« New research suggests justice delayed results in justice more severe | Main | Notable (and notably little) early coverage of USSC's decision to make new criminal history rules retroactive »

August 30, 2023

"The (Local) Prosecutor"

The title of this post is the title of this notable new article available via SSRN authored by Carissa Byrne Hessick and Rick Su. Here is its abstract:

The rise of the reform prosecutor has led to a backlash. Many states have sought to circumvent the power of reform prosecutors, others to sanction them, and some to replace them with unelected appointees.  These efforts have been met with resistance and, in some instances, with legal challenges.  Resolving those challenges may prove difficult because local prosecutors straddle three distinct axis within state governments: the horizontal divide between its branches, the vertical divide between the state government and its local subdivisions, and the constitutional divide between constitutional and statutory offices.  This essay exposes the significant state variation in the legal classification of prosecutors along these divides, and it explains how that variation not only complicates the legal status of prosecutors within any particular state, but also prevents the formation of a shared understanding of what role the local prosecutor plays in state government.  Such an understanding is of increasing importance as the enormous discretion delegated to prosecutors and the deepening partisan divides within states suggest that intense battles over the role of the prosecutor are likely to continue.

August 30, 2023 at 09:03 AM | Permalink


Speaking of the local prosecutor, here's an article you'd never see on this website--why, because Doug is part of the release 'em crowd. He's a little coy about that, but nonetheless that's where he is--although he's willing to defend prosecutors who falsely tell a jury that "sometimes you have to take a beating".


Sickening, but Doug's all good.

Posted by: federalist | Aug 30, 2023 2:05:21 PM

federalist --

The situation in Chicago is beyond belief. Even the NYT has had to take note. https://ringsideatthereckoning.substack.com/p/the-klan-was-never-this-effective

Posted by: Bill Otis | Aug 30, 2023 2:30:00 PM

federalist, if I wrote posts without using my name, perhaps that might be considered coy; if I suggested people supported something that they have never mentioned or even knew about, that might be considered sickening. But feel free to keep shouting your feelings and misguided claims about both law and fact: FFM.

Posted by: Doug B | Aug 30, 2023 3:31:12 PM

Federalist writes that Professor Berman is "part of the release 'em crowd." I disagree. I think that his views on the necessity and sufficiency of incarceration are quite balanced.

Posted by: Emily | Aug 31, 2023 12:42:04 PM

Professor Berman defended Plata (from a policy standpoint--Kennedy's opinion is hardly defensible from a legal one). He's lamented harsh sentences for heinous crimes are contrary to the idea of a free society. He spotlights papers from the release 'em crowd. And he always seems to want to take the lenience side in debates with Bill Otis.

Just to get a bead on your view of the world Emily, what do you think about Kim Foxx not prosecuting gangbangers for the heinous death of an innocent bystander> I find it appalling. 'Rat justice at its finest.

Posted by: federalist | Aug 31, 2023 1:33:55 PM

and tmm, the pox on both houses looks like a sick joke when you look at the lack of prosecution in the case I just highlighted.

Posted by: federalist | Aug 31, 2023 1:34:42 PM


I think Doug was more outrage about me disrespecting prosecutors than this . . . .. your thoughts, Emily?

Posted by: federalist | Aug 31, 2023 1:50:00 PM

federalist: you are such an inaccurate "narrator," it is aggravating to have to correct repeated factual misrepresentations.

1. I defended the Plata result based on text of the law that Congress enacted; notably, Justice Scalia's dissent advocated that Justices "shape the law" and "bend every effort to read the law" to reach a different result than the correct legal one the majority reached based on the text of the statute Congress passed. (You have also misrepresented Justice Kennedy's opinion so many times it is exhausting.)

2. I believe excessive prison sentences that do not advance public safety purposes are contrary to the core values of a nation "conceived in liberty." I also believe some heinous people merit the very harshest sentences (eg, the death penalty).

3. When have I expressed "outrage" at your disrespect for prosecutors, federalist? I criticize you for making so many misrepresentations about law and fact, but I rarely get outraged at anyone, let alone those who question the work of law enforcement agents.

FFM, but let's try to reduce the number of repeated factual misrepresentations when you express your feelings.

Posted by: Doug B | Aug 31, 2023 2:31:35 PM

but wouldn't do the same when it comes to public safety

Posted by: federalist | Sep 1, 2023 3:07:47 PM

federalist --

I too would be interested in Emily's view on the question raised by the anti-American Oakland prosecutor, to wit, whether white people should get higher sentences and more serious charges for exactly the same conduct as black people.

My take on it is here, https://ringsideatthereckoning.substack.com/p/white-people-stink-part-eight-zillion

Posted by: Bill Otis | Sep 2, 2023 1:01:28 AM

I'd be interested in Doug's view.

As for Doug's FFM snipe, it's pretty weak.

(1) Scalia makes very cogent arguments about the powers of a court and the actual statutory language. Doug rips those quotes out of context. It's really weak.

(2) You just mouthed a platitude. You've never dealt with points about risk allocation and some sentences that have let thugs back out on the street to commit truly horrendous acts (e.g., Komisarjevsky).

(3) Oh come on. Just the idea that disagreement = disrespect is silly. It's funny you make the argument that I ignore fact and law, when (a) I can watch a video and (b) that we're not talking about law (i.e., the kind to debate over) when it's a decision of a judge or prosecutor that isn't reviewed by an appeals court.

Posted by: federalist | Sep 5, 2023 11:49:26 AM

Bill, you don't go far enough. Given that the DA is an attorney, that the California Bar/Supreme Court has done nothing makes them illegitimate. Yes. You heard me. Illegitimate. Whatever consequences flow from that are the fault of them, not the rest of us.

Posted by: federalist | Sep 5, 2023 12:53:53 PM


1. Your misrepresentation of my views repeatedly lead me never to credit anything you say, including your misunderstanding of the opinions in Plata.
2. Some sentences prove in retrospect to be too short, some too long. The only way to reduce entirely risk of recidivism is to execute everyone.
3. I am not sure I quite understand the gibberish in these sentence especially if you are claiming that a judge or prosecutor isn't subject to following "law" even if their decisions may not be subject to an appeal.

And FFM is not a snipe, just a useful reminder that your points largely flow from your strong feelings about matters and not strong thinking about the law. And that you show now interest in developing your thoughts (with citations) under your real name serves as the main reason why FFM captures usefully what you are really all about. You want to share your feelings (behind your pen name), and I will be happy to pat you on the head for your feelings.

Posted by: Doug B | Sep 5, 2023 2:43:01 PM

Regarding 3, surely you understand that the point is that a prosecutor's (or judge's) actions that are not subject to appeal aren't generally "authority" as we discuss it. That the Kenosha prosecutors prosecuted without probable cause isn't something an appeals court is going to address. And judges very often let juries sort things out. Rittenhouse was in the midst of retreating. There is indisputable evidence that, even if you buy that the mere carrying of a gun constitutes provocation (which is unadulterated BS), he was, in fact, in full retreat, which allowed him to use deadly force to combat a deadly threat--i.e., he could be dispossessed of his weapon.

And for someone who crows about freedom, it's interesting to see that you have zero reservations about a licensed carrier being in a place where he had every right to be, and having his vehicle attacked by a mob that had a person with an AK-47, being subject to a prosecution.

Posted by: federalist | Sep 5, 2023 2:55:45 PM

federalist --

The people who'll face the worst consequences of the disastrous and racist behavior of the Oakland "prosecutor" are the residents of Oakland. California could use a governor like DeSantis, who'll remove lawless local prosecutors. Instead it has Newsom, who's jockeying with fellow Californian Kamala Harris to see who gets the nomination when Joe can't fake it anymore.

I went to law school in that beautiful state and I mourn for it. The people who can leave are leaving. It's a tragedy.

Posted by: Bill Otis | Sep 5, 2023 3:56:15 PM

And what of the California bar/Supreme Court--they stand by and watch this appalling behavior. And then there's the lack of coverage by the usual suspects, the NY Times, WaPo etc.

It is very sad.

Be careful in the faculty lounge.

Posted by: federalist | Sep 5, 2023 4:32:24 PM

federalist: many discretionary actions by prosecutors are subject to review by trial judges (and appeals judges) -- eg, charges can be subject to review in a motion to dismiss. I believe Rittenhouse brought various motions to dismiss at various stages, some of which were granted, some denied. A surmise you do not like how the law was applied in that case, but your feelings are not law. FFM.

Posted by: Doug B | Sep 5, 2023 5:18:51 PM

That a trial judge punted to the jury in a criminal case is not a surprise and no, I don't like it, and there is no evidence in the Rittenhouse case from which a reasonable fact-finder could determine that SD was negated BRD. That is applying the law. And it's telling that someone who yaps about "freedom" is ok with subjecting someone who was lawfully carrying a gun in a place he was lawfully entitled to be who was retreating from a threat also believes that there's no threat to freedom in subjecting that person to the possibility of LWOP.

And it's telling that you cannot take on Scalia's statutory analysis either . . . .

Posted by: federalist | Sep 5, 2023 5:38:55 PM

I have highlighted the statutory arguments in support of the Plata majority ruling repeatedly, that you cannot realize that amid your feelings is what's telling. (And, of course, Scalia makes very plain that he wants what he sees as the "proper outcome ... to shape the law, rather than vice versa." That's not statutory analysis, it is outcome-oriented decision-making as part of his call to "bend every effort to read the law in such a way as to avoid" the result he dislikes.)

And a trial judge is violating the law to "punt" to a jury if there is no evidence to support a possible guilty verdict. FFM --- though it is growing boring to keep discussing your feelings on these tired matters (which have become no more legally sound). But FFM.

Posted by: Doug B | Sep 5, 2023 6:16:29 PM

If there is no evidence from which SD can be negated beyond reasonable doubt, then the prosecutor is ethically bound to dismiss the charges. We are not supposed to have trials in those cases. You know this.

Posted by: federalist | Sep 6, 2023 9:19:59 AM

And the judge would be legally obligated to dismiss the charges if there was no way a jury could lawfully convicted --- the Rittenhouse lawyers made this claim, and the judge rejected it on the law (repeatedly, I believe). Ergo, your complaint is with the applicable law and/or how the judge applied that law. FFM, but they do not trump the law no matter how many times you whine about your feelings. You should know this.

Posted by: Doug B | Sep 6, 2023 10:03:28 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB