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The Felon On The Jury

For years, people have asked how they can get out of jury duty. My response has always been the same, that we need good jurors or the system doesn’t work. People tend to agree, but they still want to get out of jury duty. Let some other guy be the good person.

But now a Legal Aid Society lawyer with a felony conviction has decided he not only wants to be on a jury, but that his exclusion from jury service for having a prior felony conviction is racist and unconstitutional.

This civil-rights action challenges the mass disenfranchisement of Black people—
especially Black men—from the state court jury pool in Manhattan. A New York statute—Section 510(3) of the Judiciary Law—disqualifies people convicted of felonies from serving on juries, no matter the offenses or how long ago the convictions occurred. As a result of decades of racially biased policing and prosecutorial practices determining which New  Yorkers have felony convictions, the statute likely excludes from jury service more than one out of every of four otherwise jury-eligible Black residents of New York County. For otherwise-eligible Black men, the exclusion is even more devastating, disqualifying likely more than 40 percent of them. This mass disenfranchisement dilutes the voting strength of Black citizens on grand juries and trial juries in both civil and criminal cases, which are bodies fundamental to democratic self government and the administration of justice. The reduction in jury diversity compromises the quality of deliberations, erodes public confidence in the fairness of the jury system, and hampers successful reintegration into society.

Because the statutory exclusion is indefinite, the effects of racially biased policing and prosecution in Manhattan have accumulated over time. Racist policies and practices
throughout the past half-century, including disparate drug enforcement, broken-windows policing, and the New York City Police Department’s unconstitutional stop-and-frisk program, shape the racial composition of the jury pool today. Because of those policies (and countless others), Black people in Manhattan have been convicted of felonies at rates that vastly exceed any other racial group year in and year out. Indeed, Manhattan consistently exhibits the greatest such disparities between Black and white people of any county in New York State. Black people in Manhattan are grossly overrepresented among the population with felony convictions and underrepresented among prospective state court jurors.

The statutory exclusion perpetuates a vicious cycle in Manhattan. The underrepresentation of Black people in the jury pool contributes to disproportionately bad outcomes for Black people in the justice system, which in turn drives their underrepresentation in the jury pool, and so on.

There’s a lot packed in here about race, much of which has become an article of faith in progressive discourse on law. But then, much is well grounded, such as the deployment of police in black neighborhood and the still-pervasive belief within the NYPD that black men are more violent and prone to crime.

The contention that black people are underrepresented on juries is certainly something every criminal defense lawyer knows anecdotally, although it’s unclear whether that’s only because of felon exclusion or that the people most likely to show up for jury duty are government employees and retirees.

But if the argument is grounded in the claim that black defendants are entitled to black jurors, or that black jurors would reach different verdicts than other jurors, there would be both significant standing problems and a highly dubious connection. Are black jurors unable to be fair? Are white jurors? Is race the controlling factor? But that isn’t the only argument for standing.

Jury service is a cornerstone of our democratic system. It is a constitutional means for citizens to participate in the administration of justice and, with voting, represents Americans’ “most significant opportunity to participate in the democratic process.”

Are felons denied participation in our democratic system because they’re excluded from jury duty? While black people are disproportionately convicted of felonies based on their representation in the general population, the vast majority of felons remain white people. And is there a right to “participate in the administration of justice” at all? Like voting, jury duty is a civic right, but nobody has a right to be on a jury even if they have a right not to be expressly excluded on the basis of race per Batson.

There are two issues built into this suit, the one being the exclusion of people with a felony conviction at all and the second being the contention that this exclusion is racial discrimination. The former issue, much like felony disenfranchisement, is not so much a legal issue as a policy issue. Why, after having paid one’s debt to society, is one not restored to all the rights afforded every other citizen?

There is an argument that people with prior felony convictions might be disinclined to believe police witnesses, making them biased jurors as if people who appreciate how police protect and serve them aren’t biased in the other direction. But then, what’s the point of a juror if not to bring their real world experience into the jury room in order to assess credibility? An awful lot of black people do not have warm feelings toward cops because of how poorly they’ve been treated. is that the fault of black people or the cops who abused them? If cops don’t want people to think poorly of them, the solution is to treat people better, not keep the people they treat poorly off the jury.

Is it time to restore the right to perform jury service to people with a felony conviction who have completed their sentence? It seems too obvious to discuss, as they remain citizens and should be entitled, for better or worse, to the same rights and protections as any other citizen. But is this unconstitutional racial discrimination? That’s a harder connection to make.