David has a great point--a lot of people's intuitions about whether DAs have a duty to bring all plausible charges are often bound up in their policy preferences about the particular types of charges/defendants.
To be clear, people often draw a distinction between a prosecutor's decision not to bring charges in an individual case and a decision not to charge a certain category of cases.
These arguments are reminiscent of the arguments we saw in the debate over Obama's DACA policy.
The argument essentially boils down to the idea that prosecutors' executive power gives them discretion in individual cases, but decisions not to prosecute entire categories of cases are akin to decriminalization and so they infringe on the legislative power.
There are several responses to that argument. But my favorite is the idea of democratic accountability.

Usually decisions in individual cases are made by career prosecutors.

So the only way for the elected/appointed prosecutor to exercise discretion is through general policies
In any event, the bigger takeaway from David's point is that we should question whether our intuitions about prosecutorial power are really intuitions about the appropriate role of prosecutorial discretion, or whether they are about the substance of the specific decision.
Rebecca makes a great point here--that prosecutorial policymaking is an opportunity for local community input into criminal justice policy.
We've been trying to get a project on this issue off the ground @ppp_unc --- but that sort of research is expensive!

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More from @CBHessick

7 Jan
I have seen so many people (including folks on #lawtwitter) comparing what happened at the Capitol yesterday with the violence and property damage that happened in some cities during protests last summer.

Let me explain what is wrong with that analogy . . . . .
To clarify -- my disagreement is not with those who are pointing out that law enforcement didn't respond with the same level of force and arrests at the capitol as it did during BLM protests.

That comparison deserves to be drawn and it raises some very important questions.
My disagreement is with those who are saying that what happened at the Capitol yesterday is so similar to what happened during protests this summer, that people's reactions ought to be similar--a suggestion that those reacting more strongly now are hypocritical.
Read 18 tweets
18 Dec 20
Let’s talk about this story. It discusses a NJ bill that is designed to make sentencing less harsh. The bill is being held up because a lawmaker introduced an amendment that would eliminate the mandatory minimum for one type of corruption. nytimes.com/2020/12/17/nyr…
First, let's talk about the framing of the story. The lede is about how the lawmaker who introduced the amendment has a girlfriend whose son is facing corruption charges. The story minces no words: It says the amendment was added specifically to help that man.
The idea of powerful people helping each other escape punishment is a powerful one. It is the stuff of headlines and outrage, and so I'm not surprised that this is how the story is being framed.
Read 25 tweets
29 Nov 20
The President is on Fox News right now saying that maybe the FBI and the Department of Justice were involved in the supposed election fraud in the 2020 election.

When will this nightmare end?
Update: He says "people keep asking" DOJ whether they are looking into all of the fraud allegations, and they have been told "yes, we are looking"
But "no one" has told him that they've arrested anyone who has done anything wrong.
Now Trump's asking why DOJ still hasn't done anything to prosecute Jim Comey, Andrew McCabe, and John Brennan.

I'm no fan of Bill Barr's, but this bizarre interview suggests that he has been resisting an awful lot of pressure from this president to persecute political enemies.
Read 4 tweets
28 Nov 20
One thing that I really like about traditional legal scholarship is that it asks the writer to deal with legal issues in the abstract.

That helps to ensure that legal principles and generalized analysis drive conclusions rather than just situational facts.
That's why, when it comes to the hot topic of the day, I am always eager to read the opinions from legal scholars who wrote about the issue before it became enmeshed with present-day politics
They are less likely to let the situation in which the issue arose affect their analysis
That's certainly not always possible. Some topics are just too obscure to have warranted the time and effort that is required to write traditional legal scholarship. (Hello, GSA ascertainment!!)

But for plenty of other topics there's at least a law review article or two.
Read 7 tweets
28 Nov 20
It’s really hard to turn down interviews from national media outlets. But I think those of us who are being interviewed because of our expertise have a professional obligation not to give those interviews when the topic is outside our area of expertise.
And when I say “it’s hard,” I mean it really sucks. And I haven’t been perfect on this front.

But I feel a bit better when I give the reporter/producer the name of someone who *is* an expert—especially if that person is more junior & doesn’t always get a lot of recognition.
Even that isn’t always enough to make me feel better, so I’ll tell the reporter to tell the other person I recommended them.

“Seriously, use my name,” I’ll say.

It lets the person know I value them. And it also lets me tell *someone* that I gave up a chance at the spotlight.
Read 4 tweets
13 Nov 20
Fascinating @rachelweinerwp article about the court battles of a judge in Alexandria who is being sued by both the local prosecutor and the local public defender.
The judge and the local prosecutor @parisa4justice are clashing, in part, because VA gives prosecutors less control over charging decisions than a lot of other states. For many crimes, police make charging decisions, and prosecutors have to move to dismiss.
A bill was introduced in the VA legislature that would have changed this arrangement, giving VA prosecutors more power to dismiss charges without having a judge weigh in.

It looks like that legislation stalled. Do folks in VA know more? lis.virginia.gov/cgi-bin/legp60…
Read 7 tweets

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