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Anna Roberts

Abstracted from: Anna Roberts, Casual Ostracism: Jury Exclusion on the Basis of Criminal Convictions, 98 Minnesota Law Review 592 (December, 2013) (330 Footnotes)


In the early 1960s, a teenager named Frank Johnson appeared in a municipal court in Texas, where he was found guilty of theft of less than five dollars. He was thirteen or fourteen, and his punishment was a fifty dollar fine.

Anna RobertsTwenty years later, Mr. Johnson received a summons for jury duty. The prosecution asserted that his twenty-year-old conviction disqualified him, and over the objection of the defense the court excused him. The court did not consider the passage of time, or the smallness of the sum, or anything about Mr. Johnson as an adult. Under the Texas disqualification statute--then, as now--a conviction of misdemeanor theft precludes jury service for life.

This Article addresses the exclusion from criminal jury service of those who have a criminal record. Statutory exclusions are in place in the federal system and in forty-eight states while the majority of them address felony convictions, thirteen--as in the case of Texas--provide for the disqualification of at least some people with misdemeanor convictions. Extending beyond statutory disqualifications are several other means by which a conviction can be used to preclude jury service in the absence of any showing of bias: the selective mailing of jury summonses, the exercise of peremptory challenges, and the granting of challenges for cause. The combination of the breadth of these exclusions and the thinness of their justifications offers a prime example of, as James Forman puts it, "how casually, almost carelessly, our society ostracizes offenders."

This Article rejects casual and careless ostracism in favor of a careful analysis of the costs and benefits of this type of civic exclusion. This analysis incorporates three broader policy critiques that are currently being leveled at the criminal justice system but that have not yet been applied to jury exclusion. It shows how they can inform, and be informed by, critiques of this type of jury exclusion.

First, the sizeable and growing body of research into the characteristics of wrongful conviction cases indicates that jurors have, in many cases, failed to understand central aspects of the criminal justice system. This lack of understanding undermines the unquestioning exclusion of those with firsthand experience of the system. Second, recent scholarship has identified the adjustment of prosecutorial incentives as a key component of criminal justice reform. This Article adds jury exclusion to that literature, critiquing and proposing adjustments to a system in which the state can remove from the jury, without cost to itself, those who are presumed to be embittered against the state. Third, Alexandra Natapoff has highlighted the "silencing of criminal defendants" at various points in the criminal process as an obstacle to reform. This Article extends her critique to the process of jury selection.

Part I compiles the various means by which criminal convictions are used as a basis for jury exclusion. Part II examines the impact of these exclusions, focusing on three of the main harms. Part III investigates whether the justifications that are given for these exclusions outweigh the harms. Part IV recommends the abandonment of automatic exclusions on the basis of criminal convictions: they lack sufficient justification, and permit the state to remove, without cost to itself, those assumed to be embittered against the state.