Dean A. Strang (Drake University — Law School) has posted Prosecuting Judges: Vitality, Origins, and Limits of Judicial Acts Immunity in Criminal Cases on SSRN. Here is the abstract:
In 2019, the U.S. Department of Justice indicted a Massachusetts judge for actions in her courtroom, alleging that she tried to conceal an immigrant whom ICE agents sought. The government did not claim any graft, self-dealing, or other ordinary criminal purpose. In 2025, the Justice Department did the same to a Wisconsin judge. In both cases, federal courts perceived little guidance in addressing the state judges’ arguments that official acts immunity protected them not just from civil damages, but also from criminal prosecution. During the nineteenth century, American courts endorsed broad immunity for judges and other government actors from civil damages, even for corrupt acts. Since the late 1960’s, civil immunity has burgeoned dramatically, especially qualified immunity for police and other government employees. This civil development has caused scholars either to ignore criminal immunity for most official acts or, worse, to conclude inaccurately that judges have no—or almost no—criminal immunity for official acts. That is wrong, and now dangerously wrong as federal prosecutors demonstrate a new propensity to punish state judges who do not bend to the wishes of federal agents and policymakers. Judicial immunity, which clearly applied to criminal charges at common law and has persisted, still has an essential role to play there and has readily discernible contours. Judges’ official acts untainted by graft, violence, or malicious self-interest are and should be immune from prosecution, unless they violate individual constitutional rights. That immunity from criminal prosecution, narrower than current civil immunity, is vital in maintaining democratic norms in our federalist structure of government.
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