2023-2024 Legislative Memorandum

Subject: Jury of Our Peers Act – A.1432-A (Aubry) / S.206-A (Cleare)

Position: SUPPORT

The New York County Lawyers Association Voting Rights Task Force and the Criminal Justice Committee (collectively, the “Committees”) urge the legislature to pass, and the governor to sign, the Jury of Our Peers Act, A.1432-A (Aubry)/S.206-A (Cleare), and end New York’s permanent bar on jury service for people with a past felony conviction.

Together with voting, jury service represents Americans’ “most significant opportunity to participate in the democratic process.”1 It is a core right of citizenship and of civic participation, the deprivation of which impacts a person’s ability to engage with their community and have a voice in government decisions.

As far back as 1787, the Federal Farmer—one of the antifederalists whose advocacy in support of juries led to the adoption of the Fifth, Sixth, and Seventh Amendments— equated the role of jurors to the role of voters: “It is essential in every free country, that common people should have a part and share of influence, in the judicial as well as in the legislative department.”2 This principle was reiterated by the U.S. Supreme Court, which recognized: “Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.”3

The majority of U.S. states permanently strip people of both their right to serve on a jury and their right to vote upon conviction of a crime. However, more than twenty states automatically restore these rights upon release from incarceration or after certain conditions are met. New York’s permanent ban on jury service for people with a past felony conviction places it behind more than half of U.S. states—behind states like Florida, Louisiana, North Dakota, South Dakota, Indiana, Iowa, and Kansas.

I.           New Yorkers with Felonies Should Be Able to Participate in Jury Service Upon Release from Incarceration, The Same Point in Time When they Are Able to Vote.

In 2021, New York passed legislation to restore the right to vote to people with felony convictions automatically upon release from prison. However, despite the right to vote being restored upon release from incarceration, people with a felony conviction are forever barred from jury service. States like Florida moved to end lifetime jury disenfranchisement after the state passed Amendment 4 and ended the permanent bar on voting for people with past felony convictions.4 Florida changed the state’s clemency rules to align the time when jury service rights are restored with the time that voting rights are restored. The decision to align the restoration of the right to serve on a jury with the right to vote has also been taken in a number of other states.5

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1 Powers v. Ohio, 499 U.S. 400, 407 (1991).

2 Letters from the Federal Farmer (IV), reprinted in 2 The Complete Anti-Federalist 245 (Herbert Storing ed., 1981).

3 Blakely v. Washington, 542 U.S. 296, 306 (2004) (collecting founding era sources).

4 It is important to note that the Florida clemency process that restores voting rights requires a completion of all terms of the sentence, which includes completion of any outstanding legal financial obligations-fines, restitution, costs, and fees-ordered by the sentencing court. See Art. VI

• 4(a), Fla. Const. (2020).

5 See, e.g., James M. Binnall, Felon Jurors in Vacationland, 71 Me. L. Rev. 71, 81 (2019) (Maine’s juror ban “underwent its first substantive revision in 1971, when it tied a convicted felon’s right to sit on a jury to his right to vote. The provision read, ‘[a] prospective juror is disqualified to serve on a jury if he . . . has lost the right to vote.’”). Washington state links the restoration of voting rights to the right to serve on a jury. See RCW 2.36.070(5) and RCW 2.36.010(1); see also Snohomish County, Washington, FAQs: Can I serve on jury duty if I am a convicted felon?, https://snohomish countywa.gov/Faq.aspx?QID=101#:~:text=Can%20I%20serve%20on%20jury,of%20the%20department%20of%20corrections. Compare Ginger Jackson-Gleich, Rigging the jury: How each state reduces jury diversity by excluding people with criminal records, Prison Policy Initiative (Feb. 18, 2021), https://www.prisonpolicy.org/reports/jury exclusion.html, with Brennan Center for Justice, Can People Convicted of a Felony Vote? Felony Voting Laws by State, https://www.brennancenter.org/our-work/research-reports/can-people-convicted-felony-vote-felony- voting-laws-state (showing that a number of additional states, like Indiana, North Dakota, Colorado, Illinois, Alaska, Idaho, Minnesota, New Mexico, North Carolina, South Dakota, treat the restoration of voting and jury service rights similarly).

The New York County Lawyers Association was founded in 1908 as one of the first major bar associations in the country that admitted members without regard to race, ethnicity, religion or gender. Since its inception, it has pioneered some of the most far reaching and tangible reforms in American jurisprudence, including through the work of its many committees that provide in depth analysis and insight into legal practice areas. The views expressed are those of the NYCLA Voting Rights Task Force and the NYCLA Criminal Justice Committee and are approved for dissemination by the President; these views have not been approved by the New York County Lawyers Association Board of Directors and do not necessarily represent the views of the Board of Directors.

The New York County Lawyers Association Voting Rights Task Force and Criminal Justice Committee strongly support passage of S.206-A/A.1432-A and urges the legislature to pass the Jury of Our Peers Act immediately.