A jury of one's peers: Virginia's restoration of rights process and its disproportionate effect on the African American community.

• Author: Kutz, Amanda L.

INTRODUCTION

The plaintiff, an African American male, brought an action against the defendant, a white male, for alleged injuries sustained when the defendant's car collided with the plaintiffs car. During voir dire, the judge asked the prospective jurors if any of them had been convicted of a felony. The only African American member in the jury pool looked inquisitive as he slowly raised his hand, and he explained to the judge that he had been convicted of a felony ten years ago. With a sympathetic look on his face, the judge dismissed the prospective juror and explained that under Virginia law all convicted felons are excluded from serving on any jury unless their civil rights have been restored by the state. (1)

Under current Virginia law, convicted felons permanently lose their civil rights unless they apply for, and are granted, a restoration of those rights by the State. (2) These rights include, among others, the right to vote, (3) the right to hold public office, (4) and the right to serve on a jury. (5) The Governor has the sole authority to restore a felon's civil rights. (6) In the summer of 2002, Governor Warner instituted an expedited review process for those convicted of non-violent felonies applying for a restoration of their civil rights. (7) Although the new process has enabled more convicted felons to regain their civil rights, (8) the blanket denial of civil rights to convicted felons who have finished serving their sentence has a significant impact on jury trials, particularly those involving African Americans.

One in four African American males in Virginia is a convicted felon, (9) without the right to serve on a jury. This demonstrates that the exclusion of felons from service on both civil and criminal juries prevents a significant number of African American males in Virginia from representing a fair cross-section of their community in the jury pool. (10) As a result, Virginia's restoration of rights process, although neutral on its face, disparately impacts the African American community and may deprive an accused African American of his right to be tried by a jury of his peers in a criminal trial.

This Note will explore the restoration of civil rights process and its effect on the jury system in Virginia, particularly on the African American community. Part I discusses the creation of the Anglo-American jury and the development of the jury system in America, and it also discusses the important Supreme Court rulings that shape jury composition and the ways in which the State is permitted to exclude prospective jury members. Following the history of the American jury, Part II explains the Supreme Court's fair cross-section requirement for jury representation. Part III analyzes Virginia's restoration of civil rights process by describing the policy as it currently exists and comparing it with proposed legislation, which would have eased the restoration of voting rights process for those convicted of non-violent felonies. Part IV provides a national overview of felony exclusion laws that prohibit felons from serving as jurors, using Virginia as a benchmark. This Part also offers policy arguments against these laws. Part V outlines the arguments for and against Virginia's current policy in the context of both criminal and civil cases. In addition, this Part analyzes the treatment of drug offenders and evaluates specifically how it burdens the African American community. Part VI highlights the constitutional concerns that underlie Virginia's restoration of civil rights process and its effect on the jury system. Specifically, this Part addresses three constitutional issues: the Sixth Amendment's jury of one's peers requirement, the Fourteenth Amendment's due process requirement that laws be racially neutral, and the right to privacy found in the Ninth Amendment, in the context of the requirement that a felon disclose his felony status before being eligible to serve on a jury. In conclusion, this Note proposes that legislation should be enacted that would make all felons eligible to apply for a restoration of their civil rights immediately upon completion of their sentence, using the expedited process for nonviolent felons set forth in the current restoration of rights policy.

1. HISTORY OF THE JURY SYSTEM

   The Anglo-American jury system has its roots in the Magna Carta, which was signed by the King of England in 1215. (11) Prior to the implementation of the Magna Carta, the King served as the head of the legislative, executive, and judicial branches of government. (12) Mounting dissension to the King's tyrannical oppression led the barons of England to draft the Magna Carta, which prohibited the King from punishing anyone unless the individual had been judged by a jury of his peers. (13) Firmly rooted in this English tradition, the right to a trial by jury was adhered to in America after settlement of the colonies. (14) Indeed, in 1606, the Governor of Virginia declared by royal decree that all criminal defendants in the colony would be tried by jury. (15)

   1. The American Colonies and the Jury System

      According to historian J.R. Pole, the early Anglo-American jury served as a practical and economically efficient tool of the government in judicial proceedings. (16) Juries provided a way for members of the community to come together to set community standards, to create a standard of morality, and to instill loyalty to one's community. (17) In colonial America, juries often acted as a form of resistance against the King. Jurors held democratic power over the law imposed upon them, because the King could not decide whether the jury would originate prosecutions, where the trial would be, or who would serve as the jury. (18) The First Continental Congress declared in 1774 that the colonies and their inhabitants were "entitled ... to the great and inestimable privilege of being tried by their peers." (19) A few years later, the Declaration of Independence condemned the King's control over the colonies' judicial system through his appointment of judges and his denial of "the benefit of trial by jury." (20)

   2. Establishing the American Jury System

      In establishing the American judicial system, the newly formed nation grappled with issues of impartiality and locality with respect to juries when formulating the Constitution and deciding rules of criminal procedure. (21) Specifically, Anti-Federalists argued that a local jury would be more familiar with the location in which a crime occurred and also would know the general character of the accused. (22) A local jury with personal knowledge, therefore, would be able to serve as a better judge than a jury foreign to the location and to the criminal defendant. (23) Federalists, however, argued that local representation in making laws would be satisfied in the formation of Congress and state legislatures. (24) A local jury would not be needed to interpret the law based on community norms, as was necessary when the colonists were under British control and the jury served as the colonists' only form of representative government. (25)

      The Federalists and Anti-Federalists compromised on the issue of locality in creating what is now the Sixth Amendment. (26) The Amendment requires criminal defendants to be tried by a jury located in "the State and district wherein the crime shall have been committed." (27) Federalists, who initially opposed the idea of a local jury, retained the language in the Sixth Amendment requiring the accused to be tried in districts created by the federal Judiciary Act. (28) However, Anti-Federalists achieved a victory for local juries, as jury members had to be chosen from the districts where the crime occurred, and Congress could not expand the districts to a size larger than a state. (29) Being tried by a jury composed of local citizens, therefore, eventually became accepted as the defendant's best hope for an impartial trial.

   3. Issues with Jury Representation for African Americans and Women

      In addition to the issues of locality and impartiality, the nation wrestled with the question of jury representation and who constituted "one's peers." Historically, women and African Americans were excluded from jury service. (30) Following the Civil War, African American men became eligible for jury service based on the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments, but southern states continued to deny them their right to serve on a jury until the middle of the twentieth century. (31) Most women did not receive the right to serve on a jury until the early twentieth century. (32)

   4. The Supreme Court and Jury Representation

      By the end of Reconstruction, with the drafting of the Fourteenth Amendment requiring "equal protection of the laws," (33) courts had to decide how the Amendment would affect notions of fairness and representation for newly freed African Americans on trial, who had to be tried by a jury of their "peers." (34) One possibility was for courts to require that, in criminal trials, at least some jurors must be the same race as the defendant. For instance, prior to the United States receiving its independence, a colonial Massachusetts court decided that a jury of one's peers for a Native American accused of a crime should include Native Americans; (35) consequently, the court allowed a jury composed of six Native Americans and six Englishmen to try the Native American defendant. (36) Another possibility was for the courts to construe the "jury of one's peers" requirement to mean only that criminal defendants are entitled to request a trial by jury rather than having a bench trial. Not until its decision in Strauder v. West Virginia (37) did the Supreme Court finally address the issue of what constitutes a representative jury with respect to African Americans.

      In Strauder, the Court held that a jury of one's peers is a jury where the members hold the same legal status within the community as that of the...