Carissa Byrne Hessick Profile picture
Criminal law professor at the University of North Carolina. Director of the Prosecutors and Politics Project.
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31 Jan
How can a story spin making dozens of policy experts and other officials being made available for interviews into a criticism? By casting the presidency as a television drama.
“As main protagonists go, Biden’s role has been comparatively limited ...” 🙄 politico.com/news/2021/01/3…
There may be legitimate reasons why it is important for the American people to hear from the president rather than other executive officials. And the sit down interview may provide something that other formats don’t.
If that’s so, then @politico should make that case on the merits rather than merely insinuating there’s a problem.

And definitely don’t fail to do so while literally talking about the president as a “protagonist”
Read 4 tweets
24 Jan
I completely understand why people are angry about this.

But the truth is that the criminal justice system routinely fails to prosecute people who are obviously guilty of crimes.

It’s at the very core of modern criminal justice enforcement.
It’s a serious problem that most Americans don’t know this. But we routinely fail to prosecute people who have obviously committed crimes. We just don’t have the capacity to pursue all of those cases.
Part of the problem is that we’ve made too many things illegal.

Another problem is that we’ve refused sufficiently fund the prosecutors, defense attorneys, and judges we’d need for full enforcement.

But we also don’t have the cultural commitment to full enforcement.
Read 6 tweets
22 Jan
I'm not interested in laying blame on anyone for the filibuster or it's selective demise.

But I am *very* interested in Bryan's first point about the filibuster and constitutional design. A few quick thoughts . . .
First, I'm generally a fan of not having legislatures pass too many laws. Especially in my filed--criminal law--an active legislature often means more punishment and less liberty.

But in modern times less active legislature doesn't necessarily mean fewer laws or more liberty.
Because it is so hard for legislatures to act, we see Congress and the states delegating a lot to agencies and executive officials. It's very easy for those institutions to act. And the harder it is for legislatures to act, the more it incentivizes and normalizes delegations.
Read 13 tweets
18 Jan
I appreciate that most people want to talk about this as Turley being hypocritical.

But we should also see this as a serious breach of academic ethics and professionalism.
Turley’s prominence in public discourse relies, in part, on his position as a professor—that status carries with it a claim to expertise on legal matters.

Apparently his expertise led him to conclude the exact opposite of what he is claiming now on an issue of great importance.
When I say “great importance,” I’m not exaggerating. Some Senators have already signaled that their vote in the impeachment trial will turn on this issue. And we know because he was asked to testify at previous impeachments, that GOP leadership sees Turley as an authority.
Read 8 tweets
14 Jan
For all of the smart people (including some lawyers who follow me!) who keep saying that they have unanswered questions about problems with the election, please read this. washingtonpost.com/politics/us-at…
Whatever questions or concerns you have are simply not based in fact.
I understand that Fox News and various conservative websites keep insisting that there are real questions that remain unanswered.

But they are misleading you.

They're aren't real questions. Just misleading statements and flat out lies meant to create doubt in your mind.
Even the acting US Attorney in Atlanta was surprised that there was nothing to the allegations of voter fraud in that state.

I'm sure he watches the same news programs and reads the same websites you do.

But know he knows that all of those stories are false.
Read 14 tweets
11 Jan
So strange that Law & Crime article questioning whether the Capitol rioters could be prosecuted for felony murder and it *never discusses* the most obvious predicate felony—burglary

lawandcrime.com/legal-analysis… via @lawcrimenews
As I will be teaching my first year criminal law students later this semester, felony murder is often a question of charging strategy for prosecutors. The defendant has often multiple felonies, some of which trigger felony murder and some of which don’t.
This article makes the classic mistake of analyzing only one possible underlying felony—sedition—and not the other, more mundane felonies, including burglary.
It’s the sort of error that loses students a lot of points on their final exam!
Read 13 tweets
9 Jan
I was very glad to see so many GOP officials condemn the violence and damage caused when Pres Trump's supporters stormed the Capitol.

But I am troubled to see how many continue to either equivocate about--or even explicitly support--false claims of election fraud.
If Republicans want to push for legislation that would make it more difficult to vote, they are free to do so in Congress and statehouses.

But they need to clearly and forcefully denounce false claims that Joe Biden won the presidency because of fraud.
The only reason that Pres Trump was able to rally his supporters and tell them to march to the Capitol on Wednesday was because the GOP failed to denounce his false claims about a stolen election.

Many members of Congress supported his claims even after the Capitol was stormed.
Read 6 tweets
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
6 Jan
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.
Read 6 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.
washingtonpost.com/local/legal-is…
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
12 Oct 20
At today's Supreme Court confirmation hearing, we will be told that judges are not supposed to make policy decisions.
That statement is entirely false.
The people who wrote our Constitution expected judges to make policy decisions, and that's what they did for a long time. ImageImage
In the years before and after the Constitution was ratified, judges and non-judges alike had no doubt that judges could make policy. This was the whole idea behind the "common law" that they had brought with them in England. Judges even had the power to create new crimes. ImageImageImage
The power of judges to set policy came under attack when partisan battles between the Federalists and the Democrats began to play out in federal court prosecutions for common law crimes. Once the Federalists lost their hold on the courts, the Court curtailed that power. ImageImage
Read 7 tweets
21 Sep 20
If your criticism about a potential Supreme Court nominee is her religion, can I kindly suggest that you look in the mirror and think about when you decided that religious discrimination is okay.
To all the folks in my mentions telling me that it’s just one *type* of Catholicism that you think makes someone unfit for office/likely to impose her religious views on others—-that’s still religious discrimination.
The replies to this are making my stomach churn. But I’ll give it one last shot for those who are insisting that Coney Barrett’s kingdom of god quote means she will force her religion on others.

Have you heard religious people talk about their faith before?
Read 5 tweets
28 Aug 20
The Trump/Pence "law and order" campaign argument is based on a claim that Democrats support rioters or are at least unwilling to do much about them.

But there's actually a big split among folks on the left about whether to cut police budgets and how to respond to violence.
There are some elected officials, like people on city councils in Minneapolis and Seattle, who want to cut police funding.

But other Democratic officials--including Biden and Congressional leadership--who have repeatedly said they oppose those efforts.
There are also divisions within local governments on these issues. For example, earlier this week the Seattle mayor vetoed the city council's budget, which had included significant cuts to the Seattle PDs budget.
Read 11 tweets
27 Aug 20
This article does a good job pointing out the inherently illogical argument at the core of the Trump/Pence “law and Order” claim in favor of their re-election. They point to lawlessness occurring now as something that will happen if Biden is elected. nytimes.com/2020/08/27/us/…
There is, of course, more to their re-election claim: That Trump can’t stop what’s happening now because Democrats control the cities. That electing Biden will make things even worse. But the claim still isn’t logical.
In addition to the lack of logic, the re-election claim also misses something important--something that I hope the media coverage of the claim can add:
Sending in the National Guard and big federal interventions like Operation Legend probably aren't going to be very effective.
Read 7 tweets
12 Aug 20
It’s an admittedly small sample size, but all of the actual prosecutors that I’ve talked to say that Kamala Harris was a progressive prosecutor.

It’s the folks who aren’t prosecutors who insist she wasn’t.
Lots of non-prosecutors are responding to this tweet by insisting that Harris was not a progressive prosecutor.

Others are insisting that prosecutors, as a group, aren’t to be trusted to determine who is a progressive prosecutor and who is not.
I don’t have a good answer for the question of how we know who’s a progressive prosecutor and who is not.

Part of the difficulty, I think, lies in the murkiness of that label. Aside from listing particular people, it’s not clear who qualifies and who does not.
Read 13 tweets
5 Aug 20
This passage from @AWeissmann_ in the Atlantic is astounding. The idea that prosecutors “cannot ignore or invent facts” to ensure that a defendant receives a certain sentence is so entirely at odds with what routinely happens in criminal cases, I can’t believe he said it.
The error in this passage isn’t just an ambiguity or overstatement. Weissmann says that pretending as though the facts of a case were less serious than they actually were isn’t permitted because prosecutors can’t lie and say facts were more serious. But that argument is crazy.
As a constitutional matter, prosecutors have great power to be lenient. When they refuse to indict, dismiss charges, and offer favorable plea bargains, their power in these matters isn’t absolute—but it’s awfully close.

Their power to be harsh, on the other hand, is more limited
Read 21 tweets
2 Jul 20
I’ve seen a lot of recent takes about how people should not pull down statues, damage property, or refuse to comply with curfews or police orders to disperse.

I’m incredibly sympathetic to the idea that people should follow the law, but these takes miss something important ...
The “follow the law” takes all include the idea that people should use the democratic process to change things that they don’t like—tell the city council to take down the statues, elect a mayor who’ll appoint new police leadership, or just vote for different people & policies
What the “democratic process” argument fails to appreciate is that there are real limits to the democratic process on these issues. “Just vote” won’t fix these problems. And so we shouldn’t pretend that it will.
Read 12 tweets