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How the System Rigs the Jury Pool

by DAVE LINDORFF

I planned to go to jury duty on Friday, but they told me not to bother.

It turns out that in Montgomery County, PA, as in many jurisdictions across the state and country, if you’re honest and answer, on your jury summons questionnaire, that you have been convicted of a crime–any crime, however long in the past–the computer blackballs you.

Now my particular crime was no big deal–arrested during the Mobilization Against the War march and sit-down demonstration on the mall of the Pentagon back in 1967 at the tender age of 18, I was charged with, and pleaded “no contest” to trespassing and resisting arrest, was fined $25, and handed a suspended sentence of five days in federal prison.

I suppose a lot of people would say being able to avoid jury duty by reporting on some minor 36-year-old conviction is a pretty good deal. But think about the implications.

There are an awful lot of people in Montgomery County–and in other counties with similar practices–who are being barred from juries because they are honestly reporting minor convictions. DUI is a crime. So is shoplifting. So is creating a nuisance or disturbing the peace. And remember, there is no time limit. I did a random check of counties in a number of states; three quarters of those I called are barring from jury duty people who have ever been convicted of a crime, any crime. Sometimes, they’re even more explicit: in Nebraska’s Jefferson County, for example, prospective imprisonment, if they’ve ever been convicted of a charge “involving a motor vehicle othr than speeding tickets,” and if they’ve ever been convicted of a crime “other than traffic.” In Mississippi, they state bars from jury duty not just felons, but “bootleggers, habitual drunkards and common gamblers” (it must be hard to gather a jury there, if people are honest).

In Philadelphia, the rules are a little looser. You don’t get bumped out of the jury pool for a minor crime, but you still get bumped automatically if you have “ever been convicted of a crime punishable by imprisonment of more than one year.” Again, there is no time limit, and even if you got off with a fine and no prison time for your special crime, or say you got probation–the fact that the crime itself was “punishable” by a sentence of a year makes you ineligible to serve.

The federal courts are a little less strict. They reject as jurors anyone who has been sentenced to prison for a year or more, but are willing to waive this rejection if the potential juror has had her or his civil rights restored after serving that time (there’s a box to check if this is the case).

What do these restrictions–especially ones like Montgomery County’s–do to jury pools?

Well, given that 22 percent of black males under 35 have been in prison, it reduces young African American males’ potential involvement in juries by that amount right off the top. Given that poor people who get arrested are much likelier to get convicted of serious crimes because they can’t afford a lawyer who can get the charges reduced, or even beat the rap, it means that poor people are disproportionately going to be bounced. And because our nation’s courts have for the most part been computerized, these determinations, which might once have been made by some court clerk (who could at least consider at the reasons for a conviction, the punishment, and the date of the offense), are now being made automatically by some computer program. (In my own case, when I complained about being bumped, I was told by an official in the county court’s jury selection office that given the minor nature of my particular offense, and its antiquity, I could “probably” serve, but that in order to do so, I should “lie” and check “no” in response to the question about prior convictions the next time I got a jury summons.)

It’s a fundamental premise of our legal system that a defendant has the right to be tried by a jury of her or his peers. But in our lock-’em-up-and-throw-away-the-key society, an awful lot of those peers are people who have had some minor experience with the law like mine.

How can we say someone is getting a fair trial if those people like me, who have had a glimpse of how the system operates, are barred from serving at trials? Who ends up judging defendants instead? People who have never faced a judge, never looked at the world through bars, never had their fingers inked and rolled–and people who have used their money, connections or social standing to beat the system.

Now there may be reasons why a particular person shouldn’t serve on a jury, but we have a system for dealing with that–the voir dire, where two competing attorneys question jurors and try to convince a judge as to whether a jury candidate is fit to serve or should be excused. Attorneys even have the right to bar a few jurors for no reason, through what are called peremptory challenges.

What should clearly not be happening is having a computer arbitrarily knock off a whole class of responsible citizens before they even get to the voir dire.

It is truly ironic that while people can be defense attorneys and prosecutors, and even judges, even if they have a minor criminal conviction on their record, average folks like me, with the same kind of record, are barred from that one important office which we all are expected as citizens to share in filling–juror.

Hey, I want to serve as a juror. The crime is, they won’t let me.

 

 

Dave Lindorff is a founding member of ThisCantBeHappening!, an online newspaper collective, and is a contributor to Hopeless: Barack Obama and the Politics of Illusion (AK Press).

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