Casual Ostracism: Jury Exclusion on the Basis of Criminal Convictions
Anna Roberts, 98 Minnesota Law Review 592
According to the article's author, statutes in forty-eight states permit the exclusion of those with felony convictions from criminal juries; thirteen states permit the exclusion of those with misdemeanor convictions. The author argues that the reasons given for these exclusions, which include the assumption that those with convictions are embittered against the state, do not justify their costs. Procedural justice theories indicate that embitterment of those with criminal convictions need not–and should not–be assumed. Rather, the author argues, policymakers should do what they can to avoid such embitterment.
This article therefore proposes that automatic statutory exclusions on the basis of criminal convictions should be abandoned. If a juror exhibits individual bias, the author argues, he or she can be excused for cause. If the state presumes embitterment in the absence of any showing of individual bias, it can exercise peremptory challenges. These are finite in number, and thus exact a litigation cost that may incentivize reform. A rich body of recent scholarship proposes adjustments to prosecutorial incentives in other areas of the criminal justice system; this article adds a focus on jury exclusion to that literature, and to other recent policy critiques.