A Field Study of the Presumptively Biased: Is There Empirical Support for Excluding Convicted Felons from Jury Service?

• Date: 01 January 2014
• Author: James M. Binnall
• Published date: 01 January 2014
• DOI: http://doi.org/10.1111/lapo.12015

A Field Study of the Presumptively Biased:

Is There Empirical Support for Excluding

Convicted Felons from Jury Service?

JAMES M. BINNALL

In the United States, a vast majority of jurisdictions statutorily exclude convicted

felons from jury service. Justifying these exclusions, lawmakers and courts often

cite the inherent bias rationale, which holds that convicted felons harbor a

prodefense/antiprosecution pretrial bias that would jeopardize the impartiality of

the jury process. The inherent bias rationale has never been the subject of empiri-

cal analysis. Instead, authorities seemingly accept the logic of the rationale

unconditionally. This study (1) explores the prevalence, strength, and direction of

convicted felons’ pretrial biases; (2) compares the group-level pretrial biases of

convicted felons, nonfelon eligible jurors, and nonfelon law students; and (3)

examines if and how a felony conviction shapes pretrial biases. The results of

this study indicate that a majority of convicted felons harbor a prodefense/

antiprosecution bias and, in this way, differ from eligible jurors generally. Yet, the

results of this study also show that many convicted felons are neutral or harbor a

proprosecution pretrial bias, and that the strength and direction of convicted

felons’ group-level pretrial biases are similar to those of other groups of nonfelon

jurors. In sum, this study suggests that while felon jury exclusion does not offend

applicable constitutional standards, it is an imprecise and perhaps unnecessary

practice that may come at substantial costs.

INTRODUCTION

The Legislature could reasonably determine that a person who has suffered the

most severe form of condemnation that can be inflicted by the state—a convic-

tion of felony and punishment therefore—might well harbor a continuing

resentment against “the system” that punished him and equally unthinking bias

in favor of the defendant on trial, who is seen as a fellow underdog caught

in its toils. Because these antisocial feelings would often be consciously or

subconsciously concealed, the Legislature could further conclude that the risk

of such prejudice infecting the trial outweighs the possibility of detecting it in

I would like to thank Mona Lynch, Kathy Zeiler, and Pete Wales for their unwavering support

and tireless effort throughout this project. For their insightful input, I would also like to

thank Shirley Adelstein, Josh Teitelbaum, Tom Tyler, Carroll Seron, Bill Thompson, Nancy

Reichman, and both reviewers at Law & Policy.

Address correspondence to James M. Binnall, University of California at Irvine—

Criminology, Law & Society, 2340 Social Ecology II, Irvine, California 92697, USA. Telephone:

(781) 354-5141; e-mail: jbinnall@uci.edu.

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LAW & POLICY, Vol. 36, No. 1, January 2014 ISSN 0265–8240

© 2013 The Author

Law & Policy © 2013 The University of Denver/Colorado Seminary

doi: 10.1111/lapo.12015

jury selection proceedings. The exclusion of ex-felons from jury service thus

promotes the legitimate state goal of assuring impartiality of the verdict. (Rubio

v. The Superior Court of San Joaquin County 1979 at 101)

Typically, research on the civic marginalization of convicted felons focuses

on those legal measures burdening a convicted felon’s right to vote (Manza

and Uggen 2006). Yet, for those who bear the felon label, exclusion from the

electorate is not the sole barrier to meaningful civic participation. Forty-nine

states, the federal government, and the District of Columbia restrict a con-

victed felon’s opportunity to serve as a juror (Online Appendix; Figure 1).

Of these jurisdictions, twenty-eight ban convicted felons from jury service

permanently (Online Appendix; Figure 1), eliminating approximately

thirteen million Americans from the national jury pool (Uggen, Manza, and

Thompson 2006; Kalt 2003).

Justifying the statutory exclusion of convicted felons from jury service,

policymakers and courts cite a need to protect the adjudicative process from

those who might compromise its integrity (Kalt 2003). Purportedly, would-be

felon jurors threaten the jury’s neutrality because they harbor an “inherent

bias” (ibid., 105), making each sympathetic to criminal defendants and

adversarial toward prosecutorial agents.1As the District of Columbia Court

of Appeals explains, “[t]he presumptively ‘shared attitudes’ of convicted

felons as they relate to the goal of juror impartiality are a primary reason for

the exclusion” (Carle v. United States 1998 at 686).3

Though an extensive body of research focuses on the pretrial biases of

prospective jurors, no study has assessed the viability of the inherent bias

rationale. Nevertheless, lawmakers proceed undeterred. Felon jury exclusion

statutes often appear as riders on larger pieces of legislation, seldom eliciting

debate (Travis 2005; Editorial 2003; Rubinstein and Mukamal 2002). And in

those atypical instances during which policymakers consider the wisdom

of barring convicted felons from the venire, they assume the merits of the

inherent bias rationale.

Courts, too, are ostensibly unfazed by a want of empirical evidence on the

inherent bias rationale. Faced with constitutional challenges to felon jury

exclusion statutes, they conduct only cursory reviews. Courts do not force

jurisdictions to clarify or defend their proffered justifications for banning

convicted felons from the venire. Rather, they accept the inherent bias ratio-

nale a priori. Hence, while “[t]here is hardly an opinion involving jury law

that does not cite empirical research findings” (Hans and Vidmar 1986, 5; see

also Vidmar and Hans, 2007), such findings play no role in felon jury exclu-

sion precedent.

Though the jury system performs an adjudicative function, “[i]t would be

a very narrow view to look upon the jury as a mere judicial institution”

(Tocqueville 1835, 282). The jury process is symbiotic. Citizens serve the

justice system by settling legal disputes. At the same time, the jury bestows

on society instrumental benefits, transcending its time-honored station as

a decision-making tribunal (Amar 1995; Haddon 1994). Still, almost all

2LAW & POLICY January 2014

© 2013 The Author

Law & Policy © 2013 The University of Denver/Colorado Seminary

jurisdictions preclude convicted felons from the venire permanently or

temporarily—but at what cost? By imposing such restrictions, jurisdictions

limit the diversity of jury pools (Wheelock 2011) and may forego opportu-

nities to enhance convicted felons’ views of the law (Gastil et al. 2012;

Consolini 1992) and facilitate their enduring civic involvement (Gastil et al.

2010)—two factors linked to criminal desistence (Miller and Spillane 2012;

Manza, Uggen, and Behrens 2006; Tyler 2006).4Despite these potential costs,

however, jurisdictions still justify felon jury exclusion statutes by relying on

an untested, “intuitively based theory of personality” (Sealy 1981, 190).

Felon jury exclusion statutes are categorical and, as such, are seemingly

premised on the claim that convicted felons would harbor a “universal,

unidirectional bias” (Kalt 2003, 106) against the government and in favor of

criminal defendants (Kalt 2003).5Felon jury exclusion statutes also presume

that convicted felons pose a unique threat to the jury process. No other group

of prospective jurors is categorically excluded from the jury pool because of an

alleged pretrial bias. Instead, other groups, which may assumedly harbor some

form of pretrial bias (e.g., law enforcement personnel or crime victims), take

part in the jury selection process; are subject to individual screening; and, if

bias presents, are removed through challenges for cause or peremptory strikes.

This study is the first empirical analysis of the inherent bias rationale. Using

the Revised Juror Bias Scale (Myers and Lecci 1998; Kassin and Wrightsman

1983), I examine the pretrial biases of a group of otherwise juror-eligible

convicted felons (N =242). I then compare convicted felons to a group of

nonfelon eligible jurors (N =245) and a group of nonfelon eligible jurors

currently enrolled in law school (N =218). Three inquiries drive this study.

First, how prevalent is prodefense/antiprosecution bias among convicted

felons? Second, how do the direction and strength of convicted felons’ pretrial

biases compare to other groups of nonfelon jurors? And third, in relation to

demographic and viewpoint factors shown to influence pretrial biases, how

salient is a felony conviction in the formation of such biases? The goal of this

project is to, for the first time, provide data that will inform a debate about

felon jury exclusion statutes and the inherent bias rationale. To that end, this

article surveys the pervasiveness of felon jury exclusion statutes, reviews failed

legal attacks on their enforcement, and details prior empirical research on the

pretrial biases of prospective jurors. This article then describes the methods,

results, and potential weaknesses of a field study of the inherent bias rationale.

And finally, this article discusses the findings of that study, contemplating the

actual and prospective costs of excluding convicted felons from jury service.

THE SEVERITY AND PREVALENCE OF FELON JURY EXCLUSION STATUTES

In the United States, roughly sixteen million citizens bear the “felon” label

(Uggen, Manza, and Thompson 2006). For those to whom the criminal

justice system affixes this permanent mark, its salience makes reentry

Binnall A FIELD STUDY OF THE PRESUMPTIVELY BIASED 3

© 2013 The Author

Law & Policy © 2013 The University of Denver/Colorado Seminary