Convicts in court: felonious lawyers make a case for including convicted felons in the jury pool.

• Author: Binnall, James M.

1. INTRODUCTION

   Currently, in twenty-nine states and the federal court system, a convicted felon can practice law, but cannot serve on a jury. (1) In these jurisdictions, bar examiners conduct individualized evaluations of all aspiring attorneys, providing bar applicants with a felonious criminal history the opportunity to gain entry into the legal profession. (2) Yet, such jurisdictions also employ categorical, record-based juror eligibility statutes, which permanently prohibit convicted felons from taking part in the adjudicative process. (3) Ignored by courts and scholars, (4) this incongruent framework for assessing the value of prospective legal actors with a criminal past seemingly undermines the proffered rationales for excluding convicted felons from jury service, and civic life generally; thereby delegitimizing the law and potentially threatening reintegration initiatives.

   Lawyers and jurors are equally vital to democratic systems of government. As Alexis De Tocqueville noted, "the prestige accorded to lawyers and their permitted influence in the government are ... the strongest barriers against the faults of democracy," (5) while "[t]he jury is both the most effective way of establishing the people's rule and the most efficient way of teaching them how to rule." (6) Accordingly, to protect the system of justice, (7) all jurisdictions screen potential lawyers and jurors, (8) banishing those who may jeopardize the functionality and integrity of indispensible legal institutions. But the procedures used by a majority of jurisdictions to evaluate a convicted felon's suitability for these two legal roles differ wildly, suggesting that gatekeepers maintain keenly divergent views of convicted felons.

   Specifically, legislators and courts justify the preclusion of convicted felons from jury service by alleging that all those marked with a felony conviction uniformly "lack probity" (9) and are "inherently biased." (10) In this way, felon jury exclusion statutes rest solely on the presumption that a felony conviction renders one irreparably flawed, (11) to the extent that lawmakers must "define and protect juries" (12) by categorically locking all convicted felons out of the deliberation room. (13)

   Yet, a majority of jurisdictions, while permanently banning convicted felons from jury service, do not per se disqualify all bar applicants with a felonious criminal history. (14) Instead, such jurisdictions opt to individually evaluate, and in some cases license, convicted felons who hope to practice law; (15) ostensibly ignoring the supposed permanence of character flaws and biases. (16) Thus, adhering to an inconsistent evaluative framework, a majority of jurisdictions call into question the validity of the professed rationales for record-based juror eligibility statutes.

   While per se excluding convicted felons from all meaningful legal roles is a tempting method by which to rectify such inconsistency, social science research demonstrates that the opposite approach is far more prudent. For example, law professor Tom Tyler's empirical work proposes that voluntary compliance surpasses deterrence as a means of social control, and that citizens are more likely to voluntarily comply with the law if they view the law as legitimate. (17) Additionally, because citizens contemplate the fairness of their experiences with the justice system when assessing the legitimacy of legal procedures, (18) authorities can influence one's sense of procedural justice by regulating conduct through thoughtful methods. (19)

   Tyler contends that just procedures involve measures of representation, consistency, impartiality, accuracy, correctability, and ethicality. (20) Moreover, just procedures foster fairness, legitimacy, and ultimately voluntary compliance with the law. (21) Yet, "[w]hen authorities are viewed as procedurally unjust, their legitimacy is undermined, leading to support for disobedience and resistance." (22) Hence, because per se exclusions, like record-based juror eligibility statutes, are inattentive to all of the components of procedural justice, they do not promote the legitimacy of law and potentially encourage recidivistic behavior. Conversely, the tailored assessments that govern a felon's access to the legal profession respect elements of procedural justice, legitimizing the law and likely facilitating law abiding conduct.

   Though scholars have criticized felon jury exclusion statutes by highlighting their inherent flaws, (23) this article takes a different approach. This article considers felon jury exclusion statutes contextually, arguing that by unconditionally banning felon-jurors, while individually evaluating felon-lawyers, a majority of jurisdictions undermine their own rationales for expelling millions of Americans from the adjudicative process. (24) Moreover, informed by Tyler's theoretical framework, this article asserts that to achieve procedural justice, jurisdictions must perform case-by-case assessments of all convicted felons who seek to fulfill their civic duty as jurors, because uncompromising and inconsistent policies, in part, delegitimize the law and hinder reentry efforts.

   Part II details the practice of felon jury exclusion, outlining the scope, application, and rationalization of record-based juror eligibility statutes. Part III examines the purposes and approaches for regulating a convicted felon's access to the legal profession. Part IV challenges the presumption that convicted felons threaten the probity of the jury by exposing the inconsistent conceptualizations of character at work in a majority of jurisdictions. Part IV critically assesses the inherent bias rationale for felon jury exclusion, questioning its validity by exploring the requisite duties of the lawyer and the juror. Part V acknowledges likely criticisms of challenging felon jury exclusion statutes contextually. Part VI reviews Tyler's theoretical framework, concluding that standardized individual assessments are normatively superior to inconsistent procedures that include blanket exclusions, as such uniform assessments elicit respect for the legal system and foster successful reintegration.

2. THE FELONIOUS JUROR

   In the United States, the "felon" label has become increasingly salient. (25) For those to whom the criminal justice system affixes this permanent mark, there are a host of lasting consequences. (26) Specifically, certain restrictive legal constructs curtail the civic freedoms of a convicted felon. (27) Moreover, "collateral sanctions" (28) or "discretionary disqualifications" (29) are "often unknown to the offenders to [whom] they apply." (30) Included in this '"national crazy quilt of disqualifications and restoration procedures"' (31) are legislative provisions that categorically limit or eliminate a convicted felon's chance to serve on a jury.

   1. The Mechanics of Felon Jury Exclusion

      To serve on a jury, a citizen must preliminarily meet statutorily enumerated juror eligibility requirements. Generally, all juror eligibility statutes require that prospective jurors: 1) are United States citizens; 2) are at least eighteen years of age; 3) live in the state and country in which they are summoned; 4) and possess a working knowledge of the English language. (32) Thus, for most citizens, establishing their eligibility to take part in the jury process is a relatively straightforward task, rarely resulting in dismissal. But for convicted felons, an additional record-based juror eligibility criterion often curtails, to some degree, their opportunity to partake in jury service. (33)

      For example, California, a state that permanently expels convicted felons from the jury process, requires that a potential juror complete a "juror affidavit questionnaire" (34) prior to becoming part of the venire. This questionnaire lists California's juror eligibility requirements and instructs potential jurors to indicate those they do not meet. In relevant part, the juror affidavit questionnaire reads, "I am not qualified to serve as a prospective trial juror because I ... have been convicted of a felony or malfeasance in office." (35) Completed and collected by an officer of the court at the outset of the jury selection process, (36) the juror affidavit questionnaire operates to categorically exclude all those with a felonious criminal history, foreclosing the possibility that a convicted felon might possess the requisite characteristics of a fit juror.

   2. Jurisdictional Approaches to Felon Jury Exclusion

      Felon jury exclusion provisions roughly divide into two types: those that absolutely remove a convicted felon's chances of ever serving as a juror (lifetime ban), (37) and those that allow for the possibility that a convicted felon might, at some point, decide a litigated matter (others). (38) Thirty-one states and the federal court system make convicted felons permanently ineligible to take part in the adjudicative process (lifetime bans). (39) Yet, apart from these lifetime bans, felon jury exclusion provisions vary significantly. (40) "Ten states ... exclude felons during the time that they are under sentence, under the supervision of the criminal justice system, or in prison;" (41) three states "allow parties to challenge felons for cause for life at the discretion of the court;" (42) five states "provide hybrids of various severity, either providing different rules for different situations, or using a rule combining penal status and some term of years;" (43) and two states place no restrictions on felon jury service, (44) Hence, while divergent statutory schemes comprise a "patchwork" (45) of standards, an overwhelming majority of jurisdictions banish felonious jurors for life.

   3. Justifying Felon Jury Exclusion

      Jurisdictions rationalize the exclusion of convicted felons from jury service by asserting that convicted felons "threaten the probity of the jury" (46) and are "inherently biased against the government." (47) Hence...