BILL ANALYSIS                                                                                                                                                                                                    



                                                                     AB 324


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          Date of Hearing:  April 14, 2015


                          ASSEMBLY COMMITTEE ON JUDICIARY 


                                  Mark Stone, Chair


          AB 324  
          (Jones-Sawyer) - As Amended April 6, 2015


          SUBJECT:  TRIAL JURORS: ELIGIBILITY


          KEY ISSUE:  SHOULD A PERSON WITH A PRIOR FELONY CONVICTION HAVE  
          HIS OR HER RIGHT TO JURY SERVICE RESTORED AFTER COMPLETING ALL  
          FELONY SENTENCING REQUIREMENTS?


                                      SYNOPSIS


          Under existing law, a person who has been convicted of a felony  
          is excluded from jury service.  This has been the practice since  
          the state's constitution was drafted in 1849 and possibly before  
          that time.  Thirty-one states, including California and the  
          federal government, permanently exclude ex-felons from serving  
          as jurors, (unless their civil rights have been restored).   
          Seventeen other states have some sort of restriction (though  
          less than permanent), of felons' participation in jury service.   
          Colorado and Maine are the only two states which allow felons to  
          participate in jury service without restrictions.  According to  
          the co-sponsor of this bill, A New Way of Life Re-Entry Project,  
          there are nearly 300,000 people incarcerated for a felony  
          conviction, at any given time in California.  Upon completion of  
          their sentences, they return to their communities and join the  
          other hundreds of thousands people who are excluded from serving  








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          on trial juries.  A disproportionate number of those subject to  
          this exclusion are African-American and Latino.  This bill seeks  
          to grant ex-felons the right to participate in jury service,  
          once they have completed the terms of their sentencing  
          requirements.  Felons will no longer be required to attain the  
          very elusive "restoration of one's civil rights" in order to  
          serve on a jury, which is currently required under existing law.  
           This bill also aligns statutory law with the state Constitution  
          by adding the crimes of bribery, forgery and perjury to the list  
          of convictions that exclude a person from jury service.   
          Supporters, including human rights organizations, reentry  
          advocacy groups, community organizing networks and defense  
          attorneys, believe that allowing ex-felons the right to serve on  
          a jury is long overdue and should be granted just as to the  
          right to vote was restored to ex-felons more than forty years  
          ago.  Those in opposition, various law enforcement organizations  
          and agencies, believe felons are likely to have a bias against  
          the government and police and would bring those biases with them  
          into the jury room.  They also allege that a dangerous situation  
          is created when law abiding citizens are forced to be locked in  
          a jury room with ex-felons, who may be repeat, violent  
          offenders.  


          SUMMARY:  Modifies the statutory eligibility and qualification  
          requirements of a prospective trial juror to include a person  
          with a felony conviction.  Specifically, this bill:  


          1)Allows a person with a felony conviction to participate in  
            jury service, after the completion of probation, parole,  
            post-release community supervision, or mandatory supervision  
            for the conviction of a felony. 
          2)Aligns Section 203 of the Code of Civil Procedure with Article  
            VII, Section 8(b) of the California Constitution by excluding,  
            persons who have been convicted of bribery, perjury, forgery,  
            or other "high crimes" from serving as prospective trial  
            jurors.









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          EXISTING LAW:  


          1)All persons are eligible and qualified to be prospective trial  
          jurors, except the following:


            a)  Persons who are not citizens of the United States.

            b)   Persons who are less than 18 years old.

             c)   Persons who are not domiciled in California, as  
               determined by Article 2 of Chapter 1 of Division 2 of the  
               Elections Code.

             d)   Persons who are not residents of the jurisdiction where  
               they have been summoned to serve.

             e)   Persons who have been convicted of malfeasance in office  
               or a felony, and whose civil rights have not been restored.

             f)   Persons who do not possess sufficient knowledge of the  
               English language.

             g)   Persons who are serving as grand or trial jurors in any  
               court in the state.

             h)   Persons who are the subject of conservatorship.  


          2)No person will be excluded from eligibility for jury service  
            in the state, for any reason other than those provided in this  
            section.  (Code of Civil Procedure Section 203.)


          3)Defines a felony as an offense punishable by death or  
            imprisonment for more than one year. (Penal Code Section 17.)









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          4)Provides that laws must be made to exclude persons convicted  
            of bribery, perjury, forgery, malfeasance in office, or other  
            high crimes from office or serving on juries.  (Article VII,  
            Sec. 8(b) of the California Constitution.)


          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal.


          COMMENTS:  Article VII Section 8(b) of the California  
          Constitution, excludes felons from jury service.  The practice  
          of excluding persons with felony convictions from jury service  
          goes all the way back to the original drafting of the state  
          Constitution in 1849, which borrowed its language from the U.S.  
          Constitution.  From 1849 until 1974, both voting and jury  
          service were privileges denied to persons with felony  
          convictions.  In 1974, following the United States Supreme Court  
          decision that found that the denial of the right to vote did not  
          violate the Due Process Clause of the U.S. Constitution  
          (Richardson v. Ramirez (1974) 418 U.S. 24.), California voters  
          adopted Proposition 10 to amend the state Constitution and  
          restore the right to vote to ex-felons.  Unfortunately, a  
          similar vote has not occurred to amend the state Constitution  
          and grant to persons with felony convictions the right to serve  
          on juries.  This bill amends Section 203 of the Code of Civil  
          Procedure to allow felons to participate in jury service after  
          the requirements of their felony sentences have been completed. 


          The current practice of felon jury exclusion in the United  
          States.  Thirty-one states, including California and the federal  
          government, permanently exclude felons from serving as jurors,  
          (unless their civil rights have been restored).  Seventeen other  
          states have some sort of restriction (though less permanent), on  
          felons' participation in jury service.  Colorado and Maine are  
          the only two states which allow felons to participate in jury  
          service without restriction.








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          The author explains the reason for the bill as follows:


               A majority of United States jurisdictions bar felons from  
               jury service permanently, creating a class of citizens  
               who are defined and punished by the criminal justice  
               system [,] but unable to impact its function.  These  
               [jury] exclusion statutes bar felons from the jury  
               process because they allegedly harbor a bias so  
               irreparable, [that] they are deemed incapable of  
               rendering a decision in line with the prosecution.  It is  
               much more appropriate to have an individualized  
               assessment of juror fitness through the jury selection  
               process.  If we want people who have been convicted of  
               crimes to return to society[,] and be functioning members  
               of society[,] then we must restore their civil rights,  
               including the right to serve on a jury.


          There are three common justifications for excluding felons from  
          jury service.  In considering the numerous theories or  
          justifications that attempt to justify why felons should be  
          excluded from the jury process, there are three common theories.  
           One justification, established centuries ago, is that a person  
          who has committed a felony, has in fact "wronged" society at  
          large and should therefore forever be denied certain rights and  
          privileges that are afforded to the general population (such as  
          the right to vote and to serve as a juror).  


          The problem with this theory is that it contradicts one of the  
          main purposes of incarcerating felons, to create an environment  
          and opportunity for correction and rehabilitation.  Once a felon  
          has served his or her time in confinement and completed the  
          entirety of his sentencing requirements, has he or she not paid  
          penance for that prior societal wrong?  Should the denial of  
          one's civil rights last forever?  If so, what is the purpose of  








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          requiring that a felon become rehabilitated?  California grants  
          ex-felons the right to vote after imprisonment and parole are  
          completed.  Being allowed to participate in jury service is a  
          way to help further reintegrate ex-felons into our society and  
          into their respective communities.  


          A statement that epitomizes the significance of jury service is  
          contained in a research paper written by Brian Kalt which  
          states, "Jury service is the pinnacle of democratic  
          participation; by serving on a jury, a citizen is a citizen in  
          the most direct way.   Voting is relatively anonymous and one  
          vote almost never makes a difference.   Jurors, by contrast,  
          have direct and obvious effects.  Where a unanimous verdict is  
          required, jurors vote publicly (if they reach a verdict) and one  
          vote always makes a difference.  Even where unanimity is not  
          required, and even when a juror is on the losing side, the  
          interchange that is required to reach a verdict brings the juror  
          closer to the ideals of direct democracy than any other  
          activity.  Such democratic participation is valuable to anyone  
          who engages in it, and perhaps more so to felons." (Brian C.  
          Kalt, The Exclusion of Felons from Jury Service, 79.)  This  
          bill, by allowing ex-felons to engage in the democratic process,  
          while serving a significant civic duty, appears to be consistent  
          with the principles expressed by Kalt.


          Another common justification for excluding ex-felons from jury  
          service is that an ex-felon, by the nature of his or her prior  
          action, lacks the integrity required of a juror (i.e. they are  
          not considered "beyond reproach").  According to the book, We  
          The Jury: Jury Selection and the Cross-Sectional Idea, by J.  
          Abramsom, there was a time in our country's history when the  
          courts only impaneled "blue-ribbon juries."  The thought was  
          that justice required service of citizens-all male and all  
          white, of course-who were above average levels of "intelligence,  
          morality, and integrity."  So in place of the random selection  
          process that is used today for jury pool composition, jury  
          commissioners typically solicited the names of "men of  








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          recognized intelligence and probity" from notables or "key men"  
          of the community. As recently as 1967 a survey showed that 60  
          percent of federal courts still relied primarily, on the  
          so-called "key men" system for soliciting names of prospective  
          jurors.  It wasn't until 1968, with the Jury Selection and  
          Service Act that Congress abandoned this system in favor of the  
          current "fair cross section of the community" standard for trial  
          jurors in federal courts.  This standard was extended to state  
          courts in 1975 by the United States Supreme Court requiring that  
          a jury pool be a mirror image or microcosm of the eligible  
          community population. (Taylor v. Louisiana, 419 U.S. 522  
          (1975).), J. Abramsom, We The Jury: The Jury System and the  
          Ideal of Democracy, 99 (Paperback Edition 2000).  In order to  
          have a true cross-section representation of our society and a  
          jury that mirrors the community's population, all community  
          members, with extremely limited exceptions, should have the  
          opportunity to participate in jury service, including ex-felons  
          who have completed the terms of their felony sentence  
          requirements.


          The third justification for excluding ex-felons from jury  
          service is based on the belief that ex-felons harbor a bias  
          against the government and therefore would not be able to render  
          a fair decision.  This assumption requires that one believe that  
          an entire class of people, namely ex-felons, automatically have  
          a bias against the government and therefore cannot be fair  
          jurors.  Where is the foundational basis for this assumption?   
          While there are very likely some felons who hate the police and  
          hate the government, aren't there also average citizens, with no  
          felony convictions, who feel the same way?  What about those  
          ex-felons who, while serving their time, finished high school,  
          learned a trade or skill, and actually allowed the experience to  
          rehabilitate their lives?  Would they still be biased against a  
          system that helped to change their lives and improve their  
          future prospects?  Maybe or maybe not, but a generalized  
          assumption in this regard is totally unsubstantiated and  
          therefore harmful because it serves to deny a large portion of  
          the population a significant civil right.  








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          There are better ways to combat bias in prospective jurors.   
          Every person has some form of bias.  A juror who has had a  
          life-threatening experience with a hit and run driver probably  
          wouldn't be the best juror to sit on a jury for a case involving  
          a hit and run accident.  However, that same prospective juror  
          might be perfect for a case involving a burglary, white collar  
          crime or one of many other types of crimes.  A person who had a  
          bad experience with an employee of a local police department  
          might have a bias against that employee or the entire  
          department.  That same person might be perfectly capable of  
          being unbiased on a tax evasion case or a child endangerment  
          matter.  Bias depends on the past experiences of each  
          individual, one reason why the jury selection process is so  
          important to the entire court trial system.  

          Voir dire is a formal, pre-trial examination process that is  
          used to determine the qualification and suitability of each  
          potential juror.  The process is intended to help the parties  
          identify and weed out jurors who are biased and would not serve  
          well on a particular case due to the facts and evidence involved  
          in the case.  The voir dire process can be extremely informative  
          because there are always two types of communication: verbal and  
          non-verbal.  A good trial attorney hones his or her skills to  
          detect and read non-verbal cues.  The best way to select a good  
          juror for a particular case is to ask questions and to gather  
          information about that person's life, background and  
          experiences.  The best jury is one that consists of persons who  
          have a wealth of experiences and varying perspectives of the  
          world.  An ex-felon has firsthand experience of the criminal  
          justice system because he or she has been intimately involved in  
          it.  Who better to bring that kind of perspective to the jury  
          pool than someone with that background and experience?  When a  
          jury represents members of the entire community, there is a  
          greater chance that the deliberations will be enhanced by all of  
          their life experiences.  









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          The racial impact of excluding felons from jury service.   
          According to a report by the U.S. Bureau of Labor Statistics,  
          thirteen million people, including approximately 30% of black  
          men, are banned for life from jury service because they are  
          ex-felons.  These numbers are based on the incarceration rates  
          from 1925 to 2001, and do not include any recent incarceration  
          statistics, which would most likely increase that number  
          significantly due to the prison boom that only began to  
          decreased in recent years.  According to a 2013 study by the  
          Public Policy Institute of California (CPPC), "African American  
          men are dramatically more likely to be imprisoned than other  
          minority groups.  More than half of California's adult male  
          population is nonwhite or Latino (56%), but these groups make up  
          three of every four men in prison: Latinos are 41%, African  
          Americans are 29%, and other races are 6%.  Among adult men in  
          2010, African Americans were incarcerated at a rate of 5,525 per  
          100,000, compared to 1,146 for Latinos, 671 for non-Latino  
          whites, and 43 for Asians."  (Bureau of Justice Statistics, U.S.  
          Department of Justice, Sourcebook of Criminal Justice Statistics  
          2001 tbl. 6.23 at 494 (2002); Ryken Grattet and Joseph Hayes,  
          California's Changing Prison Population, Public Policy Institute  
          of California, June 2013.)  By allowing ex-felons to participate  
          in the jury process, this bill would allow more men of color to  
          be entered into the jury pool, creating a more representative  
          sample of the state's diversity.


          Restoration of civil rights following a felony conviction.   
          Currently, in California the only way an ex-felon may  
          participate in the jury selection process is to have his or her  
          civil rights restored.  Having one's civil right restored after  
          a felony conviction is an onerous task, and can be nearly  
          impossible in certain states.  Under federal law, restoration of  
          one's civil rights can only occur by Presidential Pardon.  While  
          that may seem extreme, California's process is not much better.   
          There are two avenues in the state for the restoration of one's  
          civil rights, a Certificate of Rehabilitation, or a Governor's  
          Pardon.  A Certificate of Rehabilitation is an Order by a  








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          Superior Court Judge declaring that a person's criminal history  
          is past and that the person is now rehabilitated.  (Penal Code  
          Section 4852.05.)  The process involves the court's review of  
          specified information submitted by the applicant and the  
          subsequent decision to grant or deny the applicant's request.   
          (Ibid.)  Once granted, the Certificate serves as a  
          recommendation to the Governor for a Pardon.  The Certificate  
          application process takes time and skill, but a successful  
          outcome is not guaranteed.  A Governor's Pardon is granted at  
          the Governor's discretion and can take many years to be granted,  
          if it is granted at all.  (Penal Code Section 4852.16.)  The  
          challenges presented by both processes serve as systemic  
          deterrents to ex-felons who wish to one day participate in the  
          jury selection process.  While this path may be an option for  
          the very few ex-felons with the financial resources or political  
          connections, it is not an option for the majority of ex-felons.   
          This bill removes the restoration of rights requirement,  
          allowing the privilege of jury service to extend to every  
          ex-felon who has completed his felony sentencing requirements.


          Ending the punishment once a person has served his or her  
          imposed sentence.  Article VII, Section 8(b) of the state  
          Constitution originally included the right to vote as one of the  
          privileges permanently lost by conviction of a felony.  However,  
          in 1974 the citizens of California adopted a constitutional  
          amendment to eliminate the provision that denied voting rights  
          to ex-felons who are no longer in prison or on parole.  More  
          than forty years have passed since California citizens made the  
          conscious choice to restore voting privileges to ex-felons.  The  
          people, at least on that occasion, agreed that once an ex-felon  
          is no longer in prison or on parole, an important civil right  
          should automatically be restored.  


          As part of their American Jury Project, the American Bar  
          Association in 2005, published standards on jury service  
          entitled "Principles for Juries and Jury Trials".  In the  
          preamble of the report, the ABA noted its "recognition of the  








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          ongoing need of the legal community to refine and improve jury  
          practice so that the right to jury trial is preserved and juror  
          participation enhanced".  Nineteen principles were illuminated  
          in the report as the ABA's fundamental aspirations, including  
          Principal Two which outlined those persons who should be  
          excluded from jury service.  In that regard, the report limits  
          the exclusion of felons from jury service to only those who  
          "have been convicted of a felony and remain in actual  
          confinement, on probation, on parole or under other court  
          supervision."  The ABA's goal, as demonstrated by the report, is  
          to include within jury service, felons who have served their  
          time and completed their sentencing requirements.  California  
          has the opportunity to restore this civil right to thousands of  
          its citizens and to practice true realignment by allowing  
          ex-felons to reengage and reconnect within their communities  
          through jury service.  (See American Bar Association, Principles  
          for Juries and Juries Trials-American Jury Project (2005).)


          Aligning the state jury exclusion statute with the state  
          Constitution.  Along with felons, Article VII, Section 8(b) of  
          the California Constitution currently excludes those convicted  
          of bribery, perjury, forgery, malfeasance in office, or other  
          "high crimes" from serving as jurors.  However, the Code of  
          Civil Procedure Section 203(a)(5), which outlines the types of  
          convictions which exclude persons from being eligible to serve  
          on a jury, only lists those persons convicted of malfeasance in  
          office and those persons with a felony conviction.  This bill  
          will align the state Constitution with the statute defining  
          juror eligibility by excluding those persons who have been  
          convicted of perjury, forgery, bribery, malfeasance in office  
          and other "high crimes." (California Constitution, Article VII,  
          Section 8(b).)  "High crimes" are "those punishable offenses  
          that only apply to high persons, that is, to public officials,  
                                 those who, because of their official status, are under special  
          obligations that ordinary persons are not under, and which could  
          not be meaningfully applied or justly punished if committed by  
          ordinary persons."  (Jon Roland, Meaning of High Crimes and  
          Misdemeanors, Constitutional Society (1999).)








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          Different standards for the right to vote and the right to serve  
          on a jury.  Of the crimes listed above, the only ex-felons who  
          will be excluded from jury service are those who have not  
          completed probation, parole, post-release community supervision,  
          or mandatory supervision for the conviction of a felony and  
          those convicted of felonies involving moral turpitude.  This  
          language is distinct from the language in CCP Section 203,  
          granting voting rights to ex-felons, which states that the  
          person may exercise their right to vote so long as the person is  
          "not in prison or on parole for the conviction of a felony."  A  
          person who votes does so singularly, and is not required to  
          stand in judgment of another person when exercising that right.   
          With the changes occurring as our state institutes and supports  
          realignment efforts, it seems prudent, when restoring the rights  
          of ex-felons to serve as jurors, to ensure that all of the  
          ex-felon's sentencing requirements have been completed.  This  
          bill contains language to ensure that the ex-felon has, in fact,  
          completed his or her sentence, as well as the term of his or her  
          probation, parole, or post-release community supervision, or  
          mandatory supervision.


          ARGUMENTS IN SUPPORT:  This bill enjoys support from a wide  
          range of groups, including human rights organizations, reentry  
          advocacy groups, community organizing networks, and defense  
          attorneys.  According to the sponsor, A New Way of Life Re-Entry  
          Project:


               At any given time in California, nearly 300,000 people  
               are incarcerated for a felony conviction.  The vast  
               Majority will complete their sentences and return to  
               their communities-and will join hundreds of thousands of  
               people who are preemptively barred from jury service.  A  
               disproportionate percentage of these people are  
               African-American and Latino.









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               The blanket exclusion of people with felony  
               convictions-without the individualized consideration  
               afforded to other citizens during voir dire-perpetuates  
               harmful and inflexible generalizations about the  
               characteristics of "felons" and the place of people with  
               felony convictions in society, and disenfranchises entire  
               demographics of people, with 1 in every 6 African  
               American man incarcerated nationwide.


          ARGUMENTS IN OPPOSITION:  Opponents of the bill include local  
          and state law enforcement agencies.   The Los Angeles County  
          Professional Peace Officers Association, among others, writes: 


               Convicted felons possess a very real and frequently  
               hostile bias against the laws of our state and especially  
               against dedicated peace officers who have sworn to  
               enforce those laws.  These felons are likely to exhibit  
               their anti-police bias in criminal cases and in civil  
               cases where officers are either witnesses or a party.


               We are concerned for the safety of the non-criminal  
               jurors who would be required by law to remain in close  
               quarters for extended periods of time with repeat,  
               violent offenders.


               Our society does not mandate its citizens live next-door  
               [to] violent offenders.  Nor does it require employers to  
               hire or landlords to rent to dangerous criminals.   
               However, AB 324 would force law-abiding citizens into  
               potentially dangerous situations in shuttered jury rooms  
               and during sequester.


          Previous Related Legislation.  AB 1401 (Committee on Judiciary)  








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          2013, which was vetoed by the governor, would have allowed  
          lawful permanent immigrants or citizens of the United States to  
          serve on juries.  Governor Brown cited in his veto message that  
          jury duty, like voting is "quintessentially a prerogative and  
          responsibility of citizenship.  This bill would permit lawful  
          permanent residents who are not citizens to serve on a jury, I  
          don't think that's right."  None of the concerns about AB 1401  
          are applicable to this bill.  


          REGISTERED SUPPORT / OPPOSITION:




          Support


          A New Way of Life Re-Entry Project (co-sponsor)


          Legal Services for Prisoners with Children (co-sponsor)


          A New Path


          Asian Americans Advancing Justice


          California Public Defenders Association


          California United for a Responsible Budget
          Courage Campaign
          Ella Baker Center for Human Rights
          Families to Amend California's Three Strikes
          Justice Not Jails
          Lawyers' Committee For Civil Rights of the San Francisco Bay  








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          Area
          New Covenant Church
          One Individual
          PICO California
          Root & Rebound
          Rubicon Programs
          San Francisco Tenants Union
          Students for Sensible Drug Policy, Whittier Law School
          The Greenlining Institute


          Opposition


          California State Sheriffs' Association


          Fraternal Order of Police


          Long Beach Police Officers Association


          Los Angeles County Professional Peace Officers Association


          Santa Ana Police Officers Association


          Sacramento County Deputy Sheriffs' Association




          Analysis Prepared by:Khadijah Hargett / JUD. / (916) 319-2334












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