Mark W. Bennett (U.S. District Court (Northern District of Iowa)) has posted Reinvigorating and Enhancing Jury Trials Through an Overdue Juror Bill of Rights: WWJW — What Would Jurors Want? — A Federal Trial Judge’s View (Arizona State Law Journal, Vol. 38, Fall 2016 (Forthcoming)) on SSRN.

Here is the abstract:

Juries are deeply enshrined by the U.S. Constitution and firmly embedded in our system of justice. Thus, it is surprising that jurors do not yet have something akin to their own widely adopted bill of rights. Regrettably, this is the result of too many trial judges failing to practice WWWJ — “what would jurors want” — a jury centered approach to judging. The state of Arizona, with its launch in 1993 of the Arizona Jury Project, is the pioneering jurisdiction of a more jury-centered approach. If trial judges embraced WWJW it would engender greater respect for jurors and lead to trial innovations which would significantly enhance the juror experience. These innovations would also increase the fairness of jury trials. Adopting a bill of rights for jurors improves jurors’ positive experiences and feelings about trial by jury as they participate in the purest form of democracy in action. This article proposes five bill of rights that have been proven to achieve these goals. If adopted by courts and practiced by trial judges, jurors across the nation will exit courthouses as our greatest community ambassadors for the Sixth and Seventh Amendment rights to trial by jury. This is an important step to ensuring that vanishing civil jury trials are not, going, going, gone!

Roughly eight months ago the Justice Department announced new curbs on racial profiling. This is a difficult issue, as illustrated by what the Justice Department said when it issued its guidelines.

Race or the other characteristics can still be taken into account, according to the Justice Department policy, if a federal law enforcement officer has “trustworthy information, relevant to the locality or time frame, linking persons possessing that characteristic to a threat to national security, homeland security or intelligence activity.

Maryland became the first state to follow suit, with guidelines aimed at severely restricting law enforcement officers from singling out suspects based on traits including race, ethnicity and sexual orientation.

Attorney General Brian E. Frosh of Maryland issued the rules in a nine-page memorandum in which he condemned profiling of racial minorities by the police, calling it a “deeply unfair” practice.

“Racial profiling continues despite the fact that it is against the law of the United States; it’s against Maryland law,” Mr. Frosh said in a telephone interview shortly after announcing the guidelines at a news conference in the state capital, Annapolis. “We need people to understand that racial profiling is illegal, and it’s bad police work.”

View full story in The New York Times here.

The New York Times has an interesting editorial on marijuana which begins:

Even as support for ending marijuana prohibition is building around the country, Congress and the Obama administration remain far too timid about the need for change.

Last year, residents in Alaska, Oregon and the District of Columbia voted to join Colorado and Washington State in making recreational use of marijuana legal. Later this year, residents of Ohio are expected to vote on a ballot measure that would legalize it. Nevadans will vote on a legalization proposal next year. And Californians could vote on several similar measures next year.

Instead of standing by as change sweeps the country, federal lawmakers should be more actively debating and changing the nation’s absurd marijuana policies, policies that have ruined millions of lives and wasted billions of dollars. Their inaction is putting businesses and individuals in states that have legalized medical and recreational marijuana in dubious legal territory — doing something that is legal in their state but is considered a federal crime.

The editorial can be found here.

Thanks to Professor Douglas Berman and his Sentencing Law & Policy Blog, we are alerted to this new Marshall Project feature story about a modern risk assessment tool being used at sentencing.  The piece, carrying the main headline “The New Science of Sentencing,” merits a read in full, and here are excerpts:

Pennsylvania is on the verge of becoming one of the first states in the country to base criminal sentences not only on what crimes people have been convicted of, but also on whether they are deemed likely to commit additional crimes.  As early as next year, judges there could receive statistically derived tools known as risk assessments to help them decide how much prison time — if any — to assign.

Risk assessments have existed in various forms for a century, but over the past two decades, they have spread through the American justice system, driven by advances in social science.  The tools try to predict recidivism — repeat offending or breaking the rules of probation or parole — using statistical probabilities based on factors such as age, employment history and prior criminal record.  They are now used at some stage of the criminal justice process in nearly every state.  Many court systems use the tools to guide decisions about which prisoners to release on parole, for example, and risk assessments are becoming increasingly popular as a way to help set bail for inmates awaiting trial.

But Pennsylvania is about to take a step most states have until now resisted for adult defendants: using risk assessment in sentencing itself.  A state commission is putting the finishing touches on a plan that, if implemented as expected, could allow some offenders considered low risk to get shorter prison sentences than they would otherwise or avoid incarceration entirely.  Those deemed high risk could spend more time behind bars….

[T]he approach has bipartisan appeal: Among some conservatives, risk assessment appeals to the desire to spend tax dollars on locking up only those criminals who are truly dangerous to society. And some liberals hope a data-driven justice system will be less punitive overall and correct for the personal, often subconscious biases of police, judges and probation officers. In theory, using risk assessment tools could lead to both less incarceration and less crime.

There are more than 60 risk assessment tools in use across the U.S., and they vary widely. But in their simplest form, they are questionnaires — typically filled out by a jail staff member, probation officer or psychologist — that assign points to offenders based on anything from demographic factors to family background to criminal history. The resulting scores are based on statistical probabilities derived from previous offenders’ behavior. A low score designates an offender as “low risk” and could result in lower bail, less prison time or less restrictive probation or parole terms; a high score can lead to tougher sentences or tighter monitoring.

The risk assessment trend is controversial. Critics have raised numerous questions: Is it fair to make decisions in an individual case based on what similar offenders have done in the past? Is it acceptable to use characteristics that might be associated with race or socioeconomic status, such as the criminal record of a person’s parents? And even if states can resolve such philosophical questions, there are also practical ones: What to do about unreliable data? Which of the many available tools — some of them licensed by for-profit companies — should policymakers choose?…

The core questions around risk assessment aren’t about data.  They are about what the goals of criminal justice reforms should be.  Some supporters see reducing incarceration as the primary goal; others want to focus on reducing recidivism; still others want to eliminate racial disparities.  Risk assessments have drawn widespread support in part because, as long as they remain in the realm of the theoretical, they can accomplish all those goals.  But once they enter the real world, there are usually trade-offs.

Deadlines for appeals or motions to reconsider are complex enough for lawyers, so it should come as no shock that self-represented people have even more difficulty. Perhaps trial courts need to take advice from Judge Richard Posner:

“To avoid this result in future cases, consideration should be given to requiring district judges to accompany their judgments in pro se cases with a statement of the options and associated deadlines for reconsideration or appeal of the judgment.” Circuit Judge Richard A. Posner issued this decision recently on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit in a case involving an imprisoned pro se appellant.

Former President George W. Bush reported for jury duty recently. President Bush reported to the George Allen Courts Building in Dallas and Judge Eric Moye took the opportunity to talk about the importance of everyone reporting for jury duty:

“One of the remarks I made to [the] jury was all of you have some reason why you have to do something else. But take a look over and see you have the former president who has given his time to be here, so think how good your excuses for getting out of here really are.”

President Bush never did get to actually serve.  “He was number 27 of a 35 member panel and we only got through number 23,” Judge Moye told the Dallas Morning News.