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 must be embittered against the state, do not justify their costs. The procedural justice model suggests 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 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.
Volume 98 - No. 2
- Note: Maximizing the Min-Max Test: A Proposal To Unify the Framework for Rule 403 Decisions
- Note: Anticompetitive Until Proven Innocent: An Antitrust Proposal To Embargo Covert Patent Privateering Against Small Businesses
- New Economy, Old Biases
- Will LGBT Antidiscrimination Law Follow the Course of Race Antidiscrimination Law?
- “The More Things Change . . .”: New Moves for Legitimizing Racial Discrimination in a “Post-Race” World
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