Calif. May Help Move Needle On Jury Duty For Ex-Cons

By Kevin Penton | October 20, 2019, 8:02 PM EDT

Advocates hope a California law recently signed by Gov. Gavin Newsom that allows felons to serve on juries adds momentum to similar measures in other states. (Getty)


A new California law allowing those with felony convictions to serve on juries could serve as an inspiration for other states that are considering similar measures, several criminal justice reform advocates say.

When the law goes into effect in January, the Golden State will become the 24th that allows felons to sit in a jury box. The law, signed by Gov. Gavin Newsom on Oct. 8, only covers those who have completed their sentences. 

Proponents of allowing felons to serve on juries argue the change is long overdue and should be viewed as another piece of a broad push for criminal justice reform in the United States after the "tough on crime" movement of the 1980s and 1990s, which disproportionately impacted minorities.

A 2017 study published in Demography estimated that in 2010, approximately a third of black men in the United States had a felony conviction, up from 13% in 1980. Comparably, 13% of all men had a felony conviction in 2010, up from 5% in 1980, according to the study.

Felons bring a unique life perspective that is often missing from the jury box — they have a personal understanding of how the nation's criminal justice system works, and may even prove to be more conservative than their nonfelon peers, said William C. Snowden, New Orleans director of the Vera Institute and founder of the Juror Project.

"The signal that this sends is that someone with a felony conviction is not just someone with a felony conviction," Snowden said. "Too often, those with felony convictions are branded as people who are not worthy."

Still, some are raising concerns about what the change may ultimately mean for public safety.

"Do you want the fox guarding the proverbial henhouse?" said Michele Hanisee, president of the Association of Deputy District Attorneys for Los Angeles. "Do you want people who have chosen not to follow the law to be the ultimate arbiters of whether or not someone has followed the law?"

The California law, known as Senate Bill 310, will continue to bar from juries those who are currently in prison, registered felony sex offenders and those who are on parole or probation, according to its language.

That doesn't go far enough for James Binnall, an attorney and assistant professor at California State University in Long Beach. Binnall, a leading advocate for rolling back restrictions on felons serving on juries who is writing a book on the topic, said California should have followed the model of Maine — the only state that does not place any such restrictions on who can serve on a jury.

"Purely from a research perspective, those were unnecessary," Binnall said. "There was no empirical argument for them."

Aside from Maine, the other states that allow felons to serve on juries do so on a conditional basis.

Like California, many require felons to complete any probation or parole related to their sentences, while others allow them to sit for civil cases but not criminal trials. At least three states — Illinois, Iowa and Massachusetts — allow challenges to be made against potential jurors for the cause that they are felons, according to the statutes.

Louisiana legislators in May rejected a bill that would have allowed felons to serve on juries, while Senate lawmakers in New York voted in May to approve a similar measure. That bill shifted to the state Assembly, where it was referred to a judiciary committee.

"[The California law] certainly helps; it doesn't make it as foreign to conceive that this type of legislation is possible," Snowden said.

Snowden did question whether felons will be more prone to being struck from serving on a jury because of that aspect of their background. Batson challenges — which draw their name from the 1986 U.S. Supreme Court case of Batson v. Kentucky and are used by counsel to oppose juror strikes on constitutional grounds — typically extend only to race and sex, he said.

In the wake of the California law, prosecutors in the state will now have to use one of their so-called peremptory challenges to strike a felon who they suspect may exhibit bias against law enforcement or toward lawlessness, Hanisee said.

But giving felons a chance to participate in the jury process will help counteract a different kind of bias, specifically the lingering impact of Jim Crow-era efforts in some states to disenfranchise African Americans and other minorities, said Brian Kalt, a professor at Michigan State University College of Law who has examined the topic.

As other states over the years have rolled back lifetime voting bans for felons, they have not done so for jury service, Kalt said. He hopes it is an oversight that states will increasingly look to correct.

"It's good to see that California is taking this seriously ... and making a change that I hope other states will look at making too, just as they have for voting," Kalt said.

--Editing by Philip Shea and Katherine Rautenberg.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

Correction: An earlier version of this article misstated the Juror Project's affiliation. The error has been corrected.

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