The Jury Selection Working Group of the Roundtable on Racial Disparities in Massachusetts Criminal Courts has released a new research brief, Inequitable and Undemocratic: A Research Brief on Jury Exclusion in Massachusetts and a Multipronged Approach to Dismantle It.
Jury service is one of the core rights and responsibilities of citizenship, but around the country, people are commonly barred from jury service due to a criminal record. While no state allows currently incarcerated or detained people to serve on juries, some states have moved to eliminate or reduce the extent of disenfranchisement that people with felony convictions and their loved ones face in jury participation. Massachusetts should be next.
At any given time in the Commonwealth, a conservative estimate of 95,000 people are disqualified from jury service for seven years because of a felony conviction, a pending felony charge, or current incarceration. This type of exclusion is based on fears that jurors with convictions are less committed to the integrity of the process and will harbor biases against prosecutors and other members of law enforcement. Social science research offers little basis of support for claims related to such fears, however, calling into question the inherent fairness of Massachusetts’ policy.
For at least three reasons, Massachusetts’ policy is both illogical and undemocratic, undermining civic engagement and operating as a form of temporary civil death akin to voter disenfranchisement. First, the policy disrupts the presumption of innocence, barring jury service for people merely accused of felony offenses. Second, it eliminates potential jurors with unique and valuable perspectives borne from diverse life experiences, including contact with the criminal legal system. And third, because it bars people from jury service for seven years after a felony conviction, it also creates the unexpected result that people given longer carceral sentences–presumably for more serious offenses–are deemed more fit for jury service upon their release from custody than people who receive shorter sentences of incarceration or who are never sentenced to incarceration at all. For instance, although women who are convicted of felonies serve shorter average sentences than men, because the policy mandates jury disqualification for seven years post-conviction, women spend significantly more time than men in community excluded from jury service. Thus, in practice, the policy is more punitive toward women with felony convictions than similarly situated men.
The Commonwealth’s jury disqualification policy is also racially inequitable. Relative to their population representation, Black people in Massachusetts are convicted of felonies at more than four times the rate among White people, and Hispanic people are convicted of felonies at more than two-and-a-half times the rate among White people. Thus, even though research has shown that more diverse juries lead to more reliable and less racially biased convictions, policies of felony exclusion predictably exclude people of color, and disproportionately Black people, from jury service. Further, in part because juries are both predominantly White and disproportionately White, even in racially diverse districts in Massachusetts and across the nation, people of color, and Black people in particular, are more likely to face wrongful convictions (and exonerations). For people with criminal convictions, jury disqualification also prevents reintegration into the community. Ensuring jury diversity thus has direct, tangible consequences on people’s lives.
In this new research brief, the Jury Selection Working Group explores an integrated approach to removing barriers to jury participation for people with felony convictions, pending felony charges, and other criminal legal system contacts. Research demonstrates that eliminating the felony jury exclusion is practicable, equitable, and administrable–producing fairer, more representative juries, improving community safety through community reintegration, and removing one of the most glaring mechanisms of racial disproportionality in composing the venire (the pool of people called to jury service from which a jury is chosen). But the experience of other jurisdictions suggests the need for a holistic approach to ensure that eliminating the de jure felony exclusion does not give way to a continuing de facto expulsion of people with criminal records or their loved ones from juries.
To ensure that people with criminal records make it not only into the jury pool but into the courtroom, the jury box, and the deliberations room, eliminating the statutory exclusion of people with recent felony convictions from jury service may not be enough. This is particularly so where research shows that Black and Hispanic people are significantly more likely than White people to be related to someone who has personal experience in the criminal legal system, and to be excluded from jury service on that basis. Therefore, this research brief offers a series of recommendations, including removing the felony disqualification, proactively notifying newly eligible jurors of their rights, adjusting the standards governing challenges for cause and peremptory challenges during jury selection, and affirmatively reinstating jury eligibility for people previously disqualified and eliminated from the jury rolls by virtue of a felony record or pending felony charge. This multipronged approach pulls from social science research and from peer jurisdictions to develop a promising path to produce more representative, democratic, and equitable juries in the Commonwealth.