Existing law excludes from jury service a person who has been convicted of malfeasance in office. Existing law also excludes from jury service a felon whose civil rights have not been restored.

This bill would eliminate the exclusion of instead exclude a felon whose civil rights have not been restored and would instead who has not completed probation, parole, post-release community supervision, or mandatory supervision. This bill would also categorically exclude a felon person who has been convicted of bribery, perjury, forgery, or other high crimes.

Existing law excludes from jury service a person who has been convicted of malfeasance in office. Existing law also excludes from jury service a felon whose civil rights have not been restored.

This bill would eliminate the exclusion of a felon whose civil rights have not been restored and would instead exclude a felon who has been convicted of bribery, perjury, forgery, or other high crimes.

Date of Hearing: January 12, 2016

ASSEMBLY COMMITTEE ON JUDICIARY

, Chair

ABPCA Bill Id:AB 324

Author:(Jones-Sawyer) – As Amended April 6, 2015Ver: April 6, 2015

SUBJECT: TRIAL JURORS: ELIGIBILITY

KEY ISSUE: SHOULD A PERSON WITH A PRIOR FELONY CONVICTION HAVE HIS OR HER RIGHT TO JURY SERVICE RESTORED AFTER COMPLETING ALL FELONY SENTENCING REQUIREMENTS?

SYNOPSIS

Under existing law, a person who has been convicted of a felony is excluded from jury service. This has been the practice since the state’s constitution was drafted in 1849 and possibly before that time. Thirty-one states, including California and the federal government, permanently exclude ex-felons from serving as jurors, (unless their civil rights have been restored). Seventeen other states have some sort of restriction (though less than permanent), of felons’ participation in jury service. Colorado and Maine are the only two states which allow felons to participate in jury service without restrictions. According to the co-sponsor of this bill, A New Way of Life Re-Entry Project, there are nearly 300,000 people incarcerated for a felony conviction, at any given time in California. Upon completion of their sentences, they return to their communities and join the other hundreds of thousands people who are excluded from serving on trial juries. A disproportionate number of those subject to this exclusion are African-American and Latino. This bill seeks to grant ex-felons the right to participate in jury service, once they have completed the terms of their sentencing requirements. Felons will no longer be required to attain the very elusive “restoration of one’s civil rights” in order to serve on a jury, which is currently required under existing law. This bill also aligns statutory law with the state Constitution by adding the crimes of bribery, forgery and perjury to the list of convictions that exclude a person from jury service. Supporters, including human rights organizations, reentry advocacy groups, community organizing networks and defense attorneys, believe that allowing ex-felons the right to serve on a jury is long overdue and should be granted just as to the right to vote was restored to ex-felons more than forty years ago. Those in opposition, various law enforcement organizations and agencies, believe felons are likely to have a bias against the government and police and would bring those biases with them into the jury room. They also allege that a dangerous situation is created when law abiding citizens are forced to be locked in a jury room with ex-felons, who may be repeat, violent offenders.

SUMMARY: Modifies the statutory eligibility and qualification requirements of a prospective trial juror to include a person with a felony conviction. Specifically, this bill:

1. Allows a person with a felony conviction to participate in jury service, after the completion of probation, parole, post-release community supervision, or mandatory supervision for the conviction of a felony.
2. Aligns Section 203 of the Code of Civil Procedure with Article VII, Section 8(b) of the California Constitution by excluding, persons who have been convicted of bribery, perjury, forgery, or other “high crimes” from serving as prospective trial jurors.

EXISTING LAW:

1) All persons are eligible and qualified to be prospective trial jurors, except the following:

a) Persons who are not citizens of the United States.

b) Persons who are less than 18 years old.

c) Persons who are not domiciled in California, as determined by Article 2 of Chapter 1 of Division 2 of the Elections Code.

d) Persons who are not residents of the jurisdiction where they have been summoned to serve.

e) Persons who have been convicted of malfeasance in office or a felony, and whose civil rights have not been restored.

f) Persons who do not possess sufficient knowledge of the English language.

g) Persons who are serving as grand or trial jurors in any court in the state.

h) Persons who are the subject of conservatorship.

2) No person will be excluded from eligibility for jury service in the state, for any reason other than those provided in this section. (Code of Civil Procedure Section 203.)

3) Defines a felony as an offense punishable by death or imprisonment for more than one year. (Penal Code Section 17.)

4) Provides that laws must be made to exclude persons convicted of bribery, perjury, forgery, malfeasance in office, or other high crimes from office or serving on juries. (Article VII, Sec. 8(b) of the California Constitution.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: Article VII Section 8(b) of the California Constitution, excludes felons from jury service. The practice of excluding persons with felony convictions from jury service goes all the way back to the original drafting of the state Constitution in 1849, which borrowed its language from the U.S. Constitution. From 1849 until 1974, both voting and jury service were privileges denied to persons with felony convictions. In 1974, following the United States Supreme Court decision that found that the denial of the right to vote did not violate the Due Process Clause of the U.S. Constitution (Richardson v. Ramirez (1974) 418 U.S. 24.), California voters adopted Proposition 10 to amend the state Constitution and restore the right to vote to ex-felons. Unfortunately, a similar vote has not occurred to amend the state Constitution and grant to persons with felony convictions the right to serve on juries. This bill amends Section 203 of the Code of Civil Procedure to allow felons to participate in jury service after the requirements of their felony sentences have been completed.

The current practice of felon jury exclusion in the United States. Thirty-one states, including California and the federal government, permanently exclude felons from serving as jurors, (unless their civil rights have been restored). Seventeen other states have some sort of restriction (though less permanent), on felons’ participation in jury service. Colorado and Maine are the only two states which allow felons to participate in jury service without restriction.

The author explains the reason for the bill as follows:

A majority of United States jurisdictions bar felons from jury service permanently, creating a class of citizens who are defined and punished by the criminal justice system [,] but unable to impact its function.  These [jury] exclusion statutes bar felons from the jury process because they allegedly harbor a bias so irreparable, [that] they are deemed incapable of rendering a decision in line with the prosecution.  It is much more appropriate to have an individualized assessment of juror fitness through the jury selection process.  If we want people who have been convicted of crimes to return to society[,] and be functioning members of society[,] then we must restore their civil rights, including the right to serve on a jury.

There are three common justifications for excluding felons from jury service. In considering the numerous theories or justifications that attempt to justify why felons should be excluded from the jury process, there are three common theories. One justification, established centuries ago, is that a person who has committed a felony, has in fact "wronged" society at large and should therefore forever be denied certain rights and privileges that are afforded to the general population (such as the right to vote and to serve as a juror).

The problem with this theory is that it contradicts one of the main purposes of incarcerating felons, to create an environment and opportunity for correction and rehabilitation. Once a felon has served his or her time in confinement and completed the entirety of his sentencing requirements, has he or she not paid penance for that prior societal wrong? Should the denial of one’s civil rights last forever? If so, what is the purpose of requiring that a felon become rehabilitated? California grants ex-felons the right to vote after imprisonment and parole are completed. Being allowed to participate in jury service is a way to help further reintegrate ex-felons into our society and into their respective communities.

A statement that epitomizes the significance of jury service is contained in a research paper written by Brian Kalt which states, “Jury service is the pinnacle of democratic participation; by serving on a jury, a citizen is a citizen in the most direct way. Voting is relatively anonymous and one vote almost never makes a difference. Jurors, by contrast, have direct and obvious effects. Where a unanimous verdict is required, jurors vote publicly (if they reach a verdict) and one vote always makes a difference. Even where unanimity is not required, and even when a juror is on the losing side, the interchange that is required to reach a verdict brings the juror closer to the ideals of direct democracy than any other activity. Such democratic participation is valuable to anyone who engages in it, and perhaps more so to felons.” (Brian C. Kalt, The Exclusion of Felons from Jury Service, 79.) This bill, by allowing ex-felons to engage in the democratic process, while serving a significant civic duty, appears to be consistent with the principles expressed by Kalt.

Another common justification for excluding ex-felons from jury service is that an ex-felon, by the nature of his or her prior action, lacks the integrity required of a juror (i.e. they are not considered “beyond reproach”). According to the book, We The Jury: Jury Selection and the Cross-Sectional Idea, by J. Abramsom, there was a time in our country’s history when the courts only impaneled “blue-ribbon juries.” The thought was that justice required service of citizens—all male and all white, of course—who were above average levels of “intelligence, morality, and integrity.” So in place of the random selection process that is used today for jury pool composition, jury commissioners typically solicited the names of “men of recognized intelligence and probity” from notables or “key men” of the community. As recently as 1967 a survey showed that 60 percent of federal courts still relied primarily, on the so-called “key men” system for soliciting names of prospective jurors. It wasn’t until 1968, with the Jury Selection and Service Act that Congress abandoned this system in favor of the current “fair cross section of the community” standard for trial jurors in federal courts. This standard was extended to state courts in 1975 by the United States Supreme Court requiring that a jury pool be a mirror image or microcosm of the eligible community population. (Taylor v. Louisiana, 419 U.S. 522 (1975).), J. Abramsom, We The Jury: The Jury System and the Ideal of Democracy, 99 (Paperback Edition 2000).) In order to have a true cross-section representation of our society and a jury that mirrors the community’s population, all community members, with extremely limited exceptions, should have the opportunity to participate in jury service, including ex-felons who have completed the terms of their felony sentence requirements.

The third justification for excluding ex-felons from jury service is based on the belief that ex-felons harbor a bias against the government and therefore would not be able to render a fair decision. This assumption requires that one believe that an entire class of people, namely ex-felons, automatically have a bias against the government and therefore cannot be fair jurors. Where is the foundational basis for this assumption? While there are very likely some felons who hate the police and hate the government, aren’t there also average citizens, with no felony convictions, who feel the same way? What about those ex-felons who, while serving their time, finished high school, learned a trade or skill, and actually allowed the experience to rehabilitate their lives? Would they still be biased against a system that helped to change their lives and improve their future prospects? Maybe or maybe not, but a generalized assumption in this regard is totally unsubstantiated and therefore harmful because it serves to deny a large portion of the population a significant civil right.

There are better ways to combat bias in prospective jurors. Every person has some form of bias. A juror who has had a life-threatening experience with a hit and run driver probably wouldn’t be the best juror to sit on a jury for a case involving a hit and run accident. However, that same prospective juror might be perfect for a case involving a burglary, white collar crime or one of many other types of crimes. A person who had a bad experience with an employee of a local police department might have a bias against that employee or the entire department. That same person might be perfectly capable of being unbiased on a tax evasion case or a child endangerment matter. Bias depends on the past experiences of each individual, one reason why the jury selection process is so important to the entire court trial system.

Voir dire is a formal, pre-trial examination process that is used to determine the qualification and suitability of each potential juror. The process is intended to help the parties identify and weed out jurors who are biased and would not serve well on a particular case due to the facts and evidence involved in the case. The voir dire process can be extremely informative because there are always two types of communication: verbal and non-verbal. A good trial attorney hones his or her skills to detect and read non-verbal cues. The best way to select a good juror for a particular case is to ask questions and to gather information about that person’s life, background and experiences. The best jury is one that consists of persons who have a wealth of experiences and varying perspectives of the world. An ex-felon has firsthand experience of the criminal justice system because he or she has been intimately involved in it. Who better to bring that kind of perspective to the jury pool than someone with that background and experience? When a jury represents members of the entire community, there is a greater chance that the deliberations will be enhanced by all of their life experiences.

The racial impact of excluding felons from jury service. According to a report by the U.S. Bureau of Labor Statistics, thirteen million people, including approximately 30% of black men, are banned for life from jury service because they are ex-felons. These numbers are based on the incarceration rates from 1925 to 2001, and do not include any recent incarceration statistics, which would most likely increase that number significantly due to the prison boom that only began to decreased in recent years. According to a 2013 study by the Public Policy Institute of California (CPPC), “African American men are dramatically more likely to be imprisoned than other minority groups.  More than half of California’s adult male population is nonwhite or Latino (56%), but these groups make up three of every four men in prison: Latinos are 41%, African Americans are 29%, and other races are 6%. Among adult men in 2010, African Americans were incarcerated at a rate of 5,525 per 100,000, compared to 1,146 for Latinos, 671 for non-Latino whites, and 43 for Asians.” (Bureau of Justice Statistics, U.S. Department of Justice, Sourcebook of Criminal Justice Statistics 2001 tbl. 6.23 at 494 (2002); Ryken Grattet and Joseph Hayes, California’s Changing Prison Population, Public Policy Institute of California, June 2013.) By allowing ex-felons to participate in the jury process, this bill would allow more men of color to be entered into the jury pool, creating a more representative sample of the state’s diversity.

Restoration of civil rights following a felony conviction. Currently, in California the only way an ex-felon may participate in the jury selection process is to have his or her civil rights restored. Having one’s civil right restored after a felony conviction is an onerous task, and can be nearly impossible in certain states. Under federal law, restoration of one’s civil rights can only occur by Presidential Pardon. While that may seem extreme, California’s process is not much better. There are two avenues in the state for the restoration of one’s civil rights, a Certificate of Rehabilitation, or a Governor’s Pardon. A Certificate of Rehabilitation is an Order by a Superior Court Judge declaring that a person’s criminal history is past and that the person is now rehabilitated. (Penal Code Section 4852.05.) The process involves the court’s review of specified information submitted by the applicant and the subsequent decision to grant or deny the applicant’s request. (Ibid.) Once granted, the Certificate serves as a recommendation to the Governor for a Pardon. The Certificate application process takes time and skill, but a successful outcome is not guaranteed. A Governor’s Pardon is granted at the Governor’s discretion and can take many years to be granted, if it is granted at all. (Penal Code Section 4852.16.) The challenges presented by both processes serve as systemic deterrents to ex-felons who wish to one day participate in the jury selection process. While this path may be an option for the very few ex-felons with the financial resources or political connections, it is not an option for the majority of ex-felons. This bill removes the restoration of rights requirement, allowing the privilege of jury service to extend to every ex-felon who has completed his felony sentencing requirements.

Ending the punishment once a person has served his or her imposed sentence. Article VII, Section 8(b) of the state Constitution originally included the right to vote as one of the privileges permanently lost by conviction of a felony. However, in 1974 the citizens of California adopted a constitutional amendment to eliminate the provision that denied voting rights to ex-felons who are no longer in prison or on parole. More than forty years have passed since California citizens made the conscious choice to restore voting privileges to ex-felons. The people, at least on that occasion, agreed that once an ex-felon is no longer in prison or on parole, an important civil right should automatically be restored.

As part of their American Jury Project, the American Bar Association in 2005, published standards on jury service entitled “Principles for Juries and Jury Trials”. In the preamble of the report, the ABA noted its “recognition of the ongoing need of the legal community to refine and improve jury practice so that the right to jury trial is preserved and juror participation enhanced”. Nineteen principles were illuminated in the report as the ABA’s fundamental aspirations, including Principal Two which outlined those persons who should be excluded from jury service. In that regard, the report limits the exclusion of felons from jury service to only those who “have been convicted of a felony and remain in actual confinement, on probation, on parole or under other court supervision.” The ABA’s goal, as demonstrated by the report, is to include within jury service, felons who have served their time and completed their sentencing requirements. California has the opportunity to restore this civil right to thousands of its citizens and to practice true realignment by allowing ex-felons to reengage and reconnect within their communities through jury service. (See American Bar Association, Principles for Juries and Juries Trials-American Jury Project (2005).)

Aligning the state jury exclusion statute with the state Constitution. Along with felons, Article VII, Section 8(b) of the California Constitution currently excludes those convicted of bribery, perjury, forgery, malfeasance in office, or other “high crimes” from serving as jurors. However, the Code of Civil Procedure Section 203(a)(5), which outlines the types of convictions which exclude persons from being eligible to serve on a jury, only lists those persons convicted of malfeasance in office and those persons with a felony conviction. This bill will align the state Constitution with the statute defining juror eligibility by excluding those persons who have been convicted of perjury, forgery, bribery, malfeasance in office and other “high crimes.” (California Constitution, Article VII, Section 8(b).) “High crimes” are “those punishable offenses that only apply to high persons, that is, to public officials, those who, because of their official status, are under special obligations that ordinary persons are not under, and which could not be meaningfully applied or justly punished if committed by ordinary persons.” (Jon Roland, Meaning of High Crimes and Misdemeanors, Constitutional Society (1999).)

Different standards for the right to vote and the right to serve on a jury. Of the crimes listed above, the only ex-felons who will be excluded from jury service are those who have not completed probation, parole, post-release community supervision, or mandatory supervision for the conviction of a felony and those convicted of felonies involving moral turpitude. This language is distinct from the language in CCP Section 203, granting voting rights to ex-felons, which states that the person may exercise their right to vote so long as the person is “not in prison or on parole for the conviction of a felony.” A person who votes does so singularly, and is not required to stand in judgment of another person when exercising that right. With the changes occurring as our state institutes and supports realignment efforts, it seems prudent, when restoring the rights of ex-felons to serve as jurors, to ensure that all of the ex-felon’s sentencing requirements have been completed. This bill contains language to ensure that the ex-felon has, in fact, completed his or her sentence, as well as the term of his or her probation, parole, or post-release community supervision, or mandatory supervision.

ARGUMENTS IN SUPPORT: This bill enjoys support from a wide range of groups, including human rights organizations, reentry advocacy groups, community organizing networks, and defense attorneys. According to the sponsor, A New Way of Life Re-Entry Project:

At any given time in California, nearly 300,000 people are incarcerated for a felony conviction. The vast Majority will complete their sentences and return to their communities-and will join hundreds of thousands of people who are preemptively barred from jury service. A disproportionate percentage of these people are African-American and Latino.

The blanket exclusion of people with felony convictions-without the individualized consideration afforded to other citizens during voir dire-perpetuates harmful and inflexible generalizations about the characteristics of “felons” and the place of people with felony convictions in society, and disenfranchises entire demographics of people, with 1 in every 6 African American man incarcerated nationwide.

ARGUMENTS IN OPPOSITION: Opponents of the bill include local and state law enforcement agencies. The Los Angeles County Professional Peace Officers Association, among others, writes:

Convicted felons possess a very real and frequently hostile bias against the laws of our state and especially against dedicated peace officers who have sworn to enforce those laws. These felons are likely to exhibit their anti-police bias in criminal cases and in civil cases where officers are either witnesses or a party.

We are concerned for the safety of the non-criminal jurors who would be required by law to remain in close quarters for extended periods of time with repeat, violent offenders.

Our society does not mandate its citizens live next-door [to] violent offenders. Nor does it require employers to hire or landlords to rent to dangerous criminals. However, AB 324 would force law-abiding citizens into potentially dangerous situations in shuttered jury rooms and during sequester.

Previous Related Legislation. AB 1401 (Committee on Judiciary) 2013, which was vetoed by the governor, would have allowed lawful permanent immigrants or citizens of the United States to serve on juries. Governor Brown cited in his veto message that jury duty, like voting is “quintessentially a prerogative and responsibility of citizenship. This bill would permit lawful permanent residents who are not citizens to serve on a jury, I don’t think that’s right.” None of the concerns about AB 1401 are applicable to this bill.

REGISTERED SUPPORT / OPPOSITION:

Support

A New Way of Life Re-Entry Project (co-sponsor)

Legal Services for Prisoners with Children (co-sponsor)

A New Path

A New Way of Life Re-Entry Project

All Saints Church, Pasadena – New Jim Crow Action Group

American Civil Liberties Association

Asian Americans Advancing Justice – Los Angeles

Building Healthy Communities: Long Beach

California Immigrant Policy Center

California Public Defenders Association

California United for a Responsible Budget

Courage Campaign

Ella Baker Center for Human Rights

Families to Amend California’s Three Strikes

Friends Committee on Legislation of California

Glide Foundation

Greenlining Institute

Justice Not Jails

Lawyers’ Committee for Civil Rights of the San Francisco Bay Area

New Covenant Worship Center

One Individual

PICO California

Root & Rebound

Rubicon Programs

San Francisco Tenants Union

Students for Sensible Drug Policy, Whittier Law School

Several individuals

Opposition

California District Attorneys Association

California State Sheriffs’ Association

California Fraternal Order of Police

Long Beach Police Officers Association

Los Angeles County Professional Peace Officers Association

Santa Ana Police Officers Association

Sacramento County Deputy Sheriffs’ Association

Analysis Prepared by:

Date of Hearing: April 14, 2015

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 324

Author:(Jones-Sawyer) – As Amended April 6, 2015Ver: April 6, 2015

SUBJECT: TRIAL JURORS: ELIGIBILITY

KEY ISSUE: SHOULD A PERSON WITH A PRIOR FELONY CONVICTION HAVE HIS OR HER RIGHT TO JURY SERVICE RESTORED AFTER COMPLETING ALL FELONY SENTENCING REQUIREMENTS?

SYNOPSIS

Under existing law, a person who has been convicted of a felony is excluded from jury service. This has been the practice since the state’s constitution was drafted in 1849 and possibly before that time. Thirty-one states, including California and the federal government, permanently exclude ex-felons from serving as jurors, (unless their civil rights have been restored). Seventeen other states have some sort of restriction (though less than permanent), of felons’ participation in jury service. Colorado and Maine are the only two states which allow felons to participate in jury service without restrictions. According to the co-sponsor of this bill, A New Way of Life Re-Entry Project, there are nearly 300,000 people incarcerated for a felony conviction, at any given time in California. Upon completion of their sentences, they return to their communities and join the other hundreds of thousands people who are excluded from serving on trial juries. A disproportionate number of those subject to this exclusion are African-American and Latino. This bill seeks to grant ex-felons the right to participate in jury service, once they have completed the terms of their sentencing requirements. Felons will no longer be required to attain the very elusive “restoration of one’s civil rights” in order to serve on a jury, which is currently required under existing law. This bill also aligns statutory law with the state Constitution by adding the crimes of bribery, forgery and perjury to the list of convictions that exclude a person from jury service. Supporters, including human rights organizations, reentry advocacy groups, community organizing networks and defense attorneys, believe that allowing ex-felons the right to serve on a jury is long overdue and should be granted just as to the right to vote was restored to ex-felons more than forty years ago. Those in opposition, various law enforcement organizations and agencies, believe felons are likely to have a bias against the government and police and would bring those biases with them into the jury room. They also allege that a dangerous situation is created when law abiding citizens are forced to be locked in a jury room with ex-felons, who may be repeat, violent offenders.

SUMMARY: Modifies the statutory eligibility and qualification requirements of a prospective trial juror to include a person with a felony conviction. Specifically, this bill:

1. Allows a person with a felony conviction to participate in jury service, after the completion of probation, parole, post-release community supervision, or mandatory supervision for the conviction of a felony.

2. Aligns Section 203 of the Code of Civil Procedure with Article VII, Section 8(b) of the California Constitution by excluding, persons who have been convicted of bribery, perjury, forgery, or other “high crimes” from serving as prospective trial jurors.

EXISTING LAW:

1) All persons are eligible and qualified to be prospective trial jurors, except the following:

a) Persons who are not citizens of the United States.

b) Persons who are less than 18 years old.

c) Persons who are not domiciled in California, as determined by Article 2 of Chapter 1 of Division 2 of the Elections Code.

d) Persons who are not residents of the jurisdiction where they have been summoned to serve.

e) Persons who have been convicted of malfeasance in office or a felony, and whose civil rights have not been restored.

f) Persons who do not possess sufficient knowledge of the English language.

g) Persons who are serving as grand or trial jurors in any court in the state.

h) Persons who are the subject of conservatorship.

2) No person will be excluded from eligibility for jury service in the state, for any reason other than those provided in this section. (Code of Civil Procedure Section 203.)

3) Defines a felony as an offense punishable by death or imprisonment for more than one year. (Penal Code Section 17.)

4) Provides that laws must be made to exclude persons convicted of bribery, perjury, forgery, malfeasance in office, or other high crimes from office or serving on juries. (Article VII, Sec. 8(b) of the California Constitution.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: Article VII Section 8(b) of the California Constitution, excludes felons from jury service. The practice of excluding persons with felony convictions from jury service goes all the way back to the original drafting of the state Constitution in 1849, which borrowed its language from the U.S. Constitution. From 1849 until 1974, both voting and jury service were privileges denied to persons with felony convictions. In 1974, following the United States Supreme Court decision that found that the denial of the right to vote did not violate the Due Process Clause of the U.S. Constitution (Richardson v. Ramirez (1974) 418 U.S. 24.), California voters adopted Proposition 10 to amend the state Constitution and restore the right to vote to ex-felons. Unfortunately, a similar vote has not occurred to amend the state Constitution and grant to persons with felony convictions the right to serve on juries. This bill amends Section 203 of the Code of Civil Procedure to allow felons to participate in jury service after the requirements of their felony sentences have been completed.

The current practice of felon jury exclusion in the United States. Thirty-one states, including California and the federal government, permanently exclude felons from serving as jurors, (unless their civil rights have been restored). Seventeen other states have some sort of restriction (though less permanent), on felons’ participation in jury service. Colorado and Maine are the only two states which allow felons to participate in jury service without restriction.

The author explains the reason for the bill as follows:

A majority of United States jurisdictions bar felons from jury service permanently, creating a class of citizens who are defined and punished by the criminal justice system [,] but unable to impact its function.  These [jury] exclusion statutes bar felons from the jury process because they allegedly harbor a bias so irreparable, [that] they are deemed incapable of rendering a decision in line with the prosecution.  It is much more appropriate to have an individualized assessment of juror fitness through the jury selection process.  If we want people who have been convicted of crimes to return to society[,] and be functioning members of society[,] then we must restore their civil rights, including the right to serve on a jury.

There are three common justifications for excluding felons from jury service. In considering the numerous theories or justifications that attempt to justify why felons should be excluded from the jury process, there are three common theories. One justification, established centuries ago, is that a person who has committed a felony, has in fact "wronged" society at large and should therefore forever be denied certain rights and privileges that are afforded to the general population (such as the right to vote and to serve as a juror).

The problem with this theory is that it contradicts one of the main purposes of incarcerating felons, to create an environment and opportunity for correction and rehabilitation. Once a felon has served his or her time in confinement and completed the entirety of his sentencing requirements, has he or she not paid penance for that prior societal wrong? Should the denial of one’s civil rights last forever? If so, what is the purpose of requiring that a felon become rehabilitated? California grants ex-felons the right to vote after imprisonment and parole are completed. Being allowed to participate in jury service is a way to help further reintegrate ex-felons into our society and into their respective communities.

A statement that epitomizes the significance of jury service is contained in a research paper written by Brian Kalt which states, “Jury service is the pinnacle of democratic participation; by serving on a jury, a citizen is a citizen in the most direct way. Voting is relatively anonymous and one vote almost never makes a difference. Jurors, by contrast, have direct and obvious effects. Where a unanimous verdict is required, jurors vote publicly (if they reach a verdict) and one vote always makes a difference. Even where unanimity is not required, and even when a juror is on the losing side, the interchange that is required to reach a verdict brings the juror closer to the ideals of direct democracy than any other activity. Such democratic participation is valuable to anyone who engages in it, and perhaps more so to felons.” (Brian C. Kalt, The Exclusion of Felons from Jury Service, 79.) This bill, by allowing ex-felons to engage in the democratic process, while serving a significant civic duty, appears to be consistent with the principles expressed by Kalt.

Another common justification for excluding ex-felons from jury service is that an ex-felon, by the nature of his or her prior action, lacks the integrity required of a juror (i.e. they are not considered “beyond reproach”). According to the book, We The Jury: Jury Selection and the Cross-Sectional Idea, by J. Abramsom, there was a time in our country’s history when the courts only impaneled “blue-ribbon juries.” The thought was that justice required service of citizens—all male and all white, of course—who were above average levels of “intelligence, morality, and integrity.” So in place of the random selection process that is used today for jury pool composition, jury commissioners typically solicited the names of “men of recognized intelligence and probity” from notables or “key men” of the community. As recently as 1967 a survey showed that 60 percent of federal courts still relied primarily, on the so-called “key men” system for soliciting names of prospective jurors. It wasn’t until 1968, with the Jury Selection and Service Act that Congress abandoned this system in favor of the current “fair cross section of the community” standard for trial jurors in federal courts. This standard was extended to state courts in 1975 by the United States Supreme Court requiring that a jury pool be a mirror image or microcosm of the eligible community population. (Taylor v. Louisiana, 419 U.S. 522 (1975).), J. Abramsom, We The Jury: The Jury System and the Ideal of Democracy, 99 (Paperback Edition 2000). In order to have a true cross-section representation of our society and a jury that mirrors the community’s population, all community members, with extremely limited exceptions, should have the opportunity to participate in jury service, including ex-felons who have completed the terms of their felony sentence requirements.

The third justification for excluding ex-felons from jury service is based on the belief that ex-felons harbor a bias against the government and therefore would not be able to render a fair decision. This assumption requires that one believe that an entire class of people, namely ex-felons, automatically have a bias against the government and therefore cannot be fair jurors. Where is the foundational basis for this assumption? While there are very likely some felons who hate the police and hate the government, aren’t there also average citizens, with no felony convictions, who feel the same way? What about those ex-felons who, while serving their time, finished high school, learned a trade or skill, and actually allowed the experience to rehabilitate their lives? Would they still be biased against a system that helped to change their lives and improve their future prospects? Maybe or maybe not, but a generalized assumption in this regard is totally unsubstantiated and therefore harmful because it serves to deny a large portion of the population a significant civil right.

There are better ways to combat bias in prospective jurors. Every person has some form of bias. A juror who has had a life-threatening experience with a hit and run driver probably wouldn’t be the best juror to sit on a jury for a case involving a hit and run accident. However, that same prospective juror might be perfect for a case involving a burglary, white collar crime or one of many other types of crimes. A person who had a bad experience with an employee of a local police department might have a bias against that employee or the entire department. That same person might be perfectly capable of being unbiased on a tax evasion case or a child endangerment matter. Bias depends on the past experiences of each individual, one reason why the jury selection process is so important to the entire court trial system.

Voir dire is a formal, pre-trial examination process that is used to determine the qualification and suitability of each potential juror. The process is intended to help the parties identify and weed out jurors who are biased and would not serve well on a particular case due to the facts and evidence involved in the case. The voir dire process can be extremely informative because there are always two types of communication: verbal and non-verbal. A good trial attorney hones his or her skills to detect and read non-verbal cues. The best way to select a good juror for a particular case is to ask questions and to gather information about that person’s life, background and experiences. The best jury is one that consists of persons who have a wealth of experiences and varying perspectives of the world. An ex-felon has firsthand experience of the criminal justice system because he or she has been intimately involved in it. Who better to bring that kind of perspective to the jury pool than someone with that background and experience? When a jury represents members of the entire community, there is a greater chance that the deliberations will be enhanced by all of their life experiences.

The racial impact of excluding felons from jury service. According to a report by the U.S. Bureau of Labor Statistics, thirteen million people, including approximately 30% of black men, are banned for life from jury service because they are ex-felons. These numbers are based on the incarceration rates from 1925 to 2001, and do not include any recent incarceration statistics, which would most likely increase that number significantly due to the prison boom that only began to decreased in recent years. According to a 2013 study by the Public Policy Institute of California (CPPC), “African American men are dramatically more likely to be imprisoned than other minority groups.  More than half of California’s adult male population is nonwhite or Latino (56%), but these groups make up three of every four men in prison: Latinos are 41%, African Americans are 29%, and other races are 6%. Among adult men in 2010, African Americans were incarcerated at a rate of 5,525 per 100,000, compared to 1,146 for Latinos, 671 for non-Latino whites, and 43 for Asians.” (Bureau of Justice Statistics, U.S. Department of Justice, Sourcebook of Criminal Justice Statistics 2001 tbl. 6.23 at 494 (2002); Ryken Grattet and Joseph Hayes, California’s Changing Prison Population, Public Policy Institute of California, June 2013.) By allowing ex-felons to participate in the jury process, this bill would allow more men of color to be entered into the jury pool, creating a more representative sample of the state’s diversity.

Restoration of civil rights following a felony conviction. Currently, in California the only way an ex-felon may participate in the jury selection process is to have his or her civil rights restored. Having one’s civil right restored after a felony conviction is an onerous task, and can be nearly impossible in certain states. Under federal law, restoration of one’s civil rights can only occur by Presidential Pardon. While that may seem extreme, California’s process is not much better. There are two avenues in the state for the restoration of one’s civil rights, a Certificate of Rehabilitation, or a Governor’s Pardon. A Certificate of Rehabilitation is an Order by a Superior Court Judge declaring that a person’s criminal history is past and that the person is now rehabilitated. (Penal Code Section 4852.05.) The process involves the court’s review of specified information submitted by the applicant and the subsequent decision to grant or deny the applicant’s request. (Ibid.) Once granted, the Certificate serves as a recommendation to the Governor for a Pardon. The Certificate application process takes time and skill, but a successful outcome is not guaranteed. A Governor’s Pardon is granted at the Governor’s discretion and can take many years to be granted, if it is granted at all. (Penal Code Section 4852.16.) The challenges presented by both processes serve as systemic deterrents to ex-felons who wish to one day participate in the jury selection process. While this path may be an option for the very few ex-felons with the financial resources or political connections, it is not an option for the majority of ex-felons. This bill removes the restoration of rights requirement, allowing the privilege of jury service to extend to every ex-felon who has completed his felony sentencing requirements.

Ending the punishment once a person has served his or her imposed sentence. Article VII, Section 8(b) of the state Constitution originally included the right to vote as one of the privileges permanently lost by conviction of a felony. However, in 1974 the citizens of California adopted a constitutional amendment to eliminate the provision that denied voting rights to ex-felons who are no longer in prison or on parole. More than forty years have passed since California citizens made the conscious choice to restore voting privileges to ex-felons. The people, at least on that occasion, agreed that once an ex-felon is no longer in prison or on parole, an important civil right should automatically be restored.

As part of their American Jury Project, the American Bar Association in 2005, published standards on jury service entitled “Principles for Juries and Jury Trials”. In the preamble of the report, the ABA noted its “recognition of the ongoing need of the legal community to refine and improve jury practice so that the right to jury trial is preserved and juror participation enhanced”. Nineteen principles were illuminated in the report as the ABA’s fundamental aspirations, including Principal Two which outlined those persons who should be excluded from jury service. In that regard, the report limits the exclusion of felons from jury service to only those who “have been convicted of a felony and remain in actual confinement, on probation, on parole or under other court supervision.” The ABA’s goal, as demonstrated by the report, is to include within jury service, felons who have served their time and completed their sentencing requirements. California has the opportunity to restore this civil right to thousands of its citizens and to practice true realignment by allowing ex-felons to reengage and reconnect within their communities through jury service. (See American Bar Association, Principles for Juries and Juries Trials-American Jury Project (2005).)

Aligning the state jury exclusion statute with the state Constitution. Along with felons, Article VII, Section 8(b) of the California Constitution currently excludes those convicted of bribery, perjury, forgery, malfeasance in office, or other “high crimes” from serving as jurors. However, the Code of Civil Procedure Section 203(a)(5), which outlines the types of convictions which exclude persons from being eligible to serve on a jury, only lists those persons convicted of malfeasance in office and those persons with a felony conviction. This bill will align the state Constitution with the statute defining juror eligibility by excluding those persons who have been convicted of perjury, forgery, bribery, malfeasance in office and other “high crimes.” (California Constitution, Article VII, Section 8(b).) “High crimes” are “those punishable offenses that only apply to high persons, that is, to public officials, those who, because of their official status, are under special obligations that ordinary persons are not under, and which could not be meaningfully applied or justly punished if committed by ordinary persons.” (Jon Roland, Meaning of High Crimes and Misdemeanors, Constitutional Society (1999).)

Different standards for the right to vote and the right to serve on a jury. Of the crimes listed above, the only ex-felons who will be excluded from jury service are those who have not completed probation, parole, post-release community supervision, or mandatory supervision for the conviction of a felony and those convicted of felonies involving moral turpitude. This language is distinct from the language in CCP Section 203, granting voting rights to ex-felons, which states that the person may exercise their right to vote so long as the person is “not in prison or on parole for the conviction of a felony.” A person who votes does so singularly, and is not required to stand in judgment of another person when exercising that right. With the changes occurring as our state institutes and supports realignment efforts, it seems prudent, when restoring the rights of ex-felons to serve as jurors, to ensure that all of the ex-felon’s sentencing requirements have been completed. This bill contains language to ensure that the ex-felon has, in fact, completed his or her sentence, as well as the term of his or her probation, parole, or post-release community supervision, or mandatory supervision.

ARGUMENTS IN SUPPORT: This bill enjoys support from a wide range of groups, including human rights organizations, reentry advocacy groups, community organizing networks, and defense attorneys. According to the sponsor, A New Way of Life Re-Entry Project:

At any given time in California, nearly 300,000 people are incarcerated for a felony conviction. The vast Majority will complete their sentences and return to their communities-and will join hundreds of thousands of people who are preemptively barred from jury service. A disproportionate percentage of these people are African-American and Latino.

The blanket exclusion of people with felony convictions-without the individualized consideration afforded to other citizens during voir dire-perpetuates harmful and inflexible generalizations about the characteristics of “felons” and the place of people with felony convictions in society, and disenfranchises entire demographics of people, with 1 in every 6 African American man incarcerated nationwide.

ARGUMENTS IN OPPOSITION: Opponents of the bill include local and state law enforcement agencies. The Los Angeles County Professional Peace Officers Association, among others, writes:

Convicted felons possess a very real and frequently hostile bias against the laws of our state and especially against dedicated peace officers who have sworn to enforce those laws. These felons are likely to exhibit their anti-police bias in criminal cases and in civil cases where officers are either witnesses or a party.

We are concerned for the safety of the non-criminal jurors who would be required by law to remain in close quarters for extended periods of time with repeat, violent offenders.

Our society does not mandate its citizens live next-door [to] violent offenders. Nor does it require employers to hire or landlords to rent to dangerous criminals. However, AB 324 would force law-abiding citizens into potentially dangerous situations in shuttered jury rooms and during sequester.

Previous Related Legislation. AB 1401 (Committee on Judiciary) 2013, which was vetoed by the governor, would have allowed lawful permanent immigrants or citizens of the United States to serve on juries. Governor Brown cited in his veto message that jury duty, like voting is “quintessentially a prerogative and responsibility of citizenship. This bill would permit lawful permanent residents who are not citizens to serve on a jury, I don’t think that’s right.” None of the concerns about AB 1401 are applicable to this bill.

REGISTERED SUPPORT / OPPOSITION:

Support

A New Way of Life Re-Entry Project (co-sponsor)

Legal Services for Prisoners with Children (co-sponsor)

A New Path

Asian Americans Advancing Justice

California Public Defenders Association

California United for a Responsible Budget

Courage Campaign

Ella Baker Center for Human Rights

Families to Amend California’s Three Strikes

Justice Not Jails

Lawyers’ Committee For Civil Rights of the San Francisco Bay Area

New Covenant Church

One Individual

PICO California

Root & Rebound

Rubicon Programs

San Francisco Tenants Union

Students for Sensible Drug Policy, Whittier Law School

The Greenlining Institute

Opposition

California State Sheriffs’ Association

Fraternal Order of Police

Long Beach Police Officers Association

Los Angeles County Professional Peace Officers Association

Santa Ana Police Officers Association

Sacramento County Deputy Sheriffs’ Association

Analysis Prepared by: Khadijah Hargett / JUD. / (916) 319-2334