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The Exclusion of Felons From Jury Service

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Michigan State University College of Law Digital Commons at Michigan State University College of Law Faculty Publications The Exclusion of Felons From Jury Service Brian C. Kalt Michigan State
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Michigan State University College of Law Digital Commons at Michigan State University College of Law Faculty Publications The Exclusion of Felons From Jury Service Brian C. Kalt Michigan State University College of Law, Follow this and additional works at: Part of the Constitutional Law Commons, Criminal Law Commons, Criminal Procedure Commons, and the Other Law Commons Recommended Citation Brian C. Kalt, The Exclusion of Felons From Jury Service, 53 Am. U. L. Rev. 65 ( ). This Article is brought to you for free and open access by Digital Commons at Michigan State University College of Law. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Digital Commons at Michigan State University College of Law. For more information, please contact THE EXCLUSION OF FELONS FROM JURY SERVICE BRIAN C. KALT* TABLE OF CONTENTS Introduction I. What Is Constitutionally Permissible? A. The Constitutionality of Allowing Felons to Serve on Ju ries B. The Constitutionality of Barring Felons from Jury Service The right to have ajury Rationales Cross-section a. The meaning of the cross-section requirement b. Application of the current standard Equal protection D ue process Fifteenth Amendment Bill of attainder and ex post facto C. Conclusion II. General Policy Considerations A. A H istory of Exclusion B. P robity C. Inherent Bias D. C lem ency E. A dm inistration F. R acial D isparity G. Prosecutorial Self-Dealing H. The Ideal of Individualization Associate Professor of Law, Michigan State University-DCL College of Law. Special thanks to Daniel Barnhizer, Debra Bassett, Bruce Boyden, Craig Callen, Julian Cook, Sara K. Kalt, Mae Kuykendall, Gerard Magliocca, Nick Mercuro, Frank Ravitch, Kevin Saunders, Jorge E. Souss, Glen Staszewski, and Peter Yu for their comments and suggestions, and to Carol Parker, Jane Edwards, and the rest of the MSU-DCL library staff for outstanding research assistance. HeinOnline Am. U. L. Rev 66 AMERICAN UNIVERSIY LAW REVIEW [Vol. 53:65 I. Conclusion III. The Nature of the Jury A. The Nature of Jury Service and the Nature of Citizenship B. For Society: Dem ocratic Self-Governm ent C. For Parties: Impartial, Canny, Unassailable Decision D. M akers For Jurors: Education, Democratic Engagement, and Dialogue E. Conclusion... IV. The Treatm ent of Crim inals A. Rehabilitation B. Other Goals of Penology C. Other Civil Disabilities D. Conclusion V. A Suggested Approach A. Individualized Treatm ent of Crim es B. Individualized Treatm ent of Crim inals C. Individualized Treatm ent of Trials D. W aiting for Recidivism Conclusion Appendix 1: Felon Exclusion Statutes... A. Duration of Exclusion B. Distinctions Felonies and m isdem eanors Convictions from other jurisdictions Restoration of rights Error resolution Pending charges Civil or crim inal, petit or grand... Appendix 2: The Statistics of Felon Exclusion Appendix 3: History A. English Practice B. Early Am erican Practice C. Recent Am erican Practice D. Conclusion HeinOnline Am. U. L. Rev 2003] EXCLUSION OF FELONS FROMJURY SERVICE INTRODUCTION Thirteen million people, including about thirty percent of black men, are banned for life from jury service because they are felons.' Thirty-one states and the federal government subscribe to the practice of lifetime felon exclusion, 2 but legislators have excised this considerable swath of the jury pool rather carelessly, without adequately considering the many policy reasons for giving felons a chance to serve. Perhaps more surprising is that scholars have ignored felon exclusion despite a mass of legislation and appellate litigation, and despite the glaring racial disparities. 3 On the rare occasions when felon exclusion is mentioned, commentators are oddly sanguine about it, even if they are otherwise strong advocates of felons' rights or broad jury participation. In stark contrast, the parallel issue of felon voting has drawn considerable attention,' even though it is 1. See infra Appendix See infra Appendix 1.A. 3. See, e.g., Hiroshi Fukurai et al., Where Did Black Jurors Go? A Theoretical Synthesis of Racial Disenfranchisement in the Jury System and Jury Selection, J. BLACK STUD., Dec. 1991, at 196 (discussing causes of minority under-representation on juries without mentioning felon exclusion). The only detailed treatment of felon exclusion is a legal encyclopedia article that categorizes and summarizes statutes and case law. James L. Buchwalter, Annotation, Disqualification or Exemption ofjuror for Conviction of or Prosecution for, Criminal Offense, 75 A.L.R. 57T 295 (2000). Other works briefly discuss felon exclusion. See, e.g., Walter Matthews Grant et al., Special Project: The Collateral Consequences of a Criminal Conviction, 23 VAND. L. REV. 929, , (1970); William T. Harrison, Jr., Case Comment, Jurors: Federal Felons Not Disqualified, 3 U. FLA. L. REv. 255, (1950); Richard G. Singer, Conviction: Civil Disabilities, in I ENCYCLOPEDIA OF CRIME ANDJUSTICE 243, 245 (Sanford H. Kadish ed. 1983). 4. See, e.g., George P. Fletcher, Disenfranchisement as Punishment: Reflections on the Racial Uses of Infamia, 46 UCLA L. REv. 1895, (1999) (discussing felon exclusion from jury service within the context of felon disenfranchisement); Note, The Congress, The Court and Jury Selection: A Critique of Titles I and HI of the Civil Rights Bill of 1966, 52 VA. L. REv. 1069, 1091 n.120 (1966) [hereinafter Jury Selection: A Critique] (evincing little concern for disparate impact of objective jury qualifications). This complacent approach to felon exclusion might be because felon exclusion is objective, whereas subjectivity was the enemy of equality in jury selection for many years. See id. at 1094; infra Appendix 1.C (discussing history of juror qualification). The lack of research and dialogue on felon exclusion might also reflect the fact that its effect has only recently become overwhelming. See infra Appendix See generally Roger Clegg, Who Should Vote?, 6 TEX. REv. L. & POL. 159 (2001); Nora V. Demleitner, Continuing Payment on One's Debt to Society: The German Model of Felon Disenfranchisement as an Alternative, 84 MINN. L. REv. 753 (2000) [hereinafter Demleitner, Continuing Payment]; Nora V. Demleitner, Preventing Internal Exile: The Need for Restrictions on Collateral Sentencing Consequences, 11 STAN. L. & POL'Y REv. 153 (1999) [hereinafter Demleitner, Preventing Internal Exile]; Alec C. Ewald, Civil Death The Ideological Paradox of Criminal Disenfranchisement Law in the United States, 2002 Wis. L. REv. 1045; Fletcher, supra note 4; Virginia E. Hench, The Death of Voting Rights: The Legal Disenfranchisement of Minority Voters, 48 CASE W. REs. L. REV. 727 (1998); Richard L. Lippke, The Disenfranchisement of Felons, 20 LAW & PHIL. 553 (2001); Marc Mauer, Felon Voting Disenfranchisement: A Growing Collateral Consequence of Mass Incarceration, 12 FED. SENTENCING REP. 248 (2000); Jesse Furman, Note, HeinOnline Am. U. L. Rev AMERICAN UNIVERSITY LAW REVIEW [Vol. 53:65 rarer, less racially charged, and in decline; 6 scholars have also dwelled at length on the law and policy contours of the racial composition of juries.' But felon exclusion, which sits at the intersection of these two vital issues, has remained unnoticed. Felon exclusion deserves attention not just because of its stunning magnitude, but also because of its theoretical significance. The questions of whether and when felons (principally, so-called exfelons 8 ) should be eligible to serve as jurors implicates several larger Political Illiberalism: The Paradox of Disenfranchisement and the Ambivalences of Rawlsian Justice, 106 YALE L.J (1997); Alice E. Harvey, Comment, Ex-Felon Disenfranchisement and its Influence on the Black Vote: The Need for a Second Look, 142 U. PA. L. REV (1994); Howard Itzkowitz & Lauren Oldak, Note, Restoring the Ex- Offender's Right to Vote: Background and Developments, 11 AM. CRM. L. REv. 721 (1973); Gary L. Reback, Note, Disenfranchisement of Ex-felons: A Reassessment, 25 STAN. L. REv. 845 (1973); Andrew L. Shapiro, Note, Challenging Criminal Disenfranchisement Under the Voting Rights Act: A New Strategy, 103 YALE L.J. 537 (1993); Developments in the Law-One Person, No Vote: The Laws of Felon Disenfranchisement, 115 HARV. L. REV (2002) [hereinafter One Person, No Vote]; Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and The Purity of the Ballot Box , 102 HARV. L. REV (1989) [hereinafter The Purity of the Ballot Box]. 6. One widely cited estimate suggests that 13% of black men and 3.9 million citizens overall are disenfranchised as felons. Jamie Fellner & Marc Mauer, Convicted Felons Deserve the Right to Vote, in How SHOULD PRISONS TREAT THEIR INMATES 40, 41 (Michele Wagner ed., 2001); see also infra note 588 (discussing the trend away from lifetime disenfranchisement of felons). 7. Hundreds of articles have been written on the cross-section requirement, Batson v. Kentucky, 476 U.S. 79 (1986) (holding that peremptory strikes may not be used for purposeful racial discrimination), venue issues, and numerous other disputes at the intersection of race and juries. A few articles are particularly relevant to felon exclusion, even if they do not treat the issue in detail. See, e.g., James H. Druff, The Cross-Section Requirement and Jury Impartiality, 73 CAL. L. REv. 1555, (1985) (critiquing and contrastingjury venire and jury panel selection policies in the contexts of diversity and impartiality); NancyJ. King, RacialJurymandering: Cancer or Cure? A Contemporary Review of Affirmative Action injury Selection, 68 N.Y.U. L. REv. 707, 712 (1993) (exploring reasons and remedies for minority under-representation on juries); Andrew D. Leipold, ConstitutionalizingJury Selection in Criminal Cases: A Critical Evaluation, 86 GEO. L.J. 945, (1998) (critiquing conflicting notions, in Batson and in cross-section cases, of the connection between personal views and group membership); Benno C. Schmidt, Jr., Juries, Jurisdiction, and Race Discrimination: The Lost Promise of Strauder v. West Virginia, 61 TEX. L. REv. 1401, (1983) (providing an excellent historical account of racial discrimination on juries between the Civil War and New Deal); Barbara D. Underwood, Ending Race Discrimination in Jury Selection: Whose Right Is It Anyway?, 92 COLUM. L. REv. 725, 727 (1992) (arguing in favor of treating racial discrimination as a violation of jurors', rather than litigants', rights). 8. The term felon is occasionally reserved for those currently under sentence of law. Those who have already served their time are designated as ex-felons. The more accurate definition of the word felon, however, is [o]ne who has committed [a] felony, 5 OXFORD ENGLISH DICTIONARY 821 (2d ed. 1989) [hereinafter OED], regardless of whether he has served his sentence. This Article uses the term felon in that sense-barring clemency, felon is a lifelong label. Given that jury service by currently incarcerated felons is not greatly contested, all discussion of felons in this Article refers to so-called ex-felons. For the sake of simplicity and because the overwhelming majority of felons are male, this Article will use male pronouns when referring to felons. HeinOnline Am. U. L. Rev 2003] EXCLUSION OF FELONS FROM JURY SERVICE issues. First, felon exclusion forces society to confront its expectations of what a jury is supposed to look like and achieve, and what our society's treatment of criminals is supposed to look like and achieve. In both cases, felon exclusion reveals ambivalence and contradiction. Second, felon exclusion probably passes the constitutional cross-section requirement for juries, but it exposes the doctrine's flaws and ambiguities. This Article argues that excluding all felons from all juries per se is unwise, and that at least some felons deserve the same individualized consideration in voir dire as other would-be jurors. This Article also aims to open an appropriately vigorous debate about felon exclusion. Part I surveys and proposes constitutional arguments for and against felon exclusion, and concludes that it is constitutional either to exclude felons from juries, as do most jurisdictions, or to include them, as do others. While this result is fairly clear from current doctrine, this analysis exposes weaknesses in the law. As a result of both exclusion and inclusion being legal, the Article next turns to policy arguments for and against felon exclusion. Part II examines general considerations. The principal justifications for felon exclusion-that felons are inherently biased against the government and that they threaten the probity of the jury-may be sufficient to pass constitutional muster, but they are unsound as a matter of policy. 9 Other policy considerations, such as the long history of felon exclusion, the availability of clemency, and administrative costs, also do not suffice to justify denying felons the same individualized consideration that other jurors receive. 0 Part III turns to the more specific policy context of jury service in general, and concludes that felon exclusion clashes with the democratic, functional, and educative purposes of the jury system. Part IV engages in a similar analysis regarding the societal treatment of criminals, and finds that felon exclusion does not advance penological goals, and that it suffers from comparison to other civil disabilities imposed on felons. Part V concludes the analytical discussion with a recommendation that felon exclusion should be carefully considered and should not be based on inflexible generalizations about crimes, criminals, and trials. Instead, some felons should have a chance to contend as individuals for a seat on a jury in some cases, under the same constraints as other citizens. 9. See infra Part II.B. 10. See infra Parts II.C, D, E. HeinOnline Am. U. L. Rev AMERICAN UNIVERSITY LAW REVIEW [Vol. 53:65 Finally, to support the analysis in Parts I-V, and because felon exclusion has never received a full treatment in the literature, this Article concludes with three appendices. Appendix 1 catalogs current American law on felon exclusion from juries, Appendix 2 analyzes its stunning magnitude, and Appendix 3 details the history of the doctrine. I. WHAT IS CONSTITUTIONALLY PERMISSIBLE? As will be discussed in Appendix 3, felon exclusion (and its close relatives) has been part of Anglo-American law for centuries. The details and application of felon exclusion have been litigated extensively for much of that time. ' 2 - Challenges to the practice itselfthe subject of this Part-have a more recent pedigree, and have been uniformly unsuccessful. 13 The case law reflects a consensus that neither mandatory exclusion nor mandatory inclusion is required by the federal constitution. The courts have not considered all of the possible arguments on the subject, however, and many courts have been cursory with those arguments they have considered. This Part will summarize and supplement the case law on felon jurors by surveying the field of possible legal arguments and concluding that while some arguments are more promising than others, none is a clear winner for felons. A. The Constitutionality of Allowing Felons to Serve on Juries Whether it is unconstitutional to include felons on juries is an issue that has not been litigated as often as the issue of exclusion. Courts considering the question have treated a jury that includes a felon as legitimate, or at least not inherently illegitimate. Specifically, some courts have held that the Sixth Amendment does not provide a right to have a felon-free jury in criminal cases, and that a state law 11. The discussion will touch on the extent to which criminals other than convicted felons, such as misdemeanants and those with pending charges, are excluded. See infraappendix 1.B.1, See Buchwalter, supra note 3, 7-34 (describing modern cases on felon exclusion); L.S. Tellier, Annotation, Intelligence, Character, Religious, or Loyalty Tests of Qualifications of Juror, 126 A.L.R. 506, (1940) (surveying case law dating back to the 1860s). 13. See BtIchwalter, supra note 3, 3b-6 (summarizing constitutional challenges to felon exclusion). 14. See, e.g., Coleman v. Calderon, 150 F.3d 1105, 1117 (9th Cir.), rev'd on other grounds, 525 U.S. 141 (1998) (holding that the Sixth Amendment does not prohibit ex-felons from jury duty); United States v. Humphreys, 982 F.2d 254, (8th Cir. 1993) ( The Sixth Amendment right to an impartial jury does not require an absolute bar on felon-jurors. ) (quoting United States v. Boney, 977 F.2d 624, 633 (D.C. Cir. 1992)). HeinOnline Am. U. L. Rev 20031 EXCLUSION OF FELONS FROMJURY SERVICE excluding felons from juries does not create a liberty interest in a felon-free jury. ' The Sixth Amendment argument is that felons are inherently biased, which means that allowing them on a criminal jury denies a criminal defendant his right to an impartial jury. 1 6 Courts' rejection of that argument sits uneasily alongside other courts' reliance on the inherent bias argument in cases affirming felon exclusion; as argued in detail in Part II.C, however, the former holding is more persuasive than the latter. Less directly, but more commonly, courts have approved verdicts where, despite a felon exclusion law, a felon finds his way onto a jury. As detailed in Appendix I.B.4, states are tolerant of such situations, typically vacating verdicts only where a felon juror has intentionally misled the court about his criminal record, or in the rare case where actual prejudice can be shown. Finally, twenty jurisdictions permit some felons to serve on juries, 7 and none have ever considered, let alone sustained, a direct legal challenge to the practice. B. The Constitutionality of Barring Felons from Juiy Service The more common issue in litigation is whether automatically excluding felons from juries is unconstitutional. As the Supreme Court has said, jurisdictions are free to confine the [ury] selection.., to those possessing good intelligence, sound judgment, and fair character.' ' 8 This Part will survey-and for the most part reject-all of the legal arguments against felon exclusion that have been presented, as well as some plausible ones that have not been raised. In at least one case, however, this Part will suggest that the constitutionality of felon exclusion speaks more to deficiencies in the legal standard than to the appropriateness of felon exclusion. 1. The right to have a jury Considering whose rights felon exclusion implicates-felons, litigants, or both-is an important preliminary matter. The answer 15. Coleman, 150 F.3d at This issue is explored in detail in Boney, 977 F.2d at 633, which is relied upon by Humphreys, 982 F.2d at 261, and Coleman, 150 F.3d at See infra notes 377 (Alaska), 378 (Arizona), 381 (Colorado), 382 (Connecticut), 384 (District of Columbia), 388 (Idaho), 389 (Illinois), 390 (Indiana), 391 (Iowa), 392 (Kansas), 395 (Maine), 397 (Massachusetts), 399 (Minnesota), 409 (North Carolina), 410 (North Dakota), 413 (Oregon), 415 (Rhode Island), 417 (South Dakota), 423 (Washington), 425 (Wisconsin). 18. Carter v. Jury Comm'n, 396 U.S. 320, 332 (1970) (confining rejection of a state jury statute to its discriminatory application). HeinOnline Am. U. L. Rev AMERICAN UNIVERSITY LAW REVIEW [Vol. 53:65 varies according to which of the legal theories discussed below is adopted. Virtually all of the litigation regarding the composition of juries has been brought by parties to lawsuits, but it is the interests of the excluded felons that are most directly implicated. 19 Jurors rarely choose to litigate exclusion, because their rights are limited and violation of those rights is hard to detect. A juror may never be summoned for jury service, may be dismissed for cause, or may be peremptorily struck, without any necessary violation of his or her rights. As a result, it is hard for an improp
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