BILL ANALYSIS Ó
AB 324
Page 1
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
AB 324
Page 2
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.
AB 324
Page 3
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.)
AB 324
Page 4
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.
AB 324
Page 5
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
AB 324
Page 6
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
AB 324
Page 7
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.
AB 324
Page 8
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.
AB 324
Page 9
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
AB 324
Page 10
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
AB 324
Page 11
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).)
AB 324
Page 12
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.
AB 324
Page 13
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)
AB 324
Page 14
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
AB 324
Page 15
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
AB 324
Page 16