.
Misconduct by Prosecutors
In the case of prosecutors, the most common issue is that prosecutors fail to disclose exculpatory evidence that they are constitutionally required to turn over to defense attorneys under the U.S. Supreme Court's Brady decision resulting in wrongful convictions (which are defended beyond all reason once the mistake is discovered about half the time).
While this is an ethical violation for prosecutors, in addition to a violation of a clearly established constitutional right, the proportion of cases where a Brady violation is found to have occurred in connection by an effort to vacate a criminal conviction that result in attorney regulation officials commencing cases against the prosecutors who violated the constitution in the case resulting in the wrongful incarceration is only about 1 in 100 in California where a rigorous study was conducted. It is a striking example of the capture of an agency by the people who are supposed to be regulated by it. The rate of adjudicated misconduct by prosecutors in California in that same year was roughly 1 per 500,000 people per year. About 80% of cases where misconduct by a prosecutor is determined to have occurred, however, are not found to be sufficient grounds to overturn a conviction, under the harmless error doctrine. or on procedural grounds like failure to preserve an issue for appeal. Damages from misconduct by a prosecutor will typically be nominal where a court determining that such a violation took place still finds that the sentence should stand, but will be very substantial in cases where the conviction is overturned.
So, one might expect about 10 such cases a year in Colorado, and one case of attorney discipline for misconduct by a prosecutor per decade in Colorado (which isn't too far from our actual experience), resulting in about 2 overturned convictions per year. Colorado has about 540 prosecutors employed by federal and state governments in any given year, and entry level positions typically have quite high turnover. So fewer then 2% of all prosecutors in the state would be exposed to any civil liability if suits were allowed in adjudicated cases of wrongdoing as described below, and less if a significant number of the violations are committed by repeat violators as if often the case in these situations. Only about 0.4% of prosecutors in any given year would face substantial civil liability under the proposed rule.
Probably the next most common type of misconduct by a prosecutor, which is closely related, is to offer evidence from a witness who is known to be lying on the stand and then to fail to correct the harm caused by those lies.
The U.S. Supreme Court took up such a case in 2009 on the question: "May a prosecutor be subject to civil prosecution when he allegedly violated the criminal defendants' substantial due process rights by fabricating evidence and then introducing it at trial against the defendants?", after the 8th Circuit Court of Appeals dismissed the claims of parties who were framed by a prosecutor who offered knowingly false testimony due to a prosecutor's absolute immunity. But, the U.S. Supreme Court then dismissed the case without an opinion when the parties settled the case, a result that kept the 8th Circuit absolute immunity precedent in place, while presumably resulting in a significant monetary settlement for the wrongfully convicted plaintiffs.
Misconduct By Judges
In the case of judges, the most typical situation (which is much less common) is for a corruption investigation to result in a criminal prosecution of a judge or a judicial ethics investigation of a judge to find wrongdoing. Not too infrequently, these cases involve improper sexual or financial relationships with prosecutors or other criminal justice system participants.
For example, Pennsylvania judge Mark A. Ciavarella Jr. took bribes totaling $2,600,000 from a juvenile private prison operator, in exchange for inappropriately convict more than 5,000 juveniles of delinquency and/or inappropriately sentence them to the private prison in a scheme that lasted six or seven years.
Many of those juveniles were still serving their sentences when he first pleaded guilty. The judge refused to accept the plea in light of an unwillingness to admit guilt and a belief that the 87 month incarceration deal was too sweet, after which Ciavarella was convicted of state and federal crimes for which he was sentenced to 28 years in prison, together with co-conspirators including another judge from the county who was sentenced to 17 and a half years. One of the individuals paying the bribe was sentenced to 18 months in prison (partially in a halfway house) while the other was sentenced to one year in prison. Both bribe payers also made large donations to charities for children in lieu of restitution or civil liability. A class action lawsuit brought by the victims of this misconduct has so far not produced a judgment or restitution for them.
While pleading guilty (a plea that was not accepted), Judge Ciavarella denied that he actually meted out inappropriate sentences, but statistically, the evidence is pretty strong:
For years, youth advocacy groups complained that Judge Ciavarella was unusually harsh. He sent a quarter of his juvenile defendants to detention centers from 2002 to 2006, compared with a state rate of 1 in 10. He also routinely ignored requests for leniency made by prosecutors and probation officers.Thus, probably something like 60% of the people he sent to juvenile detention centers didn't belong there, and many of the rest probably got longer sentences than they deserved. Several hundred juvenile sentences imposed by this judge were later vacated in a follow up investigation. In addition to excessive sentences, hundreds of juveniles were denied their constitutional right to counsel by Judge Ciavarella.
Or a West Virginia judge, Michael Thornsbury, who was sentenced to 50 months in federal prison for wrongfully incarcerating a man to prevent him from revealing that the county sheriff was illegally using prescription drugs not prescribed to him.
A Compromise Solution
There is a very sensible compromise between absolute immunity under current law, and the qualified immunity standard that applies to police officers, that would minimize litigation of groundless and frivolous cases against prosecutors and judges from their participation in the judicial process, while allowing the most glaring cases of injustice to give rise to civil liability.
Under the compromise solution, actions against judges and prosecutors currently barred by absolute immunity would continue to be barred except in cases where there was a final judicial determination that the official had violated a rule of professional ethics in connection with the Plaintiffs' case, or there was a final judicial determination in an underlying criminal action or collateral appeal of a criminal judgment, or in a separate criminal prosecution, that a constitutional right, ethical rule, or other legal duty of that official was committed by that official.
The cause of action would begin to accrue for statute of limitations purposes when the Plaintiff learned of, or should reasonably have discovered with reasonable diligence, the final judicial determination and all other elements of the cause of action.
Thus, individuals harmed by a judge taking bribes from a private prison operator, or having an affair with the prosecutor in a case where the individual was a party, or a prosecutor who violated someone's Brady rights, could be sued at that point for civil rights violations and any other applicable causes of action related to the misconduct by the public official.
The Argument For The Compromise Solution
Such violations by judges are very rare, and cases of prosecutors being judicially determined to have committed ethical violations, crimes or to have violated Brady in a post-conviction collateral attack on a judgment, are still quite rare, and would surely become more rare if violating these constitutional rights gave rise to any reasonable possibility of civil liability for prosecutors (many of whom would probably suddenly decide that it was a good time to institute an "open file" system for the lion's share of criminal prosecutions, implementing Brady institutionally in the way that most countries protect similar interests).
The earlier judicial determinations would often have collateral estoppel effect in the suit for civil liability, effectively establishing on day one a key element of the claim, which is the existence of wrongdoing in a case involving a Plaintiff. Not all of these decisions would have collateral estoppel effect (e.g. if the prosecutor who violated constitutional rights didn't participate in the collateral attack on the judgment proceeding), and not all of these claims would prevail. But, this rule would identify a group of cases in which there is a very high proportion of meritorious cases, for which civil lawsuits would be allowed, while continuing to screen 99.9%+ of all cases (overwhelmingly without merit, on average) in which the absolute immunity rule would continue to apply.
The new rule, would by definition, limit civil liability to pre-established "bad apples", whom defenders of the system constantly claim that they want to remove from the system.
It is also particularly glaring and injust for the legal system to openly and definitively after due process is had acknowledge that criminal laws, ethical rules or constitutional rights or other legal duties were violated, and yet still deny the victim of this wrongdoing any remedy, even then.
Prosecutors who have been proven to have secured wrongful convictions by violating the constitution, and judges whose corruption has been determined to have taken place in courts of law who have harmed litigants, should normatively have civil liability for their wrongdoing. It isn't even a hard call from a moral perspective, and the systemic and bureaucratic need to screen non-meritorious cases can be easily addressed with this compromise rule.