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Rigging the jury: How each state reduces jury diversity by excluding people with criminal records

by Ginger Jackson-Gleich   Tweet this
February 18, 2021

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.¹ 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.² These laws bar more than twenty 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.

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). For more detail, see our appendix table.

Jury exclusion laws hinder jury diversity

As we have chronicled extensively, 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% (nearly 7 million people) were Black, despite the fact that Black people comprise 13% of the U.S. population. Although data on the number of Latinx people with felony convictions is difficult to find (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. 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% of Black adults—and 63% of Black men—were excluded from juries because of criminal convictions. In New York State, approximately 33% of Black men are excluded from the jury pool because of the state’s felony disqualification law. Nationwide, approximately one-third of Black men have a felony conviction; 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 “the voice of the community,” 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.” 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.” 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.” 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 (a level of detail not reflected in the chart below).³

Table 1. This table (which focuses on trial or "petit" juries; "grand" juries, which examine the validity of accusations before trial, often have different rules) was compiled through our own legal analysis and interviews with court staff in numerous states, but it also benefited from reference to several great resources, including the Restoration of Rights Project's 50-State Comparison, the National Inventory of Collateral Consequences of Conviction, and this 2004 article by Professor Brian Kalt. To be sure, many states have rights restoration processes (e.g., executive pardons, expungement) that can restore rights to individuals who would otherwise be barred, but such relief is generally rare and therefore not addressed here. For other nuances, exceptions, and the relevant statutes for each state, see our appendix table.

Current incarceration	Current incarceration & some past felony convictions	Current incarceration & all past felony convictions	Current incarceration, all past felony convictions, & some past misdemeanor convictions
No legal exclusion, but incarcerated jurors excused Maine No exclusion after incarceration ends Indiana North Dakota No exclusion after incarceration ends (although attorneys may request dismissal by the court) Colorado Illinois Iowa	Forever Alabama	Forever Arizona Arkansas Delaware Florida Georgia Hawaii Kentucky Louisiana Michigan Mississippi Missouri Nebraska New Hampshire New York Oklahoma Tennessee Utah Vermont Virginia West Virginia Wyoming For a fixed period of time Connecticut District of Columbia Kansas Massachusetts Nevada Until sentence completed (including parole and probation) Alaska California (certain offenses lead to permanent exclusion) Idaho Minnesota Montana New Mexico North Carolina Ohio Rhode Island South Dakota Washington Wisconsin	Forever Maryland New Jersey Pennsylvania South Carolina Texas For a fixed period of time Oregon
Pending criminal charges also result in exclusion Connecticut, Kentucky, Louisiana, and Massachusetts also exclude anyone currently facing felony charges. Florida, Maryland, Texas, and D.C. also exclude anyone currently facing felony charges or facing (some or all) misdemeanor charges.

 

Recommendations for reform

Reduce the scope of exclusion laws. The good news is that change is possible. California recently passed legislation—championed by public defenders—largely ending the permanent exclusion of people with felony convictions. 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. 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. 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. (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; we also recommend Professor Anna Roberts' article Casual Ostracism for anyone looking for a compelling orientation to the issue of jury exclusion laws.)

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. 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. To avoid this problem, states can draw potential jurors from additional sources, such as state tax records and DMV records. Some jurisdictions have begun to conduct more frequent address checks to decrease rates of undeliverable jury notices, or to require that a replacement summons be sent to the same zip code from which an undeliverable notice was returned. And Louisiana recently increased jury compensation, a small change that the American Bar Association notes makes it possible for “a broader segment of the population to serve.”

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.

Acknowledgments

Ginger and the Prison Policy Initiative thank the numerous legal experts who provided insight during the preparation of this report, particularly Jennifer Sellitti at the New Jersey State Office of the Public Defender, Margaret Love at the Collateral Consequences Resource Center, and numerous staff at the state courts of Mississippi, New Jersey, North Dakota, South Carolina, and South Dakota. The author also thanks Katie Rose Quandt, Peter Wagner, Emily Widra, Wanda Bertram, Wendy Sawyer, and Tiana Herring for their editorial guidance and technical support.

 

About the Prison Policy Initiative

The non-profit, non-partisan Prison Policy Initiative was founded in 2001 to expose the broader harm of mass criminalization and spark advocacy campaigns to create a more just society. Alongside reports like this that help the public engage in criminal justice reform, the organization leads the nation's fight to keep the prison system from exerting undue influence on the political process (known as prison gerrymandering) and plays a leading role in protecting the families of incarcerated people from the predatory prison and jail telephone industry and the video visitation industry.

 

About the Author

Ginger Jackson-Gleich is Policy Counsel at the Prison Policy Initiative. She previously wrote about the ways that mass incarceration undermines democracy in her major report Eligible but Excluded: A guide to removing the barriers to jail voting. Ginger's focus at the Prison Policy Initiative is on our campaign to end prison gerrymandering. She was involved in criminal justice reform for 15 years prior to joining the Prison Policy Initiative.

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