Why Ex-Felons Should Serve on Juries – and Why New York Should Lead the Way
2.18.2022
Should former felons be allowed to serve on juries in New York?
This idea is far from radical and follows current trends. The civic rights of former felons have been restored in other areas. Some years ago, New Yorkers paroled after incarceration for a felony could only have their right to vote restored on an individual basis. This required a partial executive pardon. On May 4, 2021, then-New York Governor Andrew Cuomo signed legislation to end felony disenfranchisement. This automatically restored the right of felons on parole to vote in all elections.[1]
New York is a frontrunner in such reform, and felons in many states do not have such rights. Notably, the recently proposed federal Freedom to Vote Act would likewise restore federal voting rights nationwide to people with felony convictions after they have been released from prison. New York could continue to lead reforms by also restoring jury service rights to former felons. However, at present, New York Judiciary Law § 510(3) specifically provides that, “In order to qualify as being a juror . . . a person must not have been convicted of a felony.” This exclusion is of unlimited duration.
Rights of Minorities
This issue not only affects the rights of felons but also impacts the justice system itself. As Justice Powell, writing in Batson v. Kentucky,[2] declared, “The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community.”[3] It does so by biasing the jury pool by eliminating a larger percentage of Black as compared to white persons. This disparity in numbers can be attributed in large part to law enforcement’s record of targeting and arresting Blacks in far higher numbers than whites who commit similar crimes – for example, in street sales of crack vs. suburban cocaine parties.
Biased Juror Pool
Recent articles have criticized the overrepresentation of Blacks among ex-felons throughout the United States as resulting in skewed juror exclusion.[4] In 2010, approximately 33% of African American males were statutorily excluded from the jury pool in New York State due to felony convictions.[5] Once again, the reason for the high percentage can be attributed to concerns about judicial diversity, systematic racism and implicit bias in law enforcement and sentencing. There is no reason to believe this racial disparity has decreased.
Virtue-Based Restrictions on Constitutional Rights
Are former felons just “bad people” to be denied their constitutional rights? Historically, exclusion was justified on the ground that felons lacked “requisite character.” This was noted by the majority opinion in the Seventh Circuit case of Kantor v. Barr, a Second Amendment case in which Justice Amy Coney Barrett dissented.
Kantor was convicted of the nonviolent felony of mail fraud. He served his time and was not charged with further criminal activity. However, his felony conviction permanently prohibited him from owning a firearm under federal and Wisconsin law. The Seventh Circuit stated the historical justification for disarming felons was tied to the concept of a virtuous citizenry, citing precedent:
“In United States v. Yancey, we opined that ‘most scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government could disarm “unvirtuous citizens.:””[6]
The majority concluded, “In sum, the government has established that the felon dispossession statutes are substantially related to the important governmental objective of keeping firearms away from those convicted of serious crimes.”[7]
Justice Barrett strongly dissented in a voluminous and passionate opinion, asserting:
“Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun.”[8]
She continued:
“The federal and Wisconsin laws would stand on solid footing if their categorical bans were tailored to serve the governments’ undeniably compelling interest in protecting the public from gun violence. But their dispossession of all felons – both violent and nonviolent – is unconstitutional as applied to Kantor.”
In short, Justice Barrett said an ex-felon is not an irredeemably bad person to be stripped of constitutional rights, and especially where all felonies are not created equal. Her logic applies equally to jury disqualification.
Heart and Lungs of Democracy
Although Justice Barrett seemed less concerned with virtue-based restrictions on voting rights and jury service, these are as fundamental as Second Amendment rights.
In 1744 John Adams famously wrote: “Representative government and trial by jury are the heart and lungs of liberty.”[9] Democracy falls short when it comes to fair and equal voting rights and the right to a fair unbiased jury trial. The suggestion that all former felons are immoral and thus disqualified from jury service is an illogical argument. It makes no more sense than automatically disqualifying them from voting rights or weapons possession. There seems no compelling state interest to justify such automatic and blanket ban.
State and Federal Constitutional Protections
The right to a trial by a jury of one’s peers is protected under the Sixth Amendment to the U.S. Constitution. Moreover, this is restated in New York Judiciary Law § 500: “It is the policy of this state that all litigants in the courts of this state entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community.”
The exclusion of all former felons from jury service discriminates against minorities due to their disproportionate representation in the pool of felons. This hinders the jury pool from being a fair cross section of the community. New York has restored a felon’s right to vote based on the harm caused by such bias. It is also time to end felony juror exclusion.
Sheldon Siporin is a New York attorney and a member of NYSBA. He is also an adjunct professor of psychology at Pace University.
[1] According to the Brennan Center for Justice, New York’s disenfranchisement policy was rooted in Jim Crow-era attempts to evade the Fifteenth Amendment’s mandate that Black men be given the right to vote. See Brennan Center for Justice, Voting Rights Restoration Efforts in New York, https://www.brennancenter.org/our-work/research-reports/voting-rights-restoration-efforts-new-york.
[2] 476 U.S. 79 (1986)
[3] Id. at 87 (1986)
[4] Ginger Jackson-Gleich, Rigging the Jury: How Each State Reduces Jury Diversity by Excluding People With Criminal Records, Prison Policy Initiative, Feb. 18, 2021, https://www.prisonpolicy.org/reports/juryexclusion.html.
[5] Paula Z. Segal, A More Inclusive Democracy: Challenging Felon Jury Exclusion in New York, CUNY Law Review 13:2 (Summer 2010), https://academicworks.cuny.edu/cgi/viewcontent.cgi?article=1276&context=clr.
[6] U.S. v. Yancy, 621 F.3d 681, 684–85 (7th Cir. 2010).
[7] Id. at 450.
[8] Id. at 451.
[9] A Forgotten History: Trial by Jury and the American Revolution, West Virginia Association for Justice, https://www.wvaj.org/?pg=TrialbyJuryAmericanRevolution.
