By James Binnall, author of Twenty Million Angry Men: The Case for Including Convicted Felons in Our Jury System
In 1999, when I was twenty-three years old, I caused a DUI wreck that claimed the life of my close friend. For that tragic decision, I ultimately spent 4 years, 1 month, and 6 days in two maximum-security prisons. While inside, I completed my LSAT and was accepted to law school. In 2008, 4 years after my release, I was sworn into the State Bar of California.
The following year, I received my first jury summons as a California resident. When I arrived to court on my day of service, I was ushered into a large room with roughly one hundred other prospective jurors where we were asked to complete our jury questionnaires. The purpose of the questionnaire – the clerk explained – was to determine if we were eligible to serve. Questions focused on age, citizenship, and county of residence. There was also a question regarding criminal history.
At the time, California’s juror eligibility questionnaire asked each prospective juror if he or she had ever been convicted of a felony or malfeasance in office. I answered “yes.” The Clerk then ordered those of us who answered affirmatively to stand and exit the jury lounge. He explained that we were ineligible for service by virtue of our conviction and would not be called again.
As I left the courthouse that day, I stopped to inquire about my juror eligibility. I spoke to the Clerk regarding my criminal conviction, explaining that I was a licensed attorney and that I had represented criminal defendants facing significant penalties in the very same courthouse from which I was now being summarily expelled. He acknowledged the irony, but admitted that he was simply ‘following orders’ and that my concerns would be more appropriately directed at my local state representative. Disheartened, I slid my bar card back into my wallet and left.
In the wake of this re-traumatizing event, I began to conduct research on the statutory exclusion of those with a felony conviction from the jury process. My new book, Twenty Million Angry Men: The Case for Including Convicted Felons in Our Jury System, was born of my own experience as a person with a felony conviction called for and then publicly expelled from jury service. The original goal of the book was to create a literature where none existed. What emerged is far broader. In my research, I found that those of us with a felony criminal history betray the assumptions that drive record-based restrictions. Many conceive of us as merely bundles of risk to be managed and separated from democratic institutions, but my work suggests the opposite—that we are in fact valuable resources. Although the dominant legal perspective holds that those who have been part of the system are incapable of conscientiously and impartially weighing in on its direction, this ostensibly endorses the devaluation of those with a criminal history, and does so in error. Twenty Million Angry Men makes clear that those with a conviction history have worth – as jurors and beyond – bringing a unique and helpful perspective to the jury process that enhances rather than detracts from deliberations.
The implications of this for our justice system and for the jury selection process in particular, are far-reaching. In 2020, nationwide protests erupted after a series of encounters that saw multiple unarmed Black Americans killed by law enforcement personnel. In response, calls for justice rang loudly and questions arose about decisions to charge, the types of charges brought, and of course, the likelihood that any jury would ever convict. Along those lines, the fitness of prospective jurors drew increased attention from the media, legislators, and academics. Of primary concern was whether a criminal defendant could secure a fair trial in the wake of such intense pre-trial publicity. What followed was extensive debate about biases and juror impartiality. And while commentators offered a stream of opinions on the matter, most were silent about a ubiquitous, salient class of statutes that serve to homogenize jury pools both experientially and racially.
Consider the case of Ahmaud Arbery, a young Black man killed by three white men in Glynn County, Georgia. On November 3, 2021 the jury in the case was finalized. While 11 white Georgians were seated, only a single Black juror was empanelled despite the racial makeup of the county, which is comprised of 27% Black citizens. A juror eligibility statute in Georgia permanently excludes those with a felony conviction from jury service. Research has demonstrated that in Georgia, and elsewhere, such exclusions disproportionately impact Black and Latinx citizens, who are far more likely to bear the mark of a felony conviction than are their white counterparts. The result: an insidious feedback loop in which Black and Latinx citizens are excessively subject to a criminal justice system that they have little ability to influence.
The importance of diverse juries cannot be overstated. Studies have demonstrated that diverse juries deliberate longer and more thoroughly. Diverse juries also help to instill confidence in our jury system and support for resulting verdicts. Research makes clear that the public views diverse juries as fairer and more legitimate than those that are racially homogeneous. Twenty Million Angry Men demonstrates that those with a felony conviction do not threaten the integrity of the jury – quite the opposite – they tend to legitimize the process.
In 2019, California became the first jurisdiction in nearly two decades to soften its juror eligibility criteria to include most Californians with a felony criminal conviction. And while notification of the legislative change has lagged, leading some to question the efficacy of the measure, California’s reform efforts in this area are promising. Going forward, I urge other jurisdictions to look at the research as they consider the utility of banning millions of Americans from the jury process. An evidence-based approach to juror eligibility is a step toward truly diverse juries, and a step toward actually respecting the ideals of rehabilitation and pro-social change.