Casual Ostracism: Jury Exclusion on the Basis of Criminal Convictions
Seattle University School of Law
June 24, 2013
98 Minn. L. Rev. 592 (2013)
Seattle University School of Law Research Paper No. 13-25
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 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, 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, 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.
Number of Pages in PDF File: 57
Keywords: jury, juries, juror, race, conviction, procedural justice, collateral consequence, cause challenge, peremptory challenge
JEL Classification: K14, K41
Date posted: March 16, 2013 ; Last revised: June 29, 2015
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