The Exclusion of Felons from Jury Service

Abstract

The lifetime exclusion of felons from jury service is the majority rule in the U.S., used in thirty one states and in federal courts. The result is that over 6% of the adult population is excluded, including about 30% of black men. The parallel issue of felon disenfranchisement has drawn considerable scholarly attention, despite its lower, declining, and less racially charged numbers. The racial composition of juries has been widely discussed in the literature as well. By contrast, felon jury service has been almost entirely ignored, despite a mass of legislation and appellate litigation, and despite glaring racial disparities. One can hardly argue that the biggest problem with the American legal system is that our juries do not have enough felons on them. Nevertheless, the question of whether and when felons (principally "ex-felons") should serve as jurors involves several larger issues. This article surveys the current law of felon exclusion and surveys its history. It then surveys and proposes constitutional arguments for and against felon exclusion, and concludes that it is constitutional either to exclude felons from juries, as most jurisdictions do, or to include them, as others do. While this result is fairly clear from current doctrine, it exposes flaws and ambiguities in that doctrine. It also undermines the principal justifications for felon exclusion (protecting the probity of the jury, and eliminating inherently biased jurors). Because both exclusion and inclusion are legal, the remainder of the article considers policy arguments for and against felon exclusion: first, the nature of the jury, and whether felon exclusion is compatible with it; next, a similar analysis regarding the treatment of felons; and finally other, general policy arguments. The discussion concludes with a recommendation that while some felon exclusion may be appropriate, it should be carefully considered and should not be based on inflexible generalizations about crimes, criminals, and trials. Instead, felons who are worthy should have a chance to contend as individuals for a seat on a jury, under the same constraints as everyone else.