In May 2019, the New York State Senate passed a bill that would allow felons who have completed their sentences to serve on juries. It was courageously championed by Senator Brian Benjamin (D) but became too controversial and died in the Assembly. For now, New York’s lifetime ban on jury service for felons remains.
In light of what has happened to America over the last month, now is the time to resurrect this issue that keeps millions of Americans convicted of felonies from serving on juries.
Media coverage of the bill’s passage in the Senate focused on criminal trials, but this issue is also of utmost importance to the civil justice system. While I collaborated on drafting the bill, I didn’t invent the idea. Personal injury lawyers have been discussing it for years.
Allowing the Right to a Jury of Peers
Why do personal injury lawyers care about letting felons serve on juries?
The Seventh Amendment to the U.S. Constitution guarantees the right to a trial by jury. Ask anyone who has ever tried a case, and you will be told that trials are won and lost in jury selection.
It is well documented that minorities are disproportionately represented among those with felony convictions. According to the Federal Bureau of Prisons, African American inmates account for 38% of the prison population, while the last census states they’re only 13.4% of the national population.
In New York, African Americans represent 16% of the population, yet 53% of the prison/jail population. Denying felons the right to serve on juries is far too often denying African Americans the right to a jury of their peers.
You don’t need to be a trial lawyer to understand that juries often relate better to people who look like them. While we like to think of justice as blind, it is not. Would OJ Simpson have been acquitted by an all White jury? Would the officers who beat Rodney King have been acquitted if they’d faced an all Black jury? That trial was moved from Los Angeles to Simi Valley so the officers could get a “fair trial,” i.e., a White jury.
These same principles hold true in injury cases. Minority plaintiffs are not getting fair trials when far too many of their peers are excluded from the jury pool. It is not simply about the color of one’s skin, but also about life experiences that shape jurors’ attitudes. People who end up in prison, regardless of race, often come from poverty, and go through life seeing things that people with greater resources may never encounter.
Take a case where someone is injured at a construction site where workers are forced to toil in unsafe conditions. Or how about the case of someone injured in an apartment complex that is not properly maintained—a trip and fall due to an unleveled elevator, a slip and fall due to leaking pipes. People higher up on the socioeconomic ladder with office jobs who live in buildings with responsive superintendents may look askance at these types of claims.
Vast Majority of Felony Convictions Are for Non-Violent Offenses
The Republicans and four Democrats in the State Senate who opposed lifting the felon jury service ban made disingenuous arguments about criminal justice and said nothing about jury trials. They feigned concern that murderers and terrorists could end up on juries, yet conveniently forgot that the vast majority of felony convictions are for non-violent offenses, usually drug related. And in states that have allowed felons to serve on juries, felons are not found to be biased towards criminal defendants.
Are these Senators willing to testify under oath that they never possessed any drugs in their youth? If they’d been caught and convicted, would they not want the same rights as anyone else once they’d paid their debt to society? Senators, let he (or she) who has not sinned cast the first stone. Speaking of Trump’s favorite book, evangelical Republican luminary Tony Perkins famously declared that Trump should get a mulligan for everything he’s done in his entire life. How about everyone else?
It’s time for New York to right this wrong and make a simple fix that will cost the state nothing. The Democrats have the votes in the Senate and the Assembly. It is simply up to the leadership of both houses to follow Senator Benjamin’s lead in the fight for justice.
Allowing those with felony convictions to serve on criminal and civil trials is one of the most fundamental ways of dismantling the systemic racism that continues to plague us.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Matthew Haicken is a personal injury trial lawyer in Manhattan.