A move is afoot to extend the privilege of sitting on a jury to released felons and non-citizen long-term residents. According to a recent report, supported by Connecticut Chief Justice Richard Robinson, making this change would increase Black and Latinx representation. This is a laudatory goal. But it undermines the very foundations of jury participation as a key aspect of citizenship.
Juries traditionally were composed of citizens who demonstrated upstanding character—“twelve good men and true” is the old common law phrase. Most states and federal courts bar those convicted of a felony from serving on a jury. From the time of our country’s founding, citizenship has been at the core of jury participation. Many of our founders considered jury membership even more important than voting as a badge of citizenship. Do we really want to uncouple the profound connection between citizenship and jury participation now?
No doubt there is a problem with African Americans being underrepresented in jury pools. Since 1946 the Supreme Court has required that jury pools reflect a fair cross section of the population. Creating representational juries should and must be a policy goal. But there are other ways to accomplish it. The report on jury selection includes many excellent proposals for outreach to underrepresented communities.
The report’s proposal to allow long-term residents who are not citizens to serve is the more troubling of the two schemes. It was intended to remove a “constitutionally permissible” exclusion with “a disproportionate effect” on minorities. Yet the jury functions as a mini-democracy. It has a role as a Constitutional actor that determines the power of law. An illustration of this is nullification –the process by which a jury can acquit a criminal defendant even when guilty under the facts if the jurors believe the law itself to be unjust.
As Supreme Court Justice Anthony Kennedy wrote, “with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process.” Juries add the leaven of community norms. A jury’s composition as a body of citizens sets a standard for a certain amount of shared civic knowledge. It is a particular feature of democracy where trust is an essential feature of self-governance.
Although long-term residents may fairly evaluate facts, they have not yet entered the polity as citizens. What does citizenship as a milestone mean if a core civic duty is granted those who have not yet passed this bar? The issue of jury membership for those convicted of a crime is more difficult. As has been pointed out, a higher incarceration rate for African American males than that of the general population impacts upon the jury pool. Moreover, there has been a significant history of exclusion that demands rectification. Yet hard-won African American citizenship rights have been intimately bound to the privileged status of the jury. In the 1879 case Strauder v. West Virginia (1879), the Supreme Court found rejecting black jurors to be a violation of the Fourteenth Amendment.
Jury selection can take into account the trustworthiness of the jurors. When that was accomplished with broad discretionary criteria —such as integrity, fair character, and sound judgment—it was used during the Jim Crow Era and beyond as a means to exclude African Americans. Barring convicted felons instead served as a bright-line rule to evaluate character. By definition, committing a serious crime might be considered a deviation from the very community norms a jury is designed to uphold.
No doubt someone who has been incarcerated can become a productive citizen. Reintegration should be the goal of every criminal justice system. But jury service should be a final stage in the process —not the beginning. Restoring the electoral franchise might be a first step before extending to former offenders the jury privilege. Given the significant possibility of recidivism, it makes sense to delay former felon jury service for a limited number of years. Defense attorneys have described how black defendants suspiciously view jurors with a very different racial identity than their own. Yet jury bias takes many different forms. Legitimate issues of credibility might be raised by the broader public if a revolving door was to be fashioned that allows those with prior convictions to leave the prison for the courthouse jury box with little intervening time.
California has extended jury participation to those convicted of felonies. New York has rejected such legislation. Even California has been troubled by the dangers posed to the legitimacy of the jury system by permitting all former felons to be part of the jury pool—and bars sex offenders. But why are convicted sex offenders any more disconcerting as jurors than those who have committed murder?
At a time when we desperately need to reinvigorate citizen democracy, the legitimacy of the jury as a bulwark of civil society should be bolstered, not diminished. In a rush to address a genuine problem of ensuring a fair jury pool that includes underrepresented minorities, we should not proceed with a proposal that disengages jury service from what ultimately makes it so very important—its grounding in citizen democracy.
Steven Wilf is a Professor at the University of Connecticut School of Law.