In courthouses throughout the country, defendants are routinely denied the promise of a “jury of their peers” thanks to a lack of racial diversity in jury boxes. One major reason for this lack of diversity is the constellation of laws prohibiting people convicted (or sometimes simply accused) of crimes from serving on juries. These laws bar more than 20 million people from jury service, reduce jury diversity by disproportionately excluding Black and Latinx people, and actually cause juries to deliberate less effectively. Such exclusionary practices exist in every state and often ban people from jury service forever.
May 02, 2022 Feature
Rigging the Jury: How Each State Reduces Jury Diversity by Excluding People with Criminal Records
By Ginger Jackson-Gleich
The state laws that bar people with criminal convictions (or pending criminal charges) from serving on juries are complex. In Arizona, for example, exclusion becomes permanent upon conviction of a second felony; in Nevada, the duration of exclusion is different for civil and criminal jury service; and in Iowa, automatic exclusion ends when incarceration ends, but attorneys may ask judges to dismiss potential jurors because of prior felony convictions (no matter how old the conviction).
Jury Exclusion Laws Hinder Jury Diversity
As we have chronicled extensively,1 the criminal justice system disproportionately targets Black people and Latinx people—so when states bar people with criminal convictions from jury service, they disproportionately exclude individuals from these groups. Of the approximately 19 million Americans with felony convictions in 2010, an estimated 36 percent (nearly 7 million people) were Black,2 despite the fact that Black people comprise 13 percent of the U.S. population.3 Although data on the number of Latinx people with felony convictions is difficult to find4 (because information about Latinx heritage has not always been collected or reported accurately within the criminal justice system), we do know that Hispanic people are more likely to be incarcerated than non-Hispanic whites and are overrepresented at numerous stages of the criminal justice process.5 It stands to reason, then, that Latinx populations are also disproportionately likely to have felony convictions.
As a result, jury exclusion statutes contribute to a lack of jury diversity across the country. A 2011 study found that in one county in Georgia, 34 percent of Black adults—and 63 percent of Black men—were excluded from juries because of criminal convictions.6 In New York State, approximately 33 percent of Black men are excluded from the jury pool because of the state’s felony disqualification law.7 Nationwide, approximately one-third of Black men have a felony conviction;8 thus, in most places, many Black jurors (and many Black male jurors in particular) are barred by exclusion statutes long before any prosecutor can strike them in the courtroom.
Jury Diversity Makes Juries More Effective
Not only does jury diversity underpin the constitutional guarantee of a fair trial and ensure that juries represent “the voice of the community,”9 but research shows that diverse juries actually do a better job. A 2004 study found that diverse groups “deliberated longer and considered a wider range of information than did homogeneous groups.”10 In fact, simply being part of a diverse group seems to make people better jurors; for example, when white people were members of racially mixed juries, they “raised more case facts, made fewer factual errors, and were more amenable to discussion of race-related issues.”11 Another study found that people on racially mixed juries “are more likely to respect different racial perspectives and to confront their own prejudice and stereotypes when such beliefs are recognized and addressed during deliberations.”12 In addition, the verdicts that diverse juries render are more likely to be viewed as legitimate by the public.
In Some States, Even Misdemeanors Can Disqualify People from Jury Service
While the laws barring people with criminal convictions from jury service are often referred to as “felony exclusion laws,” in some states (and in federal courts), people with misdemeanor convictions can also be subject to exclusion. Texas, for example, specifically excludes from juries people who have been convicted of misdemeanor theft. Maryland, Pennsylvania, and South Carolina exclude people who have been convicted of any crime punishable by more than one year of incarceration, which includes certain misdemeanors in those states. Oregon excludes people convicted of certain misdemeanors for five years post-conviction. And several states and Washington, D.C., exclude people currently facing misdemeanor charges. This is in addition to states like Montana, Tennessee, and West Virginia that disqualify people only for those rare misdemeanors related to violating civic or public duties.
Recommendations for Reform
Reduce the Scope of Exclusion Laws
The good news is that change is possible. California recently passed legislation—championed by public defenders13—largely ending the permanent exclusion of people with felony convictions.14 In most contexts, Californians may now serve on juries upon completion of felony sentences, once probation and parole have ended. Prior to the change, the state’s felony exclusion law prohibited 30 percent of California’s Black male residents from serving on juries.15 While California’s jury exclusion law is still more punitive than the laws in many states, this recent change shows that reform is possible. Other states can and should follow suit.
At the same time, as Professor James Binnall insightfully observes, once reform legislation is passed, it remains critically important to ensure full implementation of the law by restoring formerly excluded people to jury rolls.16 This process has met with mixed success in California, where months after the law went into effect, 22 of 58 counties were still providing incorrect or misleading information about eligibility to the public.17 (Professor Binnall’s new book on jury exclusion offers detailed analysis of the impact of these exclusionary statutes, as well as a comprehensive takedown of the justifications usually offered in their defense;18 we also recommend Professor Anna Roberts’s article Casual Ostracism for anyone looking for a compelling orientation to the issue of jury exclusion laws.19)
Decriminalize and Decarcerate
Of course, a more sweeping way to address jury exclusion laws would be to reduce the number of people with criminal convictions generally. This approach would entail criminalizing fewer behaviors, incarcerating fewer people, and penalizing criminal activity less harshly. Permitting 20 million people with felony convictions to serve on juries would be a powerful step toward a fairer and more effective legal system, but a far more holistic approach would be reducing the number of people who have criminal convictions in the first place.
Address Other Obstacles to Jury Diversity
Thanks to the efforts of advocates, many states are also taking steps to address other early-stage roadblocks to jury diversity.20 For example, states that draw jury pools exclusively from voting rolls inherently exclude anyone whose felony conviction prevents them from voting, even if the state technically allows them to serve on juries.21 To avoid this problem, states can draw potential jurors from additional sources, such as state tax records and DMV records.22 Some jurisdictions have begun to conduct more frequent address checks to decrease rates of undeliverable jury notices23 or to require that a replacement summons be sent to the same zip code from which an undeliverable notice was returned.24 And Louisiana recently increased jury compensation,25 a small change that the American Bar Association notes makes it possible for “a broader segment of the population to serve.”26
No matter how it’s done, reforming the nation’s many jury exclusions laws (and the many other barriers to jury diversity) will be a long, steep road, and the challenges will vary greatly from state to state. However, successful reform will bring millions of Americans back into the jury box and help to truly realize the promise of a fair trial by jury.
How Do States Exclude People with Criminal Charges and/or Convictions from Jury Service?
The table on page 31 indicates which jurisdictions exclude people from jury service on the basis of criminal charges or convictions, how long such exclusion lasts, and which statutes set forth the law. The explanatory notes seek to clarify more complex issues that were not addressed in the previous table. Here, too, the focus of this table is trial (or “petit”) juries, as opposed to grand juries.
Many states have rights restoration procedures (such as executive pardons, expungement, etc.) that can restore rights to individuals who would otherwise be barred from jury service; relief via such processes is generally rare and therefore mostly not included here. We also note that exclusion from jury service is often a penalty for crimes specifically related to juror misconduct or abuse of public office; however, we have generally not delved into that level of complexity here, particularly because such crimes are rare.
As stated previously, in addition to conducting our own legal analysis and speaking with court staff in numerous states, we consulted several great resources during the research stage of this project. In particular, we recommend the Restoration of Rights Project’s 50-State Comparison,27 the National Inventory of Collateral Consequences of Conviction,28 and the 2004 article by Professor Brian Kalt.29 Professor Kalt’s piece discusses other state-level specifics, such as whether convictions from other jurisdictions lead to exclusion, how rights restoration processes work, how errors related to criminal records are resolved, and distinctions between rules for civil/criminal jury service or petit/grand juries. State rules also vary in whether restitution payments must be completed before rights can be restored.
As always, we welcome your input if you have corrections to any of the information presented.
Updates
Since this report was prepared in February 2021, states have continued to improve their laws, including:
- Florida: In March 2021, Florida changed its executive clemency rules, such that a person with a past felony conviction, other than a conviction for murder or a sexual offense, regains their right to serve on a jury after completing the terms of their sentence, including the payment of legal financial obligations.
- Connecticut: In June 2021, Connecticut enacted a law lowering the years of jury exclusion post–felony conviction from seven to three.
- Louisiana: In June 2021, Louisiana passed a law ending the state’s lifetime jury service ban on people with felony convictions and restoring the right to serve on a jury for people who have been free from incarceration and off of probation and parole for five years.
For a more regularly updated guide to jury exclusion rules, please see the excellent resource compiled by the Collateral Consequences Resource Center.
This article was originally published by the Prison Policy Initiative in February 2021, during which time Ginger Jackson-Gleich was policy counsel.
Endnotes
1. Racial Justice, Prison Pol’y Initiative, https://www.prisonpolicy.org/racialjustice.html.
2. S.K.S. Shannon et al., The Growth, Scope, and Spatial Distribution of People with Felony Records in the United States, 1948–2010, 58 Demography 1795, 1808 tbl.2 (2017).
3. Quick Facts (2010), U.S. Census Bureau, https://www.census.gov/quickfacts/fact/table/US/POP010210.
4. Shannon et al., supra note 2, at 1814.
5. Wendy Sawyer, Visualizing the Racial Disparities in Mass Incarceration, Prison Pol’y Initiative (July 27, 2020), https://www.prisonpolicy.org/blog/2020/07/27/disparities.
6. Darren Wheelock, A Jury of One’s “Peers”: The Racial Impact of Felon Jury Exclusion in Georgia, 32 Just. Sys. J. 335, 347 (2011), https://www.ncsc.org/__data/assets/pdf_file/0029/15878/jury-of-ones-peers.pdf.
7. Paula Z. Segal, A More Inclusive Democracy: Challenging Felon Jury Exclusion in New York, 13 N.Y. City L. Rev. 352 (2010), https://academicworks.cuny.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1276&context=clr.
8. One-third of Black Men Have Felony Convictions, Race & Just. News (Oct. 10, 2017), https://www.sentencingproject.org/news/5593.
9. Brendon Woods, Open Forum: A Jury of Your Peers? Not for Black Men in California, S.F. Chron. (July 24, 2019), https://www.sfchronicle.com/opinion/openforum/article/Open-Forum-A-jury-of-your-peers-Not-for-black-14118151.php.
10. Samuel R. Sommers, On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations, 90 J. Personality & Soc. Psych. 597, 606 (2006), https://www.apa.org/pubs/journals/releases/psp-904597.pdf.
11. Id.
12. Deborah Ramirez, Affirmative Jury Selection: A Proposal to Advance Both the Deliberative Ideal and Jury Diversity, 1998 Univ. of Chi. Legal F. 161, 164, https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1250&=&context=uclf.
13. Woods, supra note 9.
14. S.B. 310, ch. 591 (Cal. 2019), https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB310.
15. Michael Barba, California to Allow People with Felony Convictions on Juries Beginning 2020, S.F. Examiner (Dec. 29, 2019), https://www.sfexaminer.com/news/california-to-allow-people-with-felony-convictions-on-juries-beginning-2020.
16. James M. Binnall & Lauren M. Davis, Californians with a Felony Conviction Are Now Eligible for Jury Service: How Would They Know?, 32 Stan. L. & Pol’y Rev. Online (Aug. 27, 2020), https://www-cdn.law.stanford.edu/wp-content/uploads/2020/08/32-Stan.-L.-Poly.-Rev.-Online-1-1.pdf.
17. Id.
18. James M. Binnall, Twenty Million Angry Men: The Case for Including Convicted Felons in Our Jury System (2021).
19. Anna Roberts, Casual Ostracism: Jury Exclusion on the Basis of Criminal Convictions, 98 Minn. L. Rev. 592 (2013), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2234257.
20. The Juror Project, https://www.thejurorproject.org.
21. Christopher Uggen et al., The Sentencing Project, Locked Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction (Oct. 2020), https://www.sentencingproject.org/wp-content/uploads/2020/10/Locked-Out-2020.pdf.
22. New California Law Aims to Diversify Juries, Adds Tax Filers to Pool of Potential Jurors, KPIX5 (Sept. 29, 2020), https://sanfrancisco.cbslocal.com/2020/09/29/sb592-new-california-law-diversify-juries-tax-filers-list.
23. Courts Seek to Increase Jury Diversity, U.S. Courts (May 9, 2019), https://www.uscourts.gov/news/2019/05/09/courts-seek-increase-jury-diversity.
24. U.S. Dist. Ct. for the Dist. of Mass., Plan for Random Selection of Jurors at 4 (eff. Mar. 1, 2007), https://www.mad.uscourts.gov/general/pdf/a2007/RevisedJuryPlan.pdf.
25. Mark Ballard, 25 Laws Affecting Louisiana Insurance, Cancer Treatment, More Begin Today; Here’s What to Know, The Advocate (Dec. 31, 2020), https://www.theadvocate.com/baton_rouge/news/politics/legislature/article_53484a62-4b9d-11eb-8283-079dab5c15e1.html.
26. Ashish S. Joshi & Christina T. Kline, Lack of Jury Diversity: A National Problem with Individual Consequences, Am. Bar Ass’n: Diversity & Inclusion (Sept. 1, 2015), https://www.americanbar.org/groups/litigation/committees/diversity-inclusion/articles/2015/lack-of-jury-diversity-national-problem-individual-consequences.
27. 50-State Comparison: Loss & Restoration of Civil/Firearms Rights, Restoration of Rts. Project (updated Dec. 2021), https://ccresourcecenter.org/state-restoration-profiles/chart-1-loss-and-restoration-of-civil-rights-and-firearms-privileges.
28. Nat’l Inventory of Collateral Consequences of Conviction, https://niccc.nationalreentryresourcecenter.org.
29. Brian C. Kalt, The Exclusion of Felons from Jury Service, 53 Am. U. L. Rev. 65, 150 (2003, updated 2004), https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1090&context=aulr.