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Felons, Jury Duty, and Discrimination

February 21, 2018 | Category: Civil Rights

Jury duty is commonly regarded in American society as an arduous chore and an unwanted task. We tend to take the honor of jury for granted.

Many Americans are ineligible for jury service due to past mistakes or associations. The repercussions of these restrictions are painfully apparent in the criminal justice system. Though some states are reforming their jury service laws to include citizens and residents who were previously deemed ineligible, many regions of the country continue to exclude large portions of the population from serving on a jury.

Exclusions

In the state of Pennsylvania, jurors must:

  • Be at least 18 years old
  • Be able to read, write, and speak English
  • Not be convicted of a crime punishable by imprisonment of one year or more

The automatic exclusion of Pennsylvania residents convicted of a crime punishable by imprisonment of one year or more from jury service is known as a “statutory disqualification”. Pennsylvania is not alone in this statutory disqualification; the federal bar and 27 states institute a lifetime ban for convicted felons.

Statutory disqualifications are just one of the ways that individuals convicted of crimes are excluded from jury service. Often times, states compile jury summons from voter registration. In eleven states, convicted felons are either not permitted to vote or permitted to vote by way of governor-approved individual petitions.

In total, statutory disqualifications exclude 19.8 million Americans from jury service. To put that figure in perspective, 8.6% of the adult American population may not serve as a juror. 

Why do we have these exclusions?

There are many individuals who have challenged the constitutionality of statutory disqualifications based on Sixth Amendment protections. In most instances, the courts agree that neither mandatory exclusion nor mandatory inclusion is required by the federal constitution.

There are two arguments that dominate the defense of such exclusions. The first prominent argument is that once a person has been involved in criminal activity, he or she is far less likely to respect and give effect to criminal laws. The second argument rests on the assumption that a person who has been convicted of a crime will naturally harbor a sort of grudge against the system; therefore, he or she will innately be inclined to feel compassion for the defendant and will be biased against the government.

In an interview for The Washington PostFlorida State University criminology professor, Dan Mears, said, “It seems constitutionally questionable that someone could just assume something about a group.” Many in the field not only question this assumption’s constitutionality, but its accuracy. 

A recent southern California mock jury study concluded that the pre-trial bias of convicted felons is extremely close to the distribution of biases found in average juror pools. One-third of the felons were shown to have a pro-prosecution or neutral bias. Though convicted felon jurors were slightly more inclined to favor the defense, this skew was akin to the biases held by law school students.

Disparity

Statutory disqualifications exclude 8.6% of adult Americans from jury service, but this figure is not proportionately reflected in all communities. The black and Latinx populations are the most disparately effected. In fact, one-third of the adult black male population is excluded from jury service.

In addition to statutory disqualifications and jury summons, people of color may be excluded from jury service by way of preemptory challenges. If you have been called for jury duty before, you may be familiar with preemptory challenges. This is the method attorneys use to whittle away the surplus of jurors to the jury that will be sitting for trial. In the state of Pennsylvania, attorneys often get four “strikes” which are used to eliminate a jury candidate. Attorneys do not need to provide a reason for striking a potential juror unless he or she is challenged for blatant discrimination.

Based on a survey of capital cases from the Texas Court of Criminal Appeal, Melynda Price found that black jurors are most commonly removed because of: 1) ambivalent views on the death penalty, and 2) a connection to the criminal justice system. This finding magnifies the disparity: an individual may be excluded from jury service for merely having known someone who has been convicted of a crime. Based on this logic, entire communities may be preemptively struck.

Statutory disqualifications, jury summons, and preemptory challenges all result in racially homogenous juries. This is of great concern because the color of the jury absolutely matters. First and foremost, the whitewashing of jury candidates make representative jury pools doubtful. Legal scholar, Kevin Johnson, contends that racially skewed juries “undermine the perceived impartiality of the justice system and, at the most fundamental level, the rule of law.”

A 2012 study found that all-white jury pools convict black defendants 16% more often than white defendants (88% vs. 66%).  This supports the contention that the whiter the jury, the more likely it is to convict a person of color. This is a result of implicit bias. A person may allow their implicit bias to impact his or her decision-making without ever fully realizing it. 

Cornell Law researchers observed mock juries and found that, “when white and black mock jurors met together… the effect of race tended to disappear. This result seems to indicate the best way to eliminate racial bias in verdicts is to select racially mixed juries.” 

Racially homogenous juries negatively impact defendants of all races. A  Georgia study concluded that juries with one black male were significantly less likely than juries without a black male to issue a death sentence verdict.

With racial heterogeneity comes diversity, and diverse juries tend to outperform all-white juries.  Deliberations benefit from a variety in life experiences.

Benefits of Convicted Felon Jurors

The southern California mock jury study found that convicted felons were exemplary jurors. The percent of time spoken during deliberations was higher for felon jurors that non-felon jurors. Additionally, felon jurors tended to raise more novel case facts that non-felon jurors.

Maine is currently the only state in America that imposes no restrictions on jury service based on previous convictions. In this state, officials have found that convicted felons revered the jury and jury selection process.  Convicted felons regard jury eligibility as a measure of trust and conduct themselves as jurors accordingly.

The exclusion of felons from jury service creates a cycle of racial criminality. Black men are disproportionately omitted from serving on juries because of statutory disqualifications. All-white juries are more likely to convict people of color. Without representation in jury pools, people of color are likely to continue to be convicted and, therefore, continue to be excluded from their civic obligation.

Inclusion may not only break the cycle of racial criminality, but the cycle of recidivism. Successful reentry into society reduces the possibility of ex-cons reoffending after release. Former Governor of Virginia, Terry McAuliffe, used this argument to defend his position on felon jury service: “I want you back as a full citizen of the commonwealth. I want you to have a job, I want you paying taxes and you can’t be a second-class citizen.”

If we are not willing to recognize former inmates as important and contributory members of our communities, what incentive are we offering to these men and women to follow the laws of our society after release? If our strategy is to ostracize rather than to include, our systems of punishment and rehabilitation become meaningless. We brand convicts with a metaphorical scarlet letter- we preclude them from voting, jury service, jobs, housing, and activities. If we are to believe that our criminal justice system works and that a prison or probation sentence is sufficient payment for wrongdoing, then why do we continue to punish our criminals after they have paid their debt to society?

The inclusion of convicted criminals to our jury pool may be strange or scary; however, our criminal justice system stands to benefit a great deal. Our juries will be more well-rounded, engaged, and representative of the community. It is the hope of criminal justice reformists that our idea of what a juror ought to look, sound, and act like will evolve to match the scape of society.

Your representation needs do not stop at the verdict. We may be able to help with PCRA claims, expungements, and appeals. If you or a loved one has been arrested for or convicted of a crime, please call the attorneys at Rehmeyer & Allatt for a free consultation.

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