Author: Kent Scheidegger

Suing the DA for Discriminatory Pattern of Non-Prosecution

by · Mar 17, 2021 10:47 am

The Supreme Court decided long ago that “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). But can a victim of crime sue a district attorney on the ground that a long pattern of discriminatory nonprosecution was a contributing cause of the crime? An amicus brief by former Circuit Judge Alex Kozinski joined by former Attorney General and District Judge Michael Mukasey and former District Judge F.A. Little asks the Fifth Circuit to address that question en banc. Beneath it lies a tangled tale as thick as the undergrowth in Louisiana swamp country. Continue reading . . .

Cal. App. Dumps ACLU Suit in Execution Controversy

by · Mar 10, 2021 3:38 pm

Three years ago, three California District Attorneys sought to intervene in the long-running federal litigation over California’s lethal injection method. The Attorney General, in his role as attorney for the head of the prison department, was not properly representing the people of the State as the plaintiff in the underlying criminal cases, in their view. The federal district court refused intervention, and the DAs appealed to the Ninth Circuit.

Last Friday, the ACLU filed a petition for writ of mandate in the California Court of Appeal for the First District, which covers the northern part of the San Francisco Bay Area and the north coast. They asked the state court to restrain the DAs from litigating in federal court. See this press release, with a link to the petition.

Yesterday, a mere two business days after the petition was filed, the Court of Appeal dismissed it. They did not even wait for the DAs to respond. Continue reading . . .

Americans Oppose Defunding the Police by 3 to 1

by · Mar 9, 2021 4:05 pm

Three times as many Americans oppose defunding the police as support the notion, according to a recent Ipsos/USA Today poll. Sarah Elbeshbishi and Mabinty Quarshie have this report in USA Today.

Support to redistribute police department funding has decreased among Americans since August after a summer of protests had erupted across the country against racial injustice and police brutality, a recent Ipsos/USA TODAY poll found.

Continue reading . . .

Addicts for Incarceration

by · Mar 8, 2021 2:37 pm

Deseret News has this op-ed collectively written by The Other Side Academy.

We are a group of former longtime felons and drug addicts. Collectively we have been arrested over 400 times. Between us, we’ve been incarcerated for well over 150 years. And that was the best thing you could have done for us. Continue reading . . .

Supreme Court Adds Fourth Amendment Case

by · Mar 8, 2021 8:36 am

The U.S. Supreme Court this morning took up a search-and-seizure case for full briefing and argument. The case involves procedural questions regarding (1) the termination of the criminal case before the seized person can sue for damages and (2) the burden of proof on the existence of exigent circumstances to justify a warrantless entry. [See update below.] Continue reading . . .

SCOTUS: Nominal Damages Are Enough to Avoid Mootness

by · Mar 8, 2021 8:13 am

A recurring problem in civil rights litigation is that a party with standing to have an allegedly illegal practice enjoined may not have standing by the time the litigation reaches completion. Students may graduate. Employees may change jobs. If an injunction is the only relief sought, the case may be declared moot and dismissed. In addition to the mootness problem, injunctive relief might not be available from the beginning. A person subjected to a questioned police practice may be highly unlikely to ever face it again.

A party whose rights are violated but who suffers no real damage may sue for “nominal damages,” a token award of, say, one dollar. The Supreme Court held today that such damages are sufficient to prevent mootness and allow the suit to reach conclusion. Continue reading . . .

DA Gascón and What “Studies Show”

by · Mar 3, 2021 11:51 am

Do “studies show” that longer prison sentences increase recidivism?

Los Angeles District Attorney George Gascón’s Special Directive 20-08 says:

While initial incarceration prevents crime through incapacitation, studies show that each additional sentence year causes a 4 to 7 percent increase in recidivism that actually outweighs the incapacitation benefit. 1
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1 Mueller-Smith, Michael (2015) “The Criminal and Labor Market Impacts of Incarceration.”, available at https://sites.lsa.umich.edu/mgms/wp-content/uploads/sites/283/2015/09/incar.pdf.

Note the plural, “studies show.” Despite the plural, Gascón has never, to my knowledge, cited anything other than this one unpublished manuscript. Continue reading . . .

Insufficient Use of Force by Police

by · Feb 25, 2021 1:01 pm

The extent to which rioters were able to enter the Capitol, trash it, and disrupt the work of Congress had multiple causes. One of them was insufficient use of force by the Capitol police. Buried deep in this AP story is this comment by Acting Capitol Police Chief Yogananda Pittman: “She also says officers didn’t understand when they were allowed to use deadly force, and that less-than-lethal weapons that officers had were not as successful as they expected.”

Now that Members of Congress have personally experienced the adverse consequences of insufficient use of force by police, will they learn the needed lessons from this experience? Continue reading . . .