The Trial Jury Selection and Management Act prohibits persons who have been convicted of malfeasance in office or a felony, and whose civil rights have not been restored, from being eligible and qualified to be a prospective trial juror.

This bill would delete the prohibition relative to persons who have been convicted of a felony from being eligible and qualified to be a prospective trial juror, and instead would prohibit persons while they are incarcerated in any prison or jail, persons who have been convicted of a felony and are currently on parole, postrelease community supervision, felony probation, or mandated supervision for the conviction of a felony, and persons who are currently required to register as a sex offender based on a felony conviction. The bill would state that the provisions relating to the eligibility and qualification to be a prospective trial juror are severable.

 UNFINISHED BUSINESS  

Bill No: SB 310

Author: Skinner (D)

Amended: 8/26/19

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-1, 4/2/19

AYES: Skinner, Bradford, Jackson, Mitchell, Wiener

NOES: Morrell

NO VOTE RECORDED: Moorlach

SENATE JUDICIARY COMMITTEE: 5-2, 4/23/19

AYES: Jackson, Allen, Caballero, Monning, Wieckowski

NOES: Borgeas, Jones

NO VOTE RECORDED: Stern, Umberg

SENATE APPROPRIATIONS COMMITTEE: 4-2, 5/16/19

AYES: Portantino, Bradford, Hill, Wieckowski

NOES: Bates, Jones

SENATE FLOOR: 27-10, 5/28/19

AYES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Dodd, Durazo, Galgiani, Glazer, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Pan, Portantino, Roth, Rubio, Skinner, Stern, Wieckowski, Wiener

NOES: Bates, Borgeas, Chang, Grove, Jones, Moorlach, Morrell, Nielsen, Stone, Wilk

NO VOTE RECORDED: Umberg

ASSEMBLY FLOOR: 47-26, 9/9/19 - See last page for vote

SUBJECT: Jury selection

SOURCE: A New Way of Life

ACLU of California

All of Us or None

California Public Defenders Association

Legal Services for Prisoners with Children

DIGEST:

This bill permits a person with a felony conviction, who is not incarcerated in prison or jail, to serve on a jury.

Assembly Amendments

make a person who is currently on parole, postrelease community supervision, felony probation, or mandated supervision for the conviction of a felony ineligible for jury service, make a person who is currently required to register as a sex offender pursuant to Section 290 of the Penal Code based on a felony conviction ineligible for jury service, adopt a severability clause, and eliminate provisions related to jury source lists.

ANALYSIS:

Existing law:

1. Provides that a defendant has a right to trial by a jury drawn from a representative cross section of the community, guaranteed by the Sixth Amendment of the United States Constitution and article I, section 16, of the California Constitution. (Rubio v. Superior Court (1979) 24 Cal.3d 93, 97; see also People v. Garcia (2000) 77 Cal.App.4th 1269, 1274 & fn.3.)
2. Requires that all persons selected for jury service be selected at random, from a source or sources inclusive of a representative cross section of the population of the area served by the court. Provides that sources may include, in addition to other lists, customer mailing lists, telephone directories, or utility company lists. (Code Civ. Pro., § 197, subd. (a).)
3. Provides that the list of registered voters and the Department of Motor Vehicles (DMV) list of licensed drivers and identification cardholders residing within the area served by the court, are appropriate source lists for selection of jurors. Provides that these two source lists, when substantially purged of duplicate names, be considered inclusive of a representative cross section of the population. (Code Civ. Pro., § 197, subd. (b).)
4. Provides that all persons are eligible and qualified to be prospective trial jurors, except the following:
5. Persons who are not citizens of the United States.
6. Persons who are less than 18 years of age.
7. Persons who are not domiciliaries of the State of California, as specified.
8. Persons who are not residents of the jurisdiction wherein they are summoned to serve.
9. Persons who have been convicted of malfeasance in office or a felony, and whose civil rights have not been restored.
10. Persons who are not possessed of sufficient knowledge of the English language, provided that no person shall be deemed incompetent solely because of the loss of sight or hearing in any degree or other disability which impedes the person’s ability to communicate or which impairs or interferes with the person’s mobility.
11. Persons who are serving as grand or trial jurors in any court of this state.
12. Persons who are the subject of conservatorship. (Code Civ. Pro., § 203, subd. (a).)
13. Defines a felony as a crime that is punishable with death, by imprisonment in the state prison, or notwithstanding any other provision of law, by imprisonment in a county jail under the provisions of Section 1170 (h). (Pen. Code, § 17.)
14. Requires the jury commissioner to maintain records regarding selection, qualification, and assignment of prospective jurors. Requires the jury commissioner to maintain records providing a clear audit trail regarding a juror’s attendance, jury fees, and mileage. Provides that all records and papers maintained or compiled by the jury commissioner in connection with the selection or service of a juror may be kept on an electronic or microfilm medium and requires such records to be preserved for at least three years after the list used in their selection is prepared, or for any longer period ordered by the court or the jury commissioner. (Code Civ. Pro., § 207.)

This bill:

1. Removes language from existing law making persons who have been convicted of a felony subject to an exclusion from jury service.
2. Provides that a person is ineligible for jury service while incarcerated in any prison or jail.

Background

Exclusion of Felons from Jury Service

Forty-nine states, the District of Columbia, and the federal government, have some type of restriction on a convicted felon’s eligibility for jury service. (Binnall, Summonsing Criminal Desistance: Convicted Felons’ Perspective on Jury Service (2017) 43 Law and Social Inquiry 4.) Maine is the only state which allows felons to serve on a jury without restriction. (14 M.R.S. § 1211 (2017).)

Among the historical justifications for excluding felons from jury service are the belief that these individuals lack character and harbor an inherent bias, both against the government and in favor of the defendant. These justifications have been challenged by researchers. For example, a recent study which derived data from interviews with former and prospective jurors in Maine who had felony convictions found that inclusion in the jury process found that “convicted felons approach[ed] jury service in a thoughtful, considerate fashion.” (Binnall, Summonsing Criminal Desistance: Convicted Felons’ Perspective on Jury Service (2017) 43 Law & Social Inquiry 4, 20-21.) The results of the study also suggest that “juror eligibility facilitates changes in convicted felons’ self-concepts, promoting prosocial identity transformation, tempering the stigma of a felony conviction, and prompting the discovery of self-worth.” (Id. at 21.) The findings of another study suggest that convicted felons’ pretrial bias as a group is not significantly different from other groups of non-felon jurors. (See Binnall, A Field Study of the Presumptively Biased: Is There Empirical Support for Excluding Convicted Felons from Jury Service? (2014) 36 Law & Policy 1.)

Arguably, the voir dire process should resolve concerns regarding a prospective juror’s bias. Voir dire is a formal, pre-trial examination that is used to determine the qualification and suitability of each potential juror. The process is intended to help the parties identify and remove jurors who are biased and would not serve well on a particular case due to the facts and evidence involved in the case. Through questioning by the parties’ attorneys, the voir dire process reveals prospective jurors’ experiences and beliefs that may affect their perception of the parties and evidence.

The sponsors of this bill also argue that excluding felons from jury service has a disproportionate impact on African Americans, specifically African American men, given their overrepresentation in the criminal justice system. According to the Public Policy Institute of California:

At the end of 2016, 29% of the male prisoners in state prisons were African American, while only 6% of the state’s male residents are African American. The incarceration rate for African American men is 4,180 per 100,000. White men are imprisoned at a rate of 420 per 100,000, and imprisonment rates for Latino men and men of other races are 1,028 and 335, respectively. (<https://www.ppic.org/publication/californias-changing-prison-population/ [as of Mar. 26, 2019].)

A 2011 study examining felon jury exclusion in Georgia underscores the racial disparity in jury service that results from the exclusion of felons from jury service. (Wheelock, A Jury of One’s “Peers”: The Racial Impact of Felon Jury Exclusion in Georgia (2011) 32 The Justice System Journal 335.) The study concluded:

[O]ver half of African-American men in certain counties are disqualified from jury service solely due to their felon status. Large counties with significant African-American populations, such as Fulton County, might be able to withstand excluding large proportions of a specific subgroup without a significant impact on the racial composition of jury lists. There remains a large pool of eligible African-American men that can replace the ones that find themselves disqualified due to their felon status. However, the ability of counties with relatively small African-American populations and high levels of exclusion, such as Whitfield County, which excludes nearly 64 percent of its approximate 1,300 African-American male residents, to field a representative jury list would seem to be severely hindered by felon jury exclusion. (Id. at p. 352.)

In California, the full restoration of a person’s civil rights—which would enable a person with a felony conviction to serve on a jury—can only be done via a gubernatorial pardon. (Pen. Code, § 4852.17.) It is worth noting that there is no right to or guarantee that a pardon applicant will receive one.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Assembly Appropriations Committee:

Minor and absorbable costs (GF/Trial Court Trust Fund) in increased workload to Judicial Council to incorporate eligible convicted felons in the list of individuals eligible to serve on a jury. Minor and absorbable costs to Judicial Council to update juror questionnaires to eliminate language prohibiting all felons from serving on juries.

SUPPORT: (Verified 9/9/19)

A New Way of Life (co-source)

All of Us of None (co-source)

American Civil Liberties Union of California (co-source)

California Public Defender’s Association (co-source)

Legal Services for Prisoners with Children (co-source)

California Employment Lawyers Association

Californians United for a Responsible Budget

East Bay Community Law Center

Ella Baker Center for Human Rights

Fair Chance Project

Friends Committee on Legislation of California

Lawyers’ Committee for Civil Rights of the San Francisco

Root and Rebound

San Francisco Public Defender’s Office

Tides Advocacy

OPPOSITION: (Verified 9/9/19)

None received

ASSEMBLY FLOOR: 47-26, 9/9/19

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bloom, Bonta, Burke, Calderon, Carrillo, Chau, Chiu, Chu, Cooley, Daly, Eggman, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Levine, Limón, Low, McCarty, Medina, Mullin, Nazarian, Quirk, Reyes, Luz Rivas, Robert Rivas, Blanca Rubio, Santiago, Mark Stone, Ting, Weber, Wicks, Wood, Rendon

NOES: Bigelow, Boerner Horvath, Brough, Cervantes, Choi, Cunningham, Diep, Flora, Fong, Gallagher, Gray, Kiley, Lackey, Mathis, Mayes, Melendez, Muratsuchi, Obernolte, O'Donnell, Patterson, Petrie-Norris, Ramos, Salas, Smith, Voepel, Waldron

NO VOTE RECORDED: Chen, Cooper, Frazier, Maienschein, Quirk-Silva, Rodriguez

Prepared by: Stephanie Jordan / PUB. S. /

9/9/19 22:48:18

**** END ****

SENATE THIRD READING

STR Bill Id:SB 310

Author:(Skinner)

As Amended Ver:August 26, 2019

Majority vote

SUMMARY:

Permits, as specified, persons formerly convicted of a felony to serve on trial juries.

Major Provisions

1. Eliminates, generally, the prohibition on persons who have been convicted of a felony from serving on a trial jury.
2. Provides that persons are ineligible to serve on a trial jury while they are incarcerated in prison or jail, on the basis of a specified felony convictions, or while serving on parole, postrelease community supervision, felony probation, or mandated supervision for the conviction of a felony.
3. Adopts a severability clause.

COMMENTS:

Existing law requires California courts to provide litigants with a jury that represents the community in which a case is being adjudicated (See, e.g., Rubio v. Superior Court (1979) 24 Cal.3d 93, 97; People v. Garcia (2000) 77 Cal.App.4th 1269, 1274 & fn.3). Despite these goals, the existing law regarding the generation of California's potential juror pools permits the creation of juror lists that omit critical portions of the population and results in juries that do not reflect the diversity of California. To ensure that California's trial juries better reflect the diversity of this state, this bill provides former felons with the ability to serve on a jury.

Existing law provides several categories of persons who are ineligible for jury service, including minor children, non-residents and non-citizens. Additionally, existing law deems persons with a felony conviction to be ineligible for service on juries. For certain segments of the state's population, this prohibition renders a large percentage of persons ineligible for jury service. For example, despite California's recent efforts to reform the criminal justice system, one in three African American men will be convicted of a felony at some point in their lives (Sarah K. S. Shannon et al., The Growth, Scope, and Spatial Distribution of People With Felony Records in the United States, 1948-2010, United States Census Bureau (2017), Table S9). Therefore, it would appear that categorically denying over thirty percent of a demographic group the ability to serve on a jury significantly limits a litigant from that group the ability to try a case before a jury of their peers and disproportionately excludes that segment of the population from the vital democratic institution of jury service.

Recognizing the disproportionate impact of criminal justice polices on minority communities, this bill would remove the prohibition on ex-felons serving on juries. This provision recognizes that, the nearly two million ex-felons residing in California should not be wholly prevented from participating in society's institutions simply due to a prior bad action for which the person has paid their debt to society.

According to the Author:

Juries are the backbone of the justice system. The concept that people can have their cases heard by their peers – is a primary source of the justice system's legitimacy.

SB 310 will promote fairness and legitimacy in California's jury system by ensuring a more accurate cross section of the community by expanding the list of eligible jurors to include state tax filers and allowing a person with a prior felony conviction to serve on a jury as long as they are not currently incarcerated. While SB 310 would remove the felony prohibition, the bill fully preserves the existing right of Judges, District Attorneys, and the defense counsels to dismiss any potential jurors from a jury pool through the voir dire process.

Arguments in Support:

This bill is co-sponsored by the American Civil Liberties Union and the California Public Defenders Association and is supported by a coalition of criminal justice reform and legal organizations. The American Civil Liberties Union writes in support:

Current law for jury service eligibility dates back to a very different time in California's history: a time during which the ideal for juries was a group comprised of "key men" from the community, a proxy for white males. The exclusion of people of color from juries has its roots in pre-Civil War America. Current law deprives California courts hundreds of thousands of prospective jurors, it deprives civil and criminal litigants of their right to a jury compromising a fair cross section of the community and it sends the damaging message to many people of color and those with a felony conviction that their voice, experience, and judgment are worthless in civil society. California can do better.

Arguments in Opposition:

This bill is opposed by several law enforcement agencies. In opposition the Riverside Sheriffs' Association writes:

Convicted felons possess a very real and demonstrated disregard for the laws of our state and especially for the 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 a witnesses or a parties to the suit.

We are also 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 violent offenders. Nor does it require employers to hire nor landlords to rent to dangerous criminals. However, SB 310 would force law-abiding citizens into close proximity with violent offenders, creating dangerous situations in closed jury rooms and during sequester.

Law-abiding jurors have agreed to fulfill their civic duty to serve. They have NOT agreed to spend the day, weeks or even months in close quarters with convicted gang-bangers.

FISCAL COMMENTS:

According to the Assembly Appropriations analysis, minor and absorbable costs (General Fund/Trial Court Trust Fund) in increased workload to Judicial Council to incorporate eligible convicted felons in the list of individuals eligible to serve on a jury. Minor and absorbable costs to Judicial Council to update juror questionnaires to eliminate language prohibiting all felons from serving on juries.

VOTES:

SENATE FLOOR: 27-10-1

YES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Dodd, Durazo, Galgiani, Glazer, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Pan, Portantino, Roth, Rubio, Skinner, Stern, Wieckowski, Wiener

NO: Bates, Borgeas, Chang, Grove, Jones, Moorlach, Morrell, Nielsen, Stone, Wilk

ABS, ABST OR NV: Umberg

ASM JUDICIARY: 7-2-3

YES: Mark Stone, Chau, Chiu, Gonzalez, Holden, Kalra, Reyes

NO: Kiley, Obernolte

ABS, ABST OR NV: Gallagher, Maienschein, Petrie-Norris

ASM APPROPRIATIONS: 10-5-3

YES: Gonzalez, Bloom, Bonta, Carrillo, Chau, Eggman, Gabriel, Eduardo Garcia, Quirk, Robert Rivas

NO: Bigelow, Brough, Fong, Obernolte, Petrie-Norris

ABS, ABST OR NV: Calderon, Diep, Maienschein

UPDATED:

VERSION: August 26, 2019

CONSULTANT: Nicholas Liedtke / JUD. / (916) 319-2334 FN: 0001537

Date of Hearing: August 28, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

SBPCA Bill Id:SB 310

Author:(Skinner) – As Amended Ver:August 26, 2019

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill permits a felon to serve on a jury if the person is not on any type of supervision and not required to register as a sex offender because of a felony conviction.

FISCAL EFFECT:

Minor and absorbable costs (GF/Trial Court Trust Fund) in increased workload to Judicial Council to incorporate eligible convicted felons in the list of individuals eligible to serve on a jury. Minor and absorbable costs to Judicial Council to update juror questionnaires to eliminate language prohibiting all felons from serving on juries.

COMMENTS:

1. Purpose. According to the author:

SB 310 will promote fairness and legitimacy in California’s jury system by ensuring a more accurate cross section of the community by expanding the list of eligible jurors to include state tax filers and allowing a person with a prior felony conviction to serve on a jury as long as they are not currently incarcerated.

1. Jury Service. Existing law provides several categories of persons who are ineligible for jury service, including minor children, non-residents and non-citizens. Additionally, existing law deems persons with a felony conviction to be ineligible for service on juries. For certain segments of the state’s population, this prohibition renders a large percentage of persons ineligible for jury service. For example, despite California’s recent efforts to reform the criminal justice system, one in three African American men will be convicted of a felony at some point in their lives. Denying over 30% of a demographic group the ability to serve on a jury significantly limits a litigant from that group the ability to try a case before a jury of their peers and disproportionately excludes that segment of the population from the vital democratic institution of jury service.
   
2. Support. According to the ACLU of California:

Current law deprives California courts hundreds of thousands of prospective jurors, it deprives civil and criminal litigants of their right to a jury compromising a fair cross section of the community and it sends the damaging message to many people of color and those with a felony conviction that their voice, experience, and judgment are worthless in civil society.

5) Opposition. According to the California District Attorneys Association:

We believe that the exclusion of felons from jury service protects the integrity of the process, particularly in criminal trials. [The] inclusion of felons would jeopardize the impartiality of criminal juries.

Analysis Prepared by: Kimberly Horiuchi / APPR. / (916) 319-2081

Date of Hearing: June 25, 2019

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

SBPCA Bill Id:SB 310

Author:(Skinner) – As Amended Ver:May 17, 2019

SENATE VOTE: 27-10

SUBJECT: Jury selection

KEY ISSUES:

1. SHOULD THE DATA SOURCES THAT ARE USED TO CREATE LISTS FOR THE SELECTION OF POTENTIAL TRIAL JURORS AND CONSIDERED BY LAW TO BE REPRESENTATIVE OF THE POPULATION BE EXPANDED TO INCLUDE THE LIST OF STATE TAX FILERS WITHIN A JURISDICTION?
2. SHOULD PERSONS PREVIOUSLY CONVICTED OF A FELONY BE PERMITTED TO SERVE ON A JURY SO LONG AS THEY ARE NOT PRESENTLY INCARCERATED?

SYNOPSIS

The United States and California constitutions require that criminal defendants be provided a trial before a jury that consists of a representative cross-section of the community. In practice, generating a pool of jurors who represent a proper cross-section of the community is no easy task. Presently, California courts are permitted to utilize a wide range of sources when generating the jury pool. In order to assist courts in the creation of the jury pool, existing law provides that a jury pool derived from the list of registered voters in a locality, in addition to lists of state identification card holders from the Department of Motor Vehicles, is statutorily considered to be a representative list of the population. However, data suggests that these lists may be inadequate and may significantly underrepresent persons from lower income communities of color. When coupled with the existing law’s prohibition on former felons serving on juries, data suggests that the existing system for generating potential jurors omits millions of Californians of color from across the state from eligibility for jury service. Thus, the existing law is essentially denying litigants from lower income communities of color the ability to litigate issues before a jury that is truly made up of their peers and denying those same communities the opportunity to participate in the vital democratic institution of jury service.

Recognizing that a jury representing the community at-large is critical to the integrity of the justice system, this bill makes several modest yet vitally important reforms to the existing process for generating lists of potential jurors. First, this bill would eliminate the categorical prohibition on former felons serving on juries. Secondly, this bill would expand the sources of data that if utilized to generate a list of eligible jurors would be considered by statute to be representative of the community to include the list of state tax filers in the jurisdiction.

This bill is co-sponsored by the American Civil Liberties Union and the California Public Defenders Association and is supported by a broad coalition of civil justice organizations and advocates representing litigants and other users of the courts. They argue that this bill represents another step in California’s ongoing efforts to enact criminal justice reform and ensure fair and equitable access to state courts. This bill is opposed by the California District Attorneys Association and several individual members of the organization, law enforcement representatives, and several local elected officials. They contend that permitting felons to serve on juries will introduce significant anti-government bias into the courts. It should be noted that the existing voir dire procedures utilized by courts appear to successfully root out all kinds of biases in jurors. Furthermore, unlike the myriad of bills this Committee has heard in recent years, in which groups seek categorical exemptions from jury service, this bill would significantly increase the representative nature of the jury pool and advance the state’s goals of ensuring that juries truly represent the diversity of California.

SUMMARY: Expands the sources of data utilized by superior courts for trial jury selection and permits persons formerly convicted of a felony to serve on trial juries. Specifically, this bill:

1. Adds the list of state tax filers to the data sources that, if utilized by the superior court to generate a list of prospective jurors, are considered by statute to be a representative of a cross section of the population.
2. Eliminates the prohibition on persons who have been convicted of a felony from serving on a trial jury.
3. Provides that persons are ineligible to serve on a trial jury while they are incarcerated in prison or jail.

EXISTING LAW:

1. States that the policy of the State of California is that all persons selected for jury service shall be selected at random from the population of the area served by the court; that all qualified persons have an equal opportunity to be considered for jury service in the State; that all qualified persons have an obligation to serve as jurors when summoned; and that it is the responsibility of jury commissioners to manage all jury systems in an efficient, equitable, and cost-effective manner. (Code of Civil Procedure Section 191.)
2. Requires that all persons selected for jury service shall be selected at random, from sources that include a representative cross section of the population of the area served by the court. (Code of Civil Procedure Section 197 (a).)
3. Provides that the list of registered voters and the Department of Motor Vehicles’ list of licensed drivers and identification cardholders residing within the area served by the court shall be considered inclusive of a representative cross section of the population, as required pursuant to 2). (Code of Civil Procedure Section 197 (b).)
4. Requires the Department of Motor Vehicles to furnish the jury commissioner of each county with the current list of the names, addresses, and other identifying information of persons residing in the county who are age 18 years or older and who are holders of a current driver's license or identification card. (Code of Civil Procedure Section 197 (c).)
5. Presumes a person is eligible for jury service unless they:
   1. Are not citizens of the United States;
   2. Are under 18 years of age;
   3. Are not domiciliaries of the State of California, or residents of the jurisdiction wherein they are summoned to serve;
   4. Have been convicted of malfeasance in office or a felony, and whose civil rights have not been restored;
   5. Do not hold sufficient knowledge of the English language;
   6. Currently serve as a grand or trial juror in any court of this state; or
   7. Are currently in conservatorship. (Code of Civil Procedure Section 203.)
6. Provides that the jury commissioner shall randomly select jurors for jury panels to be sent to courtrooms for voir dire. (Code of Civil Procedure Section 219 (a).)
7. Provides that if a jury commissioner requires a person to complete a questionnaire, the questionnaire shall ask only questions related to juror identification, qualification, and ability to serve as a prospective juror. (Code of Civil Procedure Section 205 (a).)
8. Provides that a court may require a prospective juror to complete such additional questionnaires as may be deemed relevant and necessary for assisting in the voir dire process or to ascertain whether a fair cross section of the population is represented as required by law, if such procedures are established by local court rule. (Code of Civil Procedure Section 205 (c).)

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

COMMENTS: Existing law requires California courts to provide litigants with a jury that represents the community in which a case is being adjudicated. (See, e.g., Rubio v. Superior Court (1979) 24 Cal.3d 93, 97; People v. Garcia (2000) 77 Cal.App.4th 1269, 1274 & fn.3.) Despite these goals, the existing law regarding the generation of California’s potential juror pools permits the creation of juror lists that omit critical portions of the population and results in juries that do not reflect the diversity of California. To ensure that California’s trial juries better reflect the diversity of this state, this bill provides former felons with the ability to serve on a jury and broadens the sources of information that are considered representative of the population for the purpose of compiling trial jury service lists. In support of this bill, the author states:

Juries are the backbone of the justice system. The concept that people can have their cases heard by their peers – is a primary source of the justice system’s legitimacy.

The widespread use of the Department of Motor Vehicle and registered voter lists misses a large swath of the community, excluding people from service simply because they were never asked. Current law also excludes from jury service any person who has a previous felony conviction. This conviction can be as minor as a graffiti conviction when they were 18, or a marijuana conviction from high school. This exclusion effectively eliminates as many as 30% of California’s African-American male residents from ever serving as a juror.

SB 310 will promote fairness and legitimacy in California’s jury system by ensuring a more accurate cross section of the community by expanding the list of eligible jurors to include state tax filers and allowing a person with a prior felony conviction to serve on a jury as long as they are not currently incarcerated. While SB 310 would remove the felony prohibition, the bill fully preserves the existing right of Judges, District Attorneys, and the defense counsels to dismiss any potential jurors from a jury pool through the voir dire process.

Throughout history trial juries have been utilized to protect democratic institutions and ensure that the people can check the power of the state. Although the United States Constitution was the first document to formally codify the right to a trial by jury, the use of panels compromised of members of the public to adjudicate legal matters long predates the founding of the United States. Rather, the American tradition of trial juries has roots in early Nordic influences on the English Common Law. Norway long utilized courts comprised of “laugrettomadr,” or lawmen, who were citizens nominated from various districts to hear cases of national importance. During the Norman Conquest, these traditions took hold in England. However, as the English legal scholar Blackstone noted, trial by jury in England is a privilege, not a right. Nonetheless, the use of jury trials became an established practice in the American colonies.

Seeking to maintain royal order in North America, colonial juries were frequently made up of colonists loyal to the English monarch. However, as the interests of the American colonists and the English monarch began to diverge in the mid-1700s, colonial attorneys sought to exclude persons perceived as biased from juries. Following the widely publicized trial of John Peter Zenger for seditious libel in 1735, the legislature of the Massachusetts Bay Colony passed the America’s first jury selection law, removing the monarch’s control of the jury selection process and granting sole control of jury selection to the colony’s courts. The Massachusetts courts then developed a system to select jury pools encompassing all land-owning men within the colony. Believing that the Massachusetts law provided too much control over the questioning and selection of jurors to the people, the English Parliament passed a law restoring full control of jury selection in the colonies to the crown. (Hans, Valerie P., and Neil Vidmar. Judging the Jury. Perseus, 2001.)

The pro-monarch juries of the pre-Revolutionary period convinced early Americans of the need for unbiased juries to handle legal matters as a check on unrestrained government power. To protect these beliefs, the jury process was codified in the Fifth, Sixth, and Seventh Amendments to the United States Constitution, enshrining the American notion that democratic deliberation, “by jurors of different backgrounds and perspectives, to reach consensus through debate and discussion” was a right guaranteed to all Americans. (Robert P. Burns, The History and Theory of the American Jury (1995) 83 Cal. L.Rev. 1477.)

Throughout American history jury participation has, generally, been expanded to better reflect the community as a whole. Unlike England, which dramatically scaled back the use of juries due to the lack of men available for jury service during World War I, the United States has significantly broadened the pool of potential jurors throughout its history. While early American juries were limited to white, land-owning men, as civil and voting rights expanded, so did eligibility for jury service, albeit slowly. Not until the passage of the Federal Civil Rights Act of 1875 (now codified at 18 USC Section 243) did Congress formally require African Americans to be included in the jury pool for federal cases. The first record of women serving on a trial jury was in the Wyoming Territory in 1870, although that right was removed upon the Territory obtaining statehood. As late as 1961, the U.S. Supreme Court held that a “woman is still regarded as the center of home and family life. We cannot say that it is constitutionally impermissible for a State . . . to conclude that a woman should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities.” (Hoyt v. Florida (1961) 368 U.S. 57.) The Hoyt decision was not formally overturned until 1975.

California law has long held that a broad pool of potential jurors is needed to ensure fairness in the legal process. California expanded jury service faster than the nation as a whole such that by 1975, the only groups exempt from jury duty were those that the Legislature believed worked in occupations that provided a valuable public service that should not be interrupted by a requirement of jury service. Those occupations included the legislators themselves, members of Congress, military personnel, peace officers, local office holders, attorneys, clergy, teachers, doctors, dentists, merchant seamen, telephone and telegraph operators, firefighters, railroad employees, faith healers, and cloister monks and nuns. In 1975, AB 681 (Siegler, Chap. 593, Stats. 1975) replaced the remaining jury duty exemptions with a generic provision allowing any person to be excused from jury duty for undue hardship on themselves or the public. Although several categorical exemptions to jury service have been granted since the 1970s, the Legislature has long sought to ensure that California’s trial juries accurately reflect society at large.

Despite the state’s duty to ensure that trial juries reflect the community, several populations are under-represented on juries chosen by existing methods for empaneling juries. Currently, existing law provides several categories of persons who are ineligible for jury service, including minor children, non-residents and non-citizens. Additionally, existing law deems persons with a felony conviction to be ineligible for service on juries. For certain segments of the state’s population, this prohibition renders a large percentage of persons ineligible for jury service. For example, despite California’s recent efforts to reform the criminal justice system, one in three African American men will be convicted of a felony at some point in their lives. (Sarah K. S. Shannon et al., The Growth, Scope, and Spatial Distribution of People With Felony Records in the United States, 1948-2010, United States Census Bureau (2017), Table S9.) Therefore, it would appear that categorically denying over thirty percent of a demographic group the ability to serve on a jury significantly limits a litigant from that group the ability to try a case before a jury of their peers and disproportionately excludes that segment of the population from the vital democratic institution of jury service. Across all demographic groups, the supporters of this bill suggest that the prohibition on ex-felons serving on juries categorically excludes nearly two million Californians from jury service, despite the fact that these persons have completed their sentences and have paid their debt to society.

Furthermore, the existing law provides that if a court utilizes the list of registered voters and the list of those possessing a driver’s license or state identification card issued by the Department of Motor vehicles to compile localized lists of persons who are eligible for jury service, then the resulting jury pool would be considered sufficiently representative of society. The exclusive use of these lists may result in the creation of a jury pool which further misrepresents the demographic makeup of California. According to the Public Policy Institute of California, approximately 75 percent of eligible adults are registered to vote in California. (Mark Baldassare, et al., California’s Likely Voters- Just the Facts, Public Policy Institute of California (2018) https://www.ppic.org/publication/californias-likely-voters/.) However, within the ranks of eligible voters stark demographic differences emerge. For example, while only 22 percent of eligible white Californians fail to register to vote, 56 percent of eligible Latinos do not register to vote. (Ibid.) Accordingly, the use of voter data in developing jury lists is likely to result in a significant underrepresentation of Latino jurors. Additionally, lower income Californians tend to register to vote at far lower rates than their wealthier peers. Again, the Public Policy Institute of California notes that while 16 percent of those making more than $80 thousand annually are unregistered, 64 percent of those making less than $40 thousand annually have not registered to vote. (Ibid.) Income disparities also impact the rate at which people apply for government issued identification. Currently, the Department of Motor Vehicles charges $36 for a driver’s license and $31 for a state identification card. Although the California Department of Motor Vehicles waives certain fees for seniors seeking identification, nationally, evidence suggests that minorities hold driver’s licenses at rates that are far lower than their white peers. (Alana Semuels, No Driver's License, No Job, The Atlantic (Jun. 15, 2016).)

Given the current data sources for developing juror lists and the existing prohibition on jury service by formerly incarcerated persons, it would appear that California’s existing procedures for developing jury pools are likely to result in the selection of juries that are richer and whiter than California’s population at large. Accordingly, the data casts significant doubt as to whether minority litigants are truly able to obtain a jury of their peers under California’s existing system for generating eligible juror lists.

This bill. In order to strengthen the diversity of California’s trial juries and ensure that the jury pool is an accurate reflection of California’s diverse population, this bill takes several steps to increase the size of the jury pool. First, the bill provides that state tax filing information, in addition to information from voter records and the Department of Motor Vehicles, is considered to be a representative of a cross section of the population. Secondly, recognizing the disproportionate impact of criminal justice polices on minority communities, this bill would remove the prohibition on ex-felons serving on juries. This provision recognizes that, as a class, the nearly two million ex-felons residing in California should not be wholly prevented from participating in society’s institutions simply due to a prior bad action for which the person has paid their debt to society.

Expanding the sources of data utilized to generate juror lists will, ideally, remedy several deficiencies in the existing list. As noted above, existing law presumes that building jury lists using voter data and Department of Motor Vehicle records is representative of the population at large. As further noted, this data appears to leave large segments of the population significantly undercounted. Thus, this bill would add the use of lists of state tax filers to the data used to develop the jury service rolls.

Unlike voting or driving, nearly every California adult is required to file some form of a tax return with the state. By focusing the bill on tax filers as an additional source of information, this bill would appear to encompass persons who may or may not have actually paid taxes. For example, a person qualifying for California’s Earned Income Tax credit may not actually pay any tax, however, that person would nonetheless be required to file a tax return. Additionally, the filing of taxes is one of the few obligations in life that applies to nearly every adult, as even persons on Social Security or receiving unemployment assistance must file taxes. In opposition to this bill, the California District Attorneys Association argues that expanding the sources of data for selecting jury pools considered a representative of a cross section of the population would impose costs and hardship on jury commissioners and courts across the state. It should be noted that such concerns have not been raised to this Committee by either the Judicial Council on behalf of California’s courts, or by any of the state agencies responsible for tax collection. Furthermore, the state is legally obligated to ensure that a jury is reflective of the community at-large. Given the defects in the existing system for generating the jury pool, any such costs appear justified.

By removing the prohibitions on ex-felons serving on juries, this bill advances California’s successful efforts to promote restorative justice. Recognizing the disproportionately large number of minorities who can be classified as former felons, this bill removes the prohibition on ex-felons serving on juries. Such persons are made eligible for jury service under this bill, and only those who are presently incarcerated would remain ineligible. Despite the impacts on minority communities, this bill is opposed by several law enforcement organizations. Some within the opposition coalition rely upon antiquated notions about convicted criminals, suggesting that they remain dangerous to society regardless of their prior crimes and efforts to rehabilitate themselves. In opposition to this measure, the Riverside Sheriffs’ Association states:

Convicted felons possess a very real and demonstrated disregard for the laws of our state and especially for the dedicated peace officers who have sworn to enforce those laws. We are also 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… creating dangerous situations in closed jury rooms and during sequester.

The supporters of this bill suggest that this viewpoint ignores statistical evidence of society’s goals of rehabilitating those serving time for prior bad acts. In support of the bill the Anti-Defamation League states:

Though society speaks of the need to rehabilitate individuals released from prison, collateral consequences ingrained in our laws can make this process extremely difficult in practice. Barring participation in a foundational civic duty – serving on a jury – is just one more impediment we put before men and women with felony records attempting to reintegrate into society.

Empirical research would seem to support the position of the supporters and undermine the rationale for excluding those convicted of a felony from serving. First, even after the enactment of realignment, the majority of felony arrests in California are for non-violent offenses. In fact, in 2016 the Public Policy Institute noted that nearly two-thirds of felony arrests were for non-violent offenses, including 11 percent for drug crimes and eight percent for bench warrants. (Lofstrom, et. al, New Insights into California Arrests- Trends, Disparities, and County Differences, Public Policy Institute of California (Dec. 2018).) Furthermore, one study found that “felon jury exclusion” is “an imprecise and perhaps unnecessary practice that may come at substantial costs.” (James M. Binnall, A Field Study of the Presumptively Biased: Is There Empirical Support for Excluding Convicted Felons from Jury Service? (2014) Vol. 36, No. 1, The University of Denver Law & Policy.)

It should be noted that in California, crime rates have consistently decreased or remained level even after the state began reforming its criminal justice system with the enactment of realignment in 2013. (Magnus Lofstrom & Steven Raphael, Realignment, Incarceration, and Crime Trends in California, Public Policy Institute of California (May 2015.) This would seem to suggest that although some felons, mostly non-violent, have been released from prison to reduce overcrowding they are not causing wild upticks in crime. Accordingly, one could easily surmise that, despite the concerns of the opposition, these Californians can safely serve on juries alongside their peers. To argue otherwise unnecessarily would demonize nearly two million Californians for prior actions for which they served their punishment, and, under existing laws and society’s notice of justice, are free to resume their lives.

Beyond recognizing that many former felons do not pose a significant danger to society, and ensuring that juries are more representative of the population as a whole, an expanded jury pool also would assist courts in the complex task of administering the jury system. California courts already utilize a one day/one trial model for jury service. Accordingly, jury commissioners must ensure that a sufficient number of jurors are brought in each week for voir dire to keep the court system functioning. Particularly in small counties, the court’s ability to generate sufficient panels for voir dire can be difficult and an insufficient jury pool increases the risk that a court may be forced to dismiss last-day criminal trials for failure to obtain enough jurors. Accordingly, the expansion of the jury pool proposed in this bill should assist courts in ensuring that a diverse pool of jurors is available for service in every case.

Existing voir dire processes are designed to detect bias in all types of potential jurors. In opposition to this measure the California District Attorneys Association argues that broadly permitting felons to serve on juries would create unnecessary risk of bias, particularly against the government who previously convicted them. Such anti-government biases may exist in any potential juror, and there is little evidence to suggest the existing voir dire process is not adequately identifying and removing these jurors. Furthermore, there is little evidence that a former felon could not fairly weigh the evidence presented on a crime that is wholly unrelated to their prior actions, and even less evidence that former felons would hold a bias when weighing the merits of a civil action.

Given the existing protections built into the legal system to root out biases, such concerns do not appear to justify continuing to categorically deny nearly two million Californians the ability to serve on a jury even after they served their sentences. Especially in light of the disproportionate impacts such exclusions impose on communities of color, this bill is critical to ensuring a properly representative pool of trial jurors in California.

ARGUMENTS IN SUPPORT: This bill is co-sponsored by the American Civil Liberties Union and the California Public Defenders Association and is supported by a coalition of criminal justice reform and legal organizations. Representative of the coalition, the American Civil Liberties Union writes in support:

Current law for jury service eligibility dates back to a very different time in California’s history: a time during which the ideal for juries was a group comprised of “key men” from the community, a proxy for white males. The exclusion of people of color from juries has its roots in pre-Civil War America. Current law deprives California courts hundreds of thousands of prospective jurors, it deprives civil and criminal litigants of their right to a jury compromising a fair cross section of the community and it sends the damaging message to many people of color and those with a felony conviction that their voice, experience, and judgment are worthless in civil society. California can do better.

ARGUMENTS IN OPPOSITION: This bill is opposed by a coalition of District Attorneys from across California. The California District Attorneys Association writes:

We believe that the exclusion of felons from jury service protects the integrity of the process, particularly in criminal trials. It is not hard to imagine someone who has been convicted of a felony, harboring bias against the State and with the court controlling much of the time and nature of the voir dire process, attorneys will have relatively little time to conduct individualized determinations of partiality. Thus, the inclusion of felons would jeopardize the impartiality of criminal juries.

Additionally, by removing the statutory declaration that the use of the statutorily prescribed records are sufficiently inclusive of a cross-section of the community, and by requiring individualized forms containing demographic information for every potential juror, SB 310 creates unnecessary uncertainty and raises the prospects of litigation over the constitutionality of each jury venire.

REGISTERED SUPPORT / OPPOSITION:

Support

American Civil Liberties Association (co-sponsor)

California Public Defenders Association (co-sponsor)

Anti-Defamation League

Anti-Recidivism Coalition

California Attorneys for Criminal Justice

California for Safety and Justice

Consumer Attorneys of California

Drug Policy Alliance

East Bay Community Law Center

Ella Baker Center for Human Rights

Friends Committee on Legislation in California

Lawyers Committee for Civil Rights

Legal Services for Prisoners with Children

NextGen California

Public Defender of the City and County of San Francisco, Manohar Raju

Root and Rebound Reentry Advocates

State Building and Construction Trades Council

Smart Justice California

Tides Advocacy

Opposition (unless amended)

Los Angeles County District Attorney's Office

Opposition

California District Attorneys Association

City of Placentia

Riverside Sheriffs’ Association

San Diego County District Attorney, Summer Stephen

Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334

Date of Hearing: June 18, 2019

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

SBPCA Bill Id:SB 310

Author:(Skinner) – As Amended Ver:May 17, 2019

SENATE VOTE: 27-10

SUBJECT: Jury selection

KEY ISSUES:

1. SHOULD THE DATA SOURCES THAT ARE USED TO CREATE LISTS FOR THE SELECTION OF POTENTIAL TRIAL JURORS AND CONSIDERED BY LAW TO BE REPRESENTATIVE OF THE POPULATION BE EXPANDED TO INCLUDE THE LIST OF STATE TAX FILERS WITHIN A JURISDICTION?
2. SHOULD PERSONS PREVIOUSLY CONVICTED OF A FELONY BE PERMITTED TO SERVE ON A JURY SO LONG AS THEY ARE NOT PRESENTLY INCARCERATED?

SYNOPSIS

The United States and California constitutions require that criminal defendants be provided a trial before a jury that consists of a representative cross-section of the community. In practice, generating a pool of jurors who represent a proper cross-section of the community is no easy task. Presently, California courts are permitted to utilize a wide range of sources when generating the jury pool. In order to assist courts in the creation of the jury pool, existing law provides that a jury pool derived from the list of registered voters in a locality, in addition to lists of state identification card holders from the Department of Motor Vehicles, is statutorily considered to be a representative list of the population. However, data suggests that these lists may be inadequate and may significantly underrepresent persons from lower income communities of color. When coupled with the existing law’s prohibition on former felons serving on juries, data suggests that the existing system for generating potential jurors omits millions of Californians of color from across the state from eligibility for jury service. Thus, the existing law is essentially denying litigants from lower income communities of color the ability to litigate issues before a jury that is truly made up of their peers and denying those same communities the opportunity to participate in the vital democratic institution of jury service.

Recognizing that a jury representing the community at-large is critical to the integrity of the justice system, this bill makes several modest yet vitally important reforms to the existing process for generating lists of potential jurors. First, this bill would eliminate the categorical prohibition on former felons serving on juries. Secondly, this bill would expand the sources of data that if utilized to generate a list of eligible jurors would be considered by statute to be representative of the community to include the list of state tax filers in the jurisdiction.

This bill is co-sponsored by the American Civil Liberties Union and the California Public Defenders Association and is supported by a broad coalition of civil justice organizations and advocates representing litigants and other users of the courts. They argue that this bill represents another step in California’s ongoing efforts to enact criminal justice reform and ensure fair and equitable access to state courts. This bill is opposed by the California District Attorneys Association and several local elected officials. They contend that permitting felons to serve on juries will introduce significant anti-government bias into the courts. It should be noted that the existing voir dire procedures utilized by courts appear to successfully root out all kinds of biases in jurors. Furthermore, unlike the myriad of bills this Committee has heard in recent years, in which groups seek categorical exemptions from jury service, this bill would significantly increase the representative nature of the jury pool and advance the state’s goals of ensuring that juries truly represent the diversity of California.

SUMMARY: Expands the sources of data utilized by superior courts for trial jury selection and permits persons formerly convicted of a felony to serve on trial juries. Specifically, this bill:

1. Adds the list of state tax filers to the data sources that, if utilized by the superior court to generate a list of prospective jurors, are considered by statute to be a representative of a cross section of the population.
2. Eliminates the prohibition on persons who have been convicted of a felony from serving on a trial jury.
3. Provides that persons are ineligible to serve on a trial jury while they are incarcerated in prison or jail.

EXISTING LAW:

1. States that the policy of the State of California is that all persons selected for jury service shall be selected at random from the population of the area served by the court; that all qualified persons have an equal opportunity to be considered for jury service in the State; that all qualified persons have an obligation to serve as jurors when summoned; and that it is the responsibility of jury commissioners to manage all jury systems in an efficient, equitable, and cost-effective manner. (Code of Civil Procedure Section 191.)
2. Requires that all persons selected for jury service shall be selected at random, from sources that include a representative cross section of the population of the area served by the court. (Code of Civil Procedure Section 197 (a).)
3. Provides that the list of registered voters and the Department of Motor Vehicles’ list of licensed drivers and identification cardholders residing within the area served by the court shall be considered inclusive of a representative cross section of the population, as required pursuant to 2). (Code of Civil Procedure Section 197 (b).)
4. Requires the Department of Motor Vehicles to furnish the jury commissioner of each county with the current list of the names, addresses, and other identifying information of persons residing in the county who are age 18 years or older and who are holders of a current driver's license or identification card. (Code of Civil Procedure Section 197 (c).)
5. Presumes a person is eligible for jury service unless they:
   1. Are not citizens of the United States;
   2. Are under 18 years of age;
   3. Are not domiciliaries of the State of California, or residents of the jurisdiction wherein they are summoned to serve;
   4. Have been convicted of malfeasance in office or a felony, and whose civil rights have not been restored;
   5. Do not hold sufficient knowledge of the English language;
   6. Currently serve as a grand or trial juror in any court of this state; or
   7. Are currently in conservatorship. (Code of Civil Procedure Section 203.)
6. Provides that the jury commissioner shall randomly select jurors for jury panels to be sent to courtrooms for voir dire. (Code of Civil Procedure Section 219 (a).)
7. Provides that if a jury commissioner requires a person to complete a questionnaire, the questionnaire shall ask only questions related to juror identification, qualification, and ability to serve as a prospective juror. (Code of Civil Procedure Section 205 (a).)
8. Provides that a court may require a prospective juror to complete such additional questionnaires as may be deemed relevant and necessary for assisting in the voir dire process or to ascertain whether a fair cross section of the population is represented as required by law, if such procedures are established by local court rule. (Code of Civil Procedure Section 205 (c).)

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

COMMENTS: Existing law requires California courts to provide litigants with a jury that represents the community in which a case is being adjudicated. (See, e.g., Rubio v. Superior Court (1979) 24 Cal.3d 93, 97; People v. Garcia (2000) 77 Cal.App.4th 1269, 1274 & fn.3.) Despite these goals, the existing law regarding the generation of California’s potential juror pools permits the creation of juror lists that omit critical portions of the population and results in juries that do not reflect the diversity of California. To ensure that California’s trial juries better reflect the diversity of this state, this bill provides former felons with the ability to serve on a jury and broadens the sources of information that are considered representative of the population for the purpose of compiling trial jury service lists. In support of this bill, the author states:

Juries are the backbone of the justice system. The concept that people can have their cases heard by their peers – is a primary source of the justice system’s legitimacy.

The widespread use of the Department of Motor Vehicle and registered voter lists misses a large swath of the community, excluding people from service simply because they were never asked. Current law also excludes from jury service any person who has a previous felony conviction. This conviction can be as minor as a graffiti conviction when they were 18, or a marijuana conviction from high school. This exclusion effectively eliminates as many as 30% of California’s African-American male residents from ever serving as a juror.

SB 310 will promote fairness and legitimacy in California’s jury system by ensuring a more accurate cross section of the community by expanding the list of eligible jurors to include state tax filers and allowing a person with a prior felony conviction to serve on a jury as long as they are not currently incarcerated. While SB 310 would remove the felony prohibition, the bill fully preserves the existing right of Judges, District Attorneys, and the defense counsels to dismiss any potential jurors from a jury pool through the voir dire process.

Throughout history trial juries have been utilized to protect democratic institutions and ensure that the people can check the power of the state. Although the United States Constitution was the first document to formally codify the right to a trial by jury, the use of panels compromised of members of the public to adjudicate legal matters long predates the founding of the United States. Rather, the American tradition of trial juries has roots in early Nordic influences on the English Common Law. Norway long utilized courts comprised of “laugrettomadr,” or lawmen, who were citizens nominated from various districts to hear cases of national importance. During the Norman Conquest, these traditions took hold in England. However, as the English legal scholar Blackstone noted, trial by jury in England is a privilege, not a right. Nonetheless, the use of jury trials became an established practice in the American colonies.

Seeking to maintain royal order in North America, colonial juries were frequently made up of colonists loyal to the English monarch. However, as the interests of the American colonists and the English monarch began to diverge in the mid-1700s, colonial attorneys sought to exclude persons perceived as biased from juries. Following the widely publicized trial of John Peter Zenger for seditious libel in 1735, the legislature of the Massachusetts Bay Colony passed the America’s first jury selection law, removing the monarch’s control of the jury selection process and granting sole control of jury selection to the colony’s courts. The Massachusetts courts then developed a system to select jury pools encompassing all land-owning men within the colony. Believing that the Massachusetts law provided too much control over the questioning and selection of jurors to the people, the English Parliament passed a law restoring full control of jury selection in the colonies to the crown. (Hans, Valerie P., and Neil Vidmar. Judging the Jury. Perseus, 2001.)

The pro-monarch juries of the pre-Revolutionary period convinced early Americans of the need for unbiased juries to handle legal matters as a check on unrestrained government power. To protect these beliefs, the jury process was codified in the Fifth, Sixth, and Seventh Amendments to the United States Constitution, enshrining the American notion that democratic deliberation, “by jurors of different backgrounds and perspectives, to reach consensus through debate and discussion” was a right guaranteed to all Americans. (Robert P. Burns, The History and Theory of the American Jury (1995) 83 Cal. L.Rev. 1477.)

Throughout American history jury participation has, generally, been expanded to better reflect the community as a whole. Unlike England, which dramatically scaled back the use of juries due to the lack of men available for jury service during World War I, the United States has significantly broadened the pool of potential jurors throughout its history. While early American juries were limited to white, land-owning men, as civil and voting rights expanded, so did eligibility for jury service, albeit slowly. Not until the passage of the Federal Civil Rights Act of 1875 (now codified at 18 USC Section 243) did Congress formally require African Americans to be included in the jury pool for federal cases. The first record of women serving on a trial jury was in the Wyoming Territory in 1870, although that right was removed upon the Territory obtaining statehood. As late as 1961, the U.S. Supreme Court held that a “woman is still regarded as the center of home and family life. We cannot say that it is constitutionally impermissible for a State . . . to conclude that a woman should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities.” (Hoyt v. Florida (1961) 368 U.S. 57.) The Hoyt decision was not formally overturned until 1975.

California law has long held that a broad pool of potential jurors is needed to ensure fairness in the legal process. California expanded jury service faster than the nation as a whole such that by 1975, the only groups exempt from jury duty were those that the Legislature believed worked in occupations that provided a valuable public service that should not be interrupted by a requirement of jury service. Those occupations included the legislators themselves, members of Congress, military personnel, peace officers, local office holders, attorneys, clergy, teachers, doctors, dentists, merchant seamen, telephone and telegraph operators, firefighters, railroad employees, faith healers, and cloister monks and nuns. In 1975, AB 681 (Siegler, Chap. 593, Stats. 1975) replaced the remaining jury duty exemptions with a generic provision allowing any person to be excused from jury duty for undue hardship on themselves or the public. Although several categorical exemptions to jury service have been granted since the 1970s, the Legislature has long sought to ensure that California’s trial juries accurately reflect society at large.

Despite the state’s duty to ensure that trial juries reflect the community, several populations are under-represented on juries chosen by existing methods for empaneling juries. Currently, existing law provides several categories of persons who are ineligible for jury service, including minor children, non-residents and non-citizens. Additionally, existing law deems persons with a felony conviction to be ineligible for service on juries. For certain segments of the state’s population, this prohibition renders a large percentage of persons ineligible for jury service. For example, despite California’s recent efforts to reform the criminal justice system, one in three African American men will be convicted of a felony at some point in their lives. (Sarah K. S. Shannon et al., The Growth, Scope, and Spatial Distribution of People With Felony Records in the United States, 1948-2010, United States Census Bureau (2017), Table S9.) Therefore, it would appear that categorically denying over thirty percent of a demographic group the ability to serve on a jury significantly limits a litigant from that group the ability to try a case before a jury of their peers and disproportionately excludes that segment of the population from the vital democratic institution of jury service. Across all demographic groups, the supporters of this bill suggest that the prohibition on ex-felons serving on juries categorically excludes nearly two million Californians from jury service, despite the fact that these persons have completed their sentences and have paid their debt to society.

Furthermore, the existing law provides that if a court utilizes the list of registered voters and the list of those possessing a driver’s license or state identification card issued by the Department of Motor vehicles to compile localized lists of persons who are eligible for jury service, then the resulting jury pool would be considered sufficiently representative of society. The exclusive use of these lists may result in the creation of a jury pool which further misrepresents the demographic makeup of California. According to the Public Policy Institute of California, approximately 75 percent of eligible adults are registered to vote in California. (Mark Baldassare, et al., California’s Likely Voters- Just the Facts, Public Policy Institute of California (2018) https://www.ppic.org/publication/californias-likely-voters/.) However, within the ranks of eligible voters stark demographic differences emerge. For example, while only 22 percent of eligible white Californians fail to register to vote, 56 percent of eligible Latinos do not register to vote. (Ibid.) Accordingly, the use of voter data in developing jury lists is likely to result in a significant underrepresentation of Latino jurors. Additionally, lower income Californians tend to register to vote at far lower rates than their wealthier peers. Again, the Public Policy Institute of California notes that while 16 percent of those making more than $80 thousand annually are unregistered, 64 percent of those making less than $40 thousand annually have not registered to vote. (Ibid.) Income disparities also impact the rate at which people apply for government issued identification. Currently, the Department of Motor Vehicles charges $36 for a driver’s license and $31 for a state identification card. Although the California Department of Motor Vehicles waives certain fees for seniors seeking identification, nationally, evidence suggests that minorities hold driver’s licenses at rates that are far lower than their white peers. (Alana Semuels, No Driver's License, No Job, The Atlantic (Jun. 15, 2016).)

Given the current data sources for developing juror lists and the existing prohibition on jury service by formerly incarcerated persons, it would appear that California’s existing procedures for developing jury pools are likely to result in the selection of juries that are richer and whiter than California’s population at large. Accordingly, the data casts significant doubt as to whether minority litigants are truly able to obtain a jury of their peers under California’s existing system for generating eligible juror lists.

This bill. In order to strengthen the diversity of California’s trial juries and ensure that the jury pool is an accurate reflection of California’s diverse population, this bill takes several steps to increase the size of the jury pool. First, the bill provides that state tax filing information, in addition to information from voter records and the Department of Motor Vehicles, is considered to be a representative of a cross section of the population. Secondly, recognizing the disproportionate impact of criminal justice polices on minority communities, this bill would remove the prohibition on ex-felons serving on juries. This provision recognizes that, as a class, the nearly two million ex-felons residing in California should not be wholly prevented from participating in society’s institutions simply due to a prior bad action for which the person has paid their debt to society.

Expanding the sources of data utilized to generate juror lists will, ideally, remedy several deficiencies in the existing list. As noted above, existing law presumes that building jury lists using voter data and Department of Motor Vehicle records is representative of the population at large. As further noted, this data appears to leave large segments of the population significantly undercounted. Thus, this bill would add the use of lists of state tax filers to the data used to develop the jury service rolls.

Unlike voting or driving, nearly every California adult is required to file some form of a tax return with the state. By focusing the bill on tax filers as an additional source of information, this bill would appear to encompass persons who may or may not have actually paid taxes. For example, a person qualifying for California’s Earned Income Tax credit may not actually pay any tax, however, that person would nonetheless be required to file a tax return. Additionally, the filing of taxes is one of the few obligations in life that applies to nearly every adult, as even persons on Social Security or receiving unemployment assistance must file taxes. In opposition to this bill, the California District Attorneys Association argues that expanding the sources of data for selecting jury pools considered a representative of a cross section of the population would impose costs and hardship on jury commissioners and courts across the state. It should be noted that such concerns have not been raised to this Committee by either the Judicial Council on behalf of California’s courts, or by any of the state agencies responsible for tax collection. Furthermore, the state is legally obligated to ensure that a jury is reflective of the community at-large. Given the defects in the existing system for generating the jury pool, any such costs appear justified.

Removing the prohibitions on ex-felons serving on juries reflects California’s ongoing efforts to promote restorative justice. Recognizing the disproportionately large number of minorities who can be classified as former felons, this bill removes the prohibition on ex-felons serving on juries. Such persons are made eligible for jury service under this bill, and only those who are presently incarcerated would remain ineligible. Empirical research undermines justifications for excluding those convicted of a felony from serving. One study found that “felon jury exclusion” is “an imprecise and perhaps unnecessary practice that may come at substantial costs.” (James M. Binnall, A Field Study of the Presumptively Biased: Is There Empirical Support for Excluding Convicted Felons from Jury Service? (2014) Vol. 36, No. 1, The University of Denver Law & Policy.)

Beyond ensuring that juries are more representative of the population as a whole, an expanded jury pool also assists courts in the complex task of administering the jury system. California courts already utilize a one day/one trial model for jury service. Accordingly, jury commissioners must ensure that a sufficient number of jurors are brought in each week for voir dire to keep the court system functioning. Particularly in small counties, the court’s ability to generate sufficient panels for voir dire can be difficult and an insufficient jury pool increases the risk that a court may be forced to dismiss last-day criminal trials for failure to obtain enough jurors. Accordingly, the expansion of the jury pool proposed in this bill should assist courts in ensuring that a diverse pool of jurors is available for service in every case.

Existing voir dire processes are designed to detect bias in all types of potential jurors. In opposition to this measure the California District Attorneys Association argues that broadly permitting felons to serve on juries would create unnecessary risk of bias, particularly against the government who previously convicted them. Such anti-government biases may exist in any potential juror, and there is little evidence to suggest the existing voir dire process is not adequately identifying and removing these jurors. Furthermore, there is little evidence that a former felon could not fairly weigh the evidence presented on a crime that is wholly unrelated to their prior actions, and even less evidence that former felons would hold a bias when weighing the merits of a civil action. Given the existing protections built into the legal system to root out biases, such concerns do not appear to justify continuing to categorically deny nearly two million Californians the ability to serve on a jury even after they served their sentences. Especially in light of the disproportionate impacts such exclusions impose on communities of color, this bill is critical to ensuring a properly representative pool of trial jurors in California.

ARGUMENTS IN SUPPORT: This bill is co-sponsored by the American Civil Liberties Union and the California Public Defenders Association and is supported by a coalition of criminal justice reform and legal organizations. Representative of the coalition, the American Civil Liberties Union writes in support:

Current law for jury service eligibility dates back to a very different time in California’s history: a time during which the ideal for juries was a group comprised of “key men” from the community, a proxy for white males. The exclusion of people of color from juries has its roots in pre-Civil War America. Current law deprives California courts hundreds of thousands of prospective jurors, it deprives civil and criminal litigants of their right to a jury compromising a fair cross section of the community and it sends the damaging message to many people of color and those with a felony conviction that their voice, experience, and judgment are worthless in civil society. California can do better.

ARGUMENTS IN OPPOSITION: This bill is opposed by a coalition of District Attorneys from across California. The California District Attorneys Association writes:

We believe that the exclusion of felons from jury service protects the integrity of the process, particularly in criminal trials. It is not hard to imagine someone who has been convicted of a felony, harboring bias against the State and with the court controlling much of the time and nature of the voir dire process, attorneys will have relatively little time to conduct individualized determinations of partiality. Thus, the inclusion of felons would jeopardize the impartiality of criminal juries.

Additionally, by removing the statutory declaration that the use of the statutorily prescribed records are sufficiently inclusive of a cross-section of the community, and by requiring individualized forms containing demographic information for every potential juror, SB 310 creates unnecessary uncertainty and raises the prospects of litigation over the constitutionality of each jury venire.

REGISTERED SUPPORT / OPPOSITION:

Support

American Civil Liberties Association (co-sponsor)

California Public Defenders Association (co-sponsor)

Anti-Defamation League

Anti-Recidivism Coalition

California Attorneys for Criminal Justice

California for Safety and Justice

Consumer Attorneys of California

East Bay Community Law Center

Ella Baker Center for Human Rights

Friends Committee on Legislation in California

Lawyers Committee for Civil Rights

Legal Services for Prisoners with Children

NextGen California

Public Defender of the City and County of San Francisco, Manohar Raju

Root and Rebound Reentry Advocates

State Building and Construction Trades Council

Opposition

California District Attorneys Association

City of Placentia

San Diego County District Attorney, Summer Stephen

Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334

 THIRD READING  

Bill No: SB 310

Author: Skinner (D)

Amended: 5/17/19

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-1, 4/2/19

AYES: Skinner, Bradford, Jackson, Mitchell, Wiener

NOES: Morrell

NO VOTE RECORDED: Moorlach

SENATE JUDICIARY COMMITTEE: 5-2, 4/23/19

AYES: Jackson, Allen, Caballero, Monning, Wieckowski

NOES: Borgeas, Jones

NO VOTE RECORDED: Stern, Umberg

SENATE APPROPRIATIONS COMMITTEE: 4-2, 5/16/19

AYES: Portantino, Bradford, Hill, Wieckowski

NOES: Bates, Jones

SUBJECT: Jury selection

SOURCE: A New Way of Life

American Civil Liberties Union of California

All of Us or None

California Public Defenders Association

Legal Services for Prisoners with Children

DIGEST:

This bill permits a person with a felony conviction, who is not incarcerated in prison or jail, to serve on a jury, and expands the jury selection source lists to include the list of state tax filers which, taken together, are considered inclusive of a representative cross section of the population.

ANALYSIS:

Existing law:

1. Provides that a defendant has a right to trial by a jury drawn from a representative cross section of the community, guaranteed by the Sixth Amendment of the United States Constitution and article I, section 16, of the California Constitution. (Rubio v. Superior Court (1979) 24 Cal.3d 93, 97; see also People v. Garcia (2000) 77 Cal.App.4th 1269, 1274 & fn.3.)
2. Requires that all persons selected for jury service be selected at random, from a source or sources inclusive of a representative cross section of the population of the area served by the court. Provides that sources may include, in addition to other lists, customer mailing lists, telephone directories, or utility company lists. (Code Civ. Pro., § 197, subd. (a).)
3. Provides that the list of registered voters and the Department of Motor Vehicles (DMV) list of licensed drivers and identification cardholders residing within the area served by the court, are appropriate source lists for selection of jurors. Provides that these two source lists, when substantially purged of duplicate names, be considered inclusive of a representative cross section of the population. (Code Civ. Pro., § 197, subd. (b).)
4. Provides that all persons are eligible and qualified to be prospective trial jurors, except the following:
5. Persons who are not citizens of the United States.
6. Persons who are less than 18 years of age.
7. Persons who are not domiciliaries of the State of California, as specified.
8. Persons who are not residents of the jurisdiction wherein they are summoned to serve.
9. Persons who have been convicted of malfeasance in office or a felony, and whose civil rights have not been restored.
10. Persons who are not possessed of sufficient knowledge of the English language, provided that no person shall be deemed incompetent solely because of the loss of sight or hearing in any degree or other disability which impedes the person’s ability to communicate or which impairs or interferes with the person’s mobility.
11. Persons who are serving as grand or trial jurors in any court of this state.
12. Persons who are the subject of conservatorship. (Code Civ. Pro., § 203, subd. (a).)
13. Defines a felony as a crime that is punishable with death, by imprisonment in the state prison, or notwithstanding any other provision of law, by imprisonment in a county jail under the provisions of Section 1170 (h). (Pen. Code, § 17.)
14. Requires the jury commissioner to maintain records regarding selection, qualification, and assignment of prospective jurors. Requires the jury commissioner to maintain records providing a clear audit trail regarding a juror’s attendance, jury fees, and mileage. Provides that all records and papers maintained or compiled by the jury commissioner in connection with the selection or service of a juror may be kept on an electronic or microfilm medium and requires such records to be preserved for at least three years after the list used in their selection is prepared, or for any longer period ordered by the court or the jury commissioner. (Code Civ. Pro., § 207.)

This bill:

1. Provides that the list of registered voters, the DMV list of licensed drivers and identification cardholders, and the list of state tax filers, within the area served by the court, are appropriate lists for the selection of jurors. Provides that these three source lists, when substantially purged of duplicate names, shall be considered inclusive of a representative cross section of the population.
2. Removes language from existing law making persons who have been convicted of a felony subject to an exclusion from jury service.
3. Provides that a person is ineligible for jury service while incarcerated in any prison or jail.

Background

Exclusion of Felons from Jury Service

Forty-nine states, the District of Columbia, and the federal government, have some type of restriction on a convicted felon’s eligibility for jury service. (Binnall, Summonsing Criminal Desistance: Convicted Felons’ Perspective on Jury Service (2017) 43 Law and Social Inquiry 4.) Maine is the only state which allows felons to serve on a jury without restriction. (14 M.R.S. § 1211 (2017).)

Among the historical justifications for excluding felons from jury service are the belief that these individuals lack character and harbor an inherent bias, both against the government and in favor of the defendant. These justifications have been challenged by researchers. For example, a recent study which derived data from interviews with former and prospective jurors in Maine who had felony convictions found that inclusion in the jury process found that “convicted felons approach[ed] jury service in a thoughtful, considerate fashion.” (Binnall, Summonsing Criminal Desistance: Convicted Felons’ Perspective on Jury Service (2017) 43 Law & Social Inquiry 4, 20-21.) The results of the study also suggest that “juror eligibility facilitates changes in convicted felons’ self-concepts, promoting prosocial identity transformation, tempering the stigma of a felony conviction, and prompting the discovery of self-worth.” (Id. at 21.) The findings of another study suggest that convicted felons’ pretrial bias as a group is not significantly different from other groups of non-felon jurors. (See Binnall, A Field Study of the Presumptively Biased: Is There Empirical Support for Excluding Convicted Felons from Jury Service? (2014) 36 Law & Policy 1.)

Arguably, the voir dire process should resolve concerns regarding a prospective juror’s bias. Voir dire is a formal, pre-trial examination that is used to determine the qualification and suitability of each potential juror. The process is intended to help the parties identify and remove jurors who are biased and would not serve well on a particular case due to the facts and evidence involved in the case. Through questioning by the parties’ attorneys, the voir dire process reveals prospective jurors’ experiences and beliefs that may affect their perception of the parties and evidence.

The sponsors of this bill also argues that excluding felons from jury service has a disproportionate impact on African Americans, specifically African American men, given their overrepresentation in the criminal justice system. According to the Public Policy Institute of California:

At the end of 2016, 29% of the male prisoners in state prisons were African American, while only 6% of the state’s male residents are African American. The incarceration rate for African American men is 4,180 per 100,000. White men are imprisoned at a rate of 420 per 100,000, and imprisonment rates for Latino men and men of other races are 1,028 and 335, respectively. (<https://www.ppic.org/publication/californias-changing-prison-population/ [as of Mar. 26, 2019].)

A 2011 study examining felon jury exclusion in Georgia underscores the racial disparity in jury service that results from the exclusion of felons from jury service. (Wheelock, A Jury of One’s “Peers”: The Racial Impact of Felon Jury Exclusion in Georgia (2011) 32 The Justice System Journal 335.) The study concluded:

[O]ver half of African-American men in certain counties are disqualified from jury service solely due to their felon status. Large counties with significant African-American populations, such as Fulton County, might be able to withstand excluding large proportions of a specific subgroup without a significant impact on the racial composition of jury lists. There remains a large pool of eligible African-American men that can replace the ones that find themselves disqualified due to their felon status. However, the ability of counties with relatively small African-American populations and high levels of exclusion, such as Whitfield County, which excludes nearly 64 percent of its approximate 1,300 African-American male residents, to field a representative jury list would seem to be severely hindered by felon jury exclusion. (Id. at 352.)

In California, the restoration of a person’s civil rights—which would enable a person with a felony conviction to serve on a jury—can only be done via a gubernatorial pardon. (Pen. Code, § 4852.17.) It is worth noting that there is no right to or guarantee that a pardon applicant will receive one.

This bill removes people with a felony conviction from the list of individuals who are not eligible for jury service. However, this bill provides that a person is ineligible for jury service while incarcerated in any prison or jail.

Jury Pool Source Lists

By law, a jury must represent a cross section of the population in a community in order to ensure that a defendant is afforded his or her constitutional right to an impartial jury. The courts, through the respective jury commissioners, have an obligation arising from both the U.S. and California Constitutions to ensure that jury pools are so representative.

The presumption that drawing prospective jurors from the DMV’s list and the list of registered voters is inclusive of a representative cross section of the population was codified in Code of Civil Procedure section 197 in 1988. This provision of law has not been amended since that time. However, there is limited information over that time period examining whether using those source lists actually results in representative jury venires.

This bill expands the source lists to include the list of state tax filers which, taken together, are considered inclusive of a representative cross section of the population for purposes of jury selection.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee, unknown, potentially-significant costs in the thousands of dollars to the courts to obtain tax filer information. (General Fund- Trial Court Trust Fund)

SUPPORT: (Verified 5/16/19)

A New Way of Life (co-source)

All of Us of None (co-source)

American Civil Liberties Union of California (co-source)

California Public Defender’s Association (co-source)

Legal Services for Prisoners with Children (co-source)

California Employment Lawyers Association

Californians United for a Responsible Budget

East Bay Community Law Center

Ella Baker Center for Human Rights

Fair Chance Project

Friends Committee on Legislation of California

Lawyers’ Committee for Civil Rights of the San Francisco

Root and Rebound

San Francisco Public Defender’s Office

Tides Advocacy

OPPOSITION: (Verified 5/16/19)

None received

Prepared by: Stephanie Jordan / PUB. S. /

5/20/19 11:26:20

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

SB 310 (Skinner) - Jury selection

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on May 16, 2019

Bill Summary:

SB 310 would make a number of changes to the jury selection process and would require jury commissioners to compile and report aggregate data, as specified.

Fiscal Impact:

Unknown, potentially-significant costs in the thousands of dollars to the courts to obtain tax filer information. (General Fund*)

Committee Amendments:

Strike data collection provisions and include an expanded presumption of a representative cross section that contains tax filers.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

SB 310 (Skinner) - Jury selection

Bill Summary:

SB 310 would make a number of changes to the jury selection process and would require jury commissioners to compile and report aggregate data, as specified.

Fiscal Impact:

Unknown, potentially-major costs in the low millions of dollars to the courts to comply with the provisions of this measure. The Judicial Council has indicated that costs are associated primarily with the requirement to use additional lists from which people are selected for jury service, gathering data on the pool of prospective juror, and reporting information. These costs are estimated to be around $1.5 million. The courts would incur additional one-time, likely-significant costs to reconfigure information systems to capture the required data points. (General Fund*)

*Trial Court Trust Fund

Background:

Each defendant has a right to a jury drawn from a fair cross section of the community. The cross section requirement functions as a means of ensuring a defendant has access to an impartial jury as required by the Sixth Amendment of the United States Constitution and Article I, Section 16, of the California Constitution. Under current law, persons must be selected at random for jury service from sources that are inclusive of a representative cross section of the population of the area served by the court. The law provides that potential sources include, but are not limited to, customer mailing lists, telephone directories, or utility company lists. In addition, current law specifies that when purged of duplicate names, the list of registered voters and the Department of Motor Vehicles’ (DMV) list of licensed drivers and identification cardholders that reside in the area served by the court are inclusive of a representative cross section of the population. This establishes a presumption, oft-cited by courts when considering challenges to a jury venire, that these lists are by law adequate for protecting defendants’ rights to an impartial jury. Currently, the following persons are not eligible or qualified to be prospective trial jurors:

• Non-U.S. citizens;
• Persons who are under age 18;
• Persons who are not domiciled in California;
• Persons who are not residents of the jurisdiction wherein they are summoned to serve;
• Persons who are convicted of malfeasance in office or a felony, and whose civil rights have not been restored;
• Persons who are not possessed of sufficient knowledge of the English language, except as specified;
• Persons who are serving as grand or trial jurors in any California court; or
• Persons who are the subject of a conservatorship.

Proposed Law:

This bill would require sources for the selection of persons for jury service include the list of registered voters, the DMV list of licensed drivers and identification cardholders, the list of state tax filers, and the list of utility company recipients, who reside within the area served by the court. Additionally, it would allow a person who has been convicted of a felony to be an eligible and qualified prospective juror and would make persons who are incarcerated in prison or jail unable to serve.

SB 310 also would require the jury commissioner to develop a single-page, anonymous form for the purpose of determining whether the pool of prospective jurors who appear for jury service accurately represents a cross section of the population of the area served by the court. The commissioner would be required to produce a report biannually that aggregates the demographic data required to be collected, and the court would be required to make those reports publicly available.

Related Legislation:

AB 310 (Santiago, 2019) would exempt certain corrections, probation and parole officers from criminal trial jury service until January 1, 2024 and would require the Judicial Council to submit a report to the Legislature detailing the impact of categorical exemptions on the justice system. AB 310 is on the Suspense File of the Assembly Committee on Appropriations.

SB 576 (Wiener, 2017) would have required the jury commissioner to collect and maintain demographic data, as specified, from all prospective jurors who appear for jury service to determine if the pool of prospective jurors accurately represents a cross section of the population of the area served by the court. SB 576 was held on the Suspense File of this Committee.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2019-2020 Regular Session

Bill No: SB 310 (Author:Skinner)

Version: March 21, 2019

Hearing Date: April 23, 2019

Fiscal: Yes

Urgency: No

Consultant: CK

SUBJECT

Jury selection

DIGEST

This bill requires juror pools to be drawn from a specified list of sources. This bill makes those persons convicted of felonies eligible to serve as jurors and excludes from eligibility those incarcerated in a prison or jail. The bill requires jury commissioners to develop a single-page, anonymous form for tracking demographic data of jurors. The bill provides access to lists of jurors for the purposes of motions to quash the venire.

EXECUTIVE SUMMARY

In order to ensure each defendant has access to an impartial jury as mandated by the United States and California Constitutions, the defendant’s jury must be drawn from a fair cross section of their community. Existing law does not prescribe the sources from which such a jury must be pulled, but does provide a presumption that a jury meets this standard if pulled from specified lists, namely the voter registration list and the Department of Motor Vehicles (DMV) list of drivers and cardholders. This bill requires jurors be pulled from specified sources and deletes the presumption. The bill also requires jury commissioners to create a form to collect demographic information from prospective jurors to be compiled in publicly accessible reports. Copies of lists of jurors’ names and other information is required to be made available upon request in connection with a motion to quash the venire.

Currently, persons convicted of felonies are ineligible for jury service. This bill makes them eligible, and instead makes ineligible those who are incarcerated during the period of their incarceration. The bill is sponsored by the American Civil Liberties Union, the California Public Defenders Association, A New Way of Life, and All of Us or None. There is broad support for the bill. The San Diego District Attorney is the sole opposition. This bill passed out of the Senate Public Safety Committee on a 5-1 vote.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Provides that a defendant has a right to trial by a jury drawn from a representative cross section of the community, guaranteed by the Sixth Amendment of the United States Constitution and article I, section 16, of the California Constitution. (Rubio v. Superior Court (1979) 24 Cal.3d 93, 97; see also People v. Garcia (2000) 77 Cal.App.4th 1269, 1274 & fn.3.)
2. Provides that the Legislature recognizes that trial by jury is a cherished constitutional right, and that jury service is an obligation of citizenship. It is the policy of the State of California that all persons selected for jury service shall be selected at random from the population of the area served by the court; that all qualified persons have an equal opportunity, in accordance with this chapter, to be considered for jury service in the state and an obligation to serve as jurors when summoned for that purpose; and that it is the responsibility of jury commissioners to manage all jury systems in an efficient, equitable, and cost-effective manner. (Code Civ. Proc. § 191.)
3. Requires that all persons selected for jury service be selected at random, from a source or sources inclusive of a representative cross section of the population of the area served by the court. Sources may include, in addition to other lists, customer mailing lists, telephone directories, or utility company lists. (Code Civ. Proc. § 197(a).)
4. Specifies that the list of registered voters and the DMV’s list of licensed drivers and identification cardholders resident within the area served by the court are appropriate source lists for selection of jurors. These two lists, when substantially purged of duplicate names, shall be considered inclusive of a representative cross section of the population as required. (Code Civ. Proc. § 197(b).)
5. Requires the DMV to furnish the jury commissioner of each county with the current list of the names, addresses, and other identifying information of persons residing in the county who are age 18 years or older and who are holders of a current driver's license or identification card, as specified. The conditions under which these lists shall be compiled semiannually shall be determined by the director, consistent with any rules which may be adopted by the Judicial Council. The jury commissioner shall not disclose the information furnished by the DMV pursuant to this section to any person, organization, or agency. (Code Civ. Proc. § 197(c).)
6. Requires the jury commissioner of each county to maintain records regarding selection, qualification, and assignment of prospective jurors and maintain records providing a clear audit trail regarding a juror's attendance, jury fees, and mileage. All records and papers maintained or compiled by the jury commissioner in connection with the selection or service of a juror shall be preserved for at least three years after the list used in their selection is prepared. (Code Civ. Proc. § 207.)
7. Provides that all persons are eligible and qualified to be prospective trial jurors except for certain specified persons. Among those ineligible to be jurors are those persons who have been convicted of a felony and whose civil rights have not been restored. (Code Civ. Proc. § 203.)

This bill:

1. Requires that all jurors be selected at random from the following lists: the list of registered voters; the DMV’s list of licensed drivers and identification cardholders; the list of state tax filers; and the list of utility company recipients.
2. Eliminates the presumption that the list of registered voters and the DMV’s list of licensed drivers and identification cardholders is inclusive of a representative cross section of the population.
3. Requires jury commissioners to develop a single-page, anonymous form for the purpose of determining whether the pool of prospective jurors who appear for jury service pursuant to a jury summons accurately represents a cross section of the population of the area served by the court. The form shall be provided to each prospective juror and shall collect specified demographic information, but shall not collect personally identifying information.
4. Requires jury commissioners to produce a report aggregating the demographic information collected, and requires the superior courts to maintain and make publicly available copies of such reports.
5. Provides litigants, upon request, access to lists of all jurors’ names with identifying information when in connection with a motion to quash the venire.
6. Makes persons ineligible for jury service when incarcerated in any prison or jail and removes the ineligibility for persons convicted of a felony.

COMMENTS

1. Stated intent of the bill

According to the author:

Senate Bill 310 is a vital, common-sense reform that will promote fairness and legitimacy in California’s jury system. This bill ensures a more accurate cross section of the community by expanding the list of eligible jurors to include state tax filers and utility ratepayers, allows a person with a prior felony conviction to serve on a jury as long as they are not currently incarcerated and requires the collection of demographic data so that the pool of jurors can accurately be compared to the community in the geographic area served by the court.

1. Ensuring access to a representative jury

A jury, by law, must represent a cross section of the population in a community in order to ensure that a defendant is afforded their constitutional right to an impartial jury. This philosophy underpins the foundation of California’s jury system. The courts, through the respective jury commissioners, have an obligation arising from both the United States and California Constitutions to ensure that jury pools are properly representative.

Under current law, persons shall be selected at random for jury service from sources that are inclusive of a representative cross section of the population of the area served by the court. (Code Civ. Proc. § 197.) The cross section requirement functions as a means of ensuring a defendant has access to an impartial jury as required by the Sixth Amendment of the United States Constitution and article I, Section 16, of the California Constitution. The law currently provides that potential sources include, but are not limited to, customer mailing lists, telephone directories, or utility company lists.

In addition, current law specifies that when purged of duplicate names, the list of registered voters and the Department of Motor Vehicles’ list of licensed drivers and identification cardholders that reside in the area served by the court are inclusive of a representative cross section of the population. This establishes a presumption, oft cited by courts when considering challenges to a jury venire, that these lists are by law adequate for protecting defendants’ rights to an impartial jury.

The legal presumption that jury pooling from the DMV’s list and the list of registered voters is inclusive of a representative cross section of the population was codified in Code of Civil Procedure Section 197 in 1988. In the nearly 30 years since, there have been no amendments to this provision. However, there has also been a dearth of information over that time period examining whether such jury pooling actually results in representative venires.

This bill addresses identified weaknesses in current law in achieving a true cross section of the population in several ways.

First, this bill requires that all persons selected for jury service be selected at random from, at least, the following sources of persons who reside within the area served by the court:

• the list of registered voters;
• the DMV’s list of licensed drivers and identification cardholders;
• the list of state tax filers; and
• the list of utility company recipients. 

The bill removes the presumption that juror pools drawn solely from the list of registered voters and the DMV’s list of licensed drivers and identification cardholders are inclusive of a representative cross section of the population. By including these additional lists, the bill ensures that portions of the population not on the lists indicated in the presumption are not systematically excluded from serving on juries. The prescribed set of lists ensures that the nets are cast far enough into the populace that more Californians are truly eligible for jury service.

To the point of increased eligibility, the bill also removes the automatic ineligibility for persons convicted of a felony. Such persons are made eligible under this bill with only those who are actively incarcerated made ineligible. Empirical research undermines justifications for excluding those convicted of a felony from serving. One study found that “felon jury exclusion” is “an imprecise and perhaps unnecessary practice that may come at substantial costs.” ^[1] Another study found that the practice “lacks sufficient justification” and concluded:

Automatic jury exclusions of those with criminal records should be abandoned. They are not needed to ensure fairness; the challenge for cause exists for cases of demonstrated bias. Indeed, they increase unfairness, by enhancing racial disparities, impeding reentry, and insisting that only those who lack a particular type of knowledge of the criminal justice system can scrutinize it.^[2]

Finally, the bill takes steps toward gathering quantitative data to assess exactly how representative the jury pools are. There is currently no systematic, statewide process for collecting demographic data on those responding to jury summons throughout the state. This bill requires jury commissioners to create a form to collect and maintain demographic data from all prospective jurors who appear for jury service, including each juror’s race, gender, ethnicity, national origin, and ZIP code of residence. The data collected could be used to either bolster the validity of the newly prescribed lists or identify systematic weaknesses in the jury pooling processes that may be of constitutional significance. In fact, this bill would specify that the data shall be collected to determine if the pools of prospective jurors appearing for service, after being summoned from each court’s chosen sources, accurately represent a cross section of the population of the area served by each court.

The data is to be collected upon a juror’s arrival to jury duty, along with other information currently collected by the court. In order to ensure anonymity and that the privacy of jurors is not violated, all demographic data would be collected and compiled separate and apart from individualized data kept by jury commissioners; the forms cannot collect any personally identifying information. The jury commissioner of each court is then required to produce biannual reports presenting the aggregate demographic data collected. The respective superior courts are then required to maintain the reports and make them publicly available.

Where litigants believe that the pooling sources have not resulted in a representative cross section of the population, they may file a motion to quash the venire. This bill ensures that litigants challenging a jury pool have access to lists of jurors’ names, including the identifying information of those that have actually served as jurors. This does not include any information kept on the anonymous forms provided for by this bill. In order to protect the personal information contained in these lists, the author may wish to consider an amendment limiting the use of the lists to the underlying motion to quash and to require the information to be returned to the court at the conclusion of the litigation of the motion.

1. Stakeholder positions

The American Civil Liberties Union is a co-sponsor of the bill. It makes its case for the bill:

Juries are the backbone of the justice system. The idea that litigants can have their cases heard by peers—by the community itself—is a primary source of the justice system’s legitimacy. Juries can only speak with the voice and authority of the community if they truly and accurately reflect that community. However, California’s direct exclusion of people with felony convictions and indirect exclusion of underserved communities from jury service prevent California from realizing these principles.

The Ella Baker Center for Human Rights writes in support:

Current law deprives the courts of California of millions of prospective jurors, it deprives civil and criminal litigants of a jury pool that truly reflects the community in the geographic area served by the court, and it sends the damaging message to those with a felony conviction that their voice, their experience, and their judgment no longer matters in the court system.

The Ella Baker Center strongly believes that our juries should accurately represent our community. SB 310 (Skinner) would help make the justice system more democratic and give a voice to people who have been unjustly denied one in the important jury system.

The San Diego County District Attorney is in opposition. She argues, in part, that the “exclusion of felons from jury service protects the integrity of the process.”

SUPPORT

A New Way of Life (co-sponsor)

All of Us or None (co-sponsor)

American Civil Liberties Union (co-sponsor)

California Public Defenders Association (co-sponsor)

Anti-Defamation League

Anti-Recidivism Coalition

California Employment Lawyers Association

Californians United for a Responsible Budget

Consumer Attorneys of California

Ella Baker Center for Human Rights

Fair Chance Project

Friends Committee on Legislation of California

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

Legal Services for Prisoners with Children

NextGen California

Root and Rebound

San Francisco Public Defender’s Office

Tides Advocacy

Voices for Progress

OPPOSITION

Summer Stephan, San Diego County District Attorney

RELATED LEGISLATION

Pending: AB 310 (Santiago, 2019) exempts from jury service, peace officers, as defined, and requires the Judicial Council to create a report analyzing the impact of categorical exemptions to jury service. This bill is currently pending in the Assembly Public Safety Committee.

Prior:

SB 576 (Wiener, 2017) would have required jury commissioners to collect and maintain demographic data, as specified, from all prospective jurors who appear for jury service, to determine if the pool of prospective jurors accurately represents a cross section of the population of the area served by the court. This bill died in the Senate Appropriations Committee.

AB 535 (Jones-Sawyer, 2017): would have removed the prohibition of a person with a felony conviction from serving on a jury. The bill would have instead excluded persons who have been convicted of bribery, perjury, forgery, or other high crimes and persons who had not completed probation, parole, post-release community supervision, or mandatory supervision for the conviction of a felony. This bill died on the Assembly Floor.

AB 324 (Jones-Sawyer, 2015) would have removed the prohibition of a person with a felony conviction from serving on a jury. The bill would have instead excluded persons who have been convicted of bribery, perjury, forgery, or other high crimes and persons who had not completed probation, parole, post-release community supervision, or mandatory supervision for the conviction of a felony. This bill died in the Assembly Judiciary Committee.

AB 1401 (Committee on Judiciary, 2013) would have removed the prohibition on lawful permanent residents from serving on juries. This bill was vetoed by Governor Edmund G. Brown Jr. The veto message explained his reasoning for not allowing lawful permanent residents to serve on juries: “I don’t think that’s right.”

PRIOR VOTES:

Senate Public Safety Committee (Ayes 5, Noes 1)

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1. James M. Binnall, A Field Study of the Presumptively Biased: Is There Empirical Support for Excluding Convicted Felons from Jury Service? (2014) vol. 36, No. 1, The University of Denver Law & Policy. ↑

2. Anna Roberts, Casual Ostracism: Jury Exclusion on the Basis of Criminal Convictions (2013) 98 Minn. L.Rev. 592, 594, 647. ↑

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2019 - 2020 Regular

Bill No: SB 310 Hearing Date: April 2, 2019

Subject: Jury Selection

HISTORY

Source: American Civil Liberties Union of California

A New Way of Life

All of Us of None

California Public Defender’s Association

Legal Services for Prisoners with Children

Prior Legislation: SB 576 (Wiener), held in Senate Appropriations 2017

AB 535 (Jones-Sawyer), died on third reading 2018

AB 324 (Jones-Sawyer), never heard Assembly Judiciary 2015

Support: California Employment Lawyers Association; Californians United for a Responsible Budget; East Bay Community Law Center; Ella Baker Center for Human Rights; Fair Chance Project; Friends Committee on Legislation of California; Lawyers’ Committee for Civil Rights of the San Francisco; Root and Rebound; San Francisco Public Defender’s Office; Tides Advocacy

Opposition: None known

PURPOSE

The purpose of this bill is to: 1) permit a person with a felony conviction, who is not incarcerated in prison or jail, to serve on a jury; 2) repeal the presumption that voter registration and Department of Motor Vehicle (DMV) lists provide a representative cross section of the population; and 3) require jury commissioners to collect specified demographic data and produce reports aggregating that data two times per year.

Existing case law provides that a defendant has a right to trial by a jury drawn from a representative cross section of the community, guaranteed by the Sixth Amendment of the United States Constitution and article I, section 16, of the California Constitution. (Rubio v. Superior Court (1979) 24 Cal.3d 93, 97; see also People v. Garcia (2000) 77 Cal.App.4th 1269, 1274 & fn.3.)

Existing law requires that all persons selected for jury service be selected at random, from a source or sources inclusive of a representative cross section of the population of the area served by the court. Provides that sources may include, in addition to other lists, customer mailing lists, telephone directories, or utility company lists. (Code Civ. Pro., § 197, subd. (a).)

This bill amends the sources from which prospective jurors are drawn to include the list of registered voters, the DMV list of licensed drivers and identification cardholders, the list of state tax filers, and the list of utility company recipients, who reside within the area served by the court.

Existing law provides that the list of registered voters and the DMV list of licensed drivers and identification cardholders resident within the area served by the court, are appropriate source lists for selection of jurors. Provides that these two source lists, when substantially purged of duplicate names, be considered inclusive of a representative cross section of the population. (Code Civ. Pro., § 197, subd. (b).)

This bill repeals this provision of law.

Existing law provides that all persons are eligible and qualified to be prospective trial jurors, except the following:

• Persons who are not citizens of the United States.
• Persons who are less than 18 years of age.
• Persons who are not domiciliaries of the State of California, as specified.
• Persons who are not residents of the jurisdiction wherein they are summoned to serve.
• Persons who have been convicted of malfeasance in office or a felony, and whose civil rights have not been restored.
• Persons who are not possessed of sufficient knowledge of the English language, provided that no person shall be deemed incompetent solely because of the loss of sight or hearing in any degree or other disability which impedes the person’s ability to communicate or which impairs or interferes with the person’s mobility.
• Persons who are serving as grand or trial jurors in any court of this state.
• Persons who are the subject of conservatorship. (Code Civ. Pro., § 203, subd. (a).)

Existing law defines a felony as a crime that is punishable with death, by imprisonment in the state prison, or notwithstanding any other provision of law, by imprisonment in a county jail under the provisions of Section 1170 (h). (Pen. Code, § 17.)

This bill removes language from existing law making persons who have been convicted of a felony subject to an exclusion from jury service.

This bill provides that a person is ineligible for jury service while incarcerated in any prison or jail.

Existing law requires the jury commissioner to maintain records regarding selection, qualification, and assignment of prospective jurors. Requires the jury commissioner to maintain records providing a clear audit trail regarding a juror’s attendance, jury fees, and mileage. Provides that all records and papers maintained or compiled by the jury commissioner in connection with the selection or service of a juror may be kept on an electronic or microfilm medium and requires such records to be preserved for at least three years after the list used in their selection is prepared, or for any longer period ordered by the court or the jury commissioner. (Code Civ. Pro., § 207.)

This bill requires the jury commissioner to develop a single-page, anonymous form for the purpose of determining whether the pool of prospective jurors who appear for jury service pursuant to a jury summons accurately represents a cross section of the population of the area served by the court.

This bill requires the jury commissioner to provide the form to each prospective juror when the juror first appears for jury service pursuant to a jury summons.

This bill provides that the form is solely used to collect the following information from a prospective juror: (1) race; (2) gender; (3) ethnicity; (4) national origin; and (5) zip code.

This bill prohibits the form from collecting any personally identifying information.

This bill requires the jury commissioner to produce a report twice each year that aggregates the demographic data listed above, and requires the superior court of each county to maintain a copy of the jury commissioner’s reports and make them publicly available.

This bill requires that litigants seeking to obtain copies of the lists of all jurors’ names, including the identifying information of all persons who have previously served as jurors, in support of a motion to quash the venire or in discovery for that motion, be provided copies of the lists upon request.

COMMENTS

1. Need for This Bill

According to the author:

SB 310 would allow a person with a felony conviction to be eligible to serve on a jury as long as the person was not incarcerated in any prison or jail.

…

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 (PPIC), “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….”

Maine allows felons to serve on jurors without condition, while four other states allow jury service by former felons in some circumstances. There is no evidence of negative consequences in either Maine … or the four states which allow jury service by former felons…. In fact, there is evidence to support positive impacts of allowing former felons to serve on juries….

SB 310 also adds to the lists from which the state’s jury commissioners draw prospective jurors from, in order to obtain a representative cross section of the population. Currently, prospective jurors are drawn from lists provided by the Department of Motor Vehicles and each county Registrar of Voters, but they may also be drawn from sources such as telephone directories or utility company lists. SB 310 requires that the pool of eligible jurors also be drawn from the list of state tax filers and utility company recipients who reside within the area served by the court.

Although current law does not require the exclusive use of the DMV and ROV lists, it does create a presumption that a fair cross section can be obtained using only those two lists. SB 310 would remove the presumption that these lists are considered inclusive of a representative cross section of the population.

Finally, SB 310 would require the jury commissioner to develop a single-page, anonymous form for the purpose of gathering demographic data from prospective jurors in order to determine whether the people who appear for jury service accurately represent a cross section of the population of the area served by the court. The form would be distributed to prospective jurors when they first appear for jury service, and the forms and information contained within them would be prohibited from disclosure to any person, organization, or agency. The data contained in the forms would be aggregated, and the jury commissioner of each county superior court would be required to produce a report biannually on the data.

1. Exclusion of Felons from Jury Service

Forty-nine states, the District of Columbia, and the federal government, have some type of restriction on a convicted felon’s eligibility for jury service. (Binnall, Summonsing Criminal Desistance: Convicted Felons’ Perspective on Jury Service (2017) 43 Law and Social Inquiry 4.) Maine is the only state which allows felons to serve on a jury without restriction. (14 M.R.S. § 1211 (2017).)

Among the historical justifications for excluding felons from jury service are the belief that these individuals lack character and harbor an inherent bias, both against the government and in favor of the defendant. These justifications have been challenged by researchers. For example, a recent study which derived data from interviews with former and prospective jurors in Maine who had felony convictions found that inclusion in the jury process found that “convicted felons approach[ed] jury service in a thoughtful, considerate fashion.” (Binnall, Summonsing Criminal Desistance: Convicted Felons’ Perspective on Jury Service (2017) 43 Law & Social Inquiry 4, 20-21.) The results of the study also suggest that “juror eligibility facilitates changes in convicted felons’ self-concepts, promoting prosocial identity transformation, tempering the stigma of a felony conviction, and prompting the discovery of self-worth.” (Id. at 21.) The findings of another study suggest that convicted felons’ pretrial bias as a group is not significantly different from other groups of non-felon jurors. (See Binnall, A Field Study of the Presumptively Biased: Is There Empirical Support for Excluding Convicted Felons from Jury Service? (2014) 36 Law & Policy 1.)

Arguably, the voir dire process should resolve concerns regarding a prospective juror’s bias. Voir dire is a formal, pre-trial examination that is used to determine the qualification and suitability of each potential juror. The process is intended to help the parties identify and remove jurors who are biased and would not serve well on a particular case due to the facts and evidence involved in the case. Through questioning by the parties’ attorneys, the voir dire process reveals prospective jurors’ experiences and beliefs that may affect their perception of the parties and evidence.

The sponsor of the bill also argues that excluding felons from jury service has a disproportionate impact on African Americans, specifically African American men, given their overrepresentation in the criminal justice system. According to the Public Policy Institute of California, “At the end of 2016, 29% of the male prisoners in state prisons were African American, while only 6% of the state’s male residents are African American. The incarceration rate for African American men is 4,180 per 100,000. White men are imprisoned at a rate of 420 per 100,000, and imprisonment rates for Latino men and men of other races are 1,028 and 335, respectively.” (<https://www.ppic.org/publication/californias-changing-prison-population/> [as of Mar. 26, 2019].) A 2011 study examining felon jury exclusion in Georgia underscores the racial disparity in jury service that results from the exclusion of felons from jury service. (Wheelock, A Jury of One’s “Peers”: The Racial Impact of Felon Jury Exclusion in Georgia (2011) 32 The Justice System Journal 335.) The study concluded:

“[O]ver half of African-American men in certain counties are disqualified from jury service solely due to their felon status. Large counties with significant African-American populations, such as Fulton County, might be able to withstand excluding large proportions of a specific subgroup without a significant impact on the racial composition of jury lists. There remains a large pool of eligible African-American men that can replace the ones that find themselves disqualified due to their felon status. However, the ability of counties with relatively small African-American populations and high levels of exclusion, such as Whitfield County, which excludes nearly 64 percent of its approximate 1,300 African-American male residents, to field a representative jury list would seem to be severely hindered by felon jury exclusion.” (Id. at 352.)

In California, the restoration of a person’s civil rights—which would enable a person with a felony conviction to serve on a jury—can only be done via a gubernatorial pardon. (Pen. Code, § 4852.17.) It is worth nothing that there is no right to or guarantee that a pardon applicant will receive one.

This bill removes people with a felony conviction from the list of individuals who are not eligible for jury service. This bill also provides that a person is ineligible for jury service while incarcerated in any prison or jail.

1. Jury Demographic Information

By law, a jury must represent a cross section of the population in a community in order to ensure that a defendant is afforded his or her constitutional right to an impartial jury. The courts, through the respective jury commissioners, have an obligation arising from both the U.S. and California Constitutions to ensure that jury pools are so representative.

The presumption that drawing prospective jurors from the Department of Motor Vehicles’ list and the list of registered voters is inclusive of a representative cross section of the population was codified in Code of Civil Procedure section 197 in 1988. This provision of law has not been amended since that time. However, there is limited information over that time period examining whether such jury pooling actually results in representative jury venires.

This bill would eliminate the presumption that using the DMV and voting registration lists are inclusive of a representative cross section of the population. This bill would also require a jury commissioner to collect various demographic data from prospective jurors who appear for jury service, aggregate the data, and produce reports on that data twice each year.

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