Twenty Million Angry Men: The Case for Including Convicted Felons in Our Jury System

Author: James M. Binnall
Publisher: University of California Press, 2021. 288 pages
Reviewer: Anna Roberts ǀ November 2021

“Twenty Million Angry Men: The Case for Including Convicted Felons in Our Jury System” is a powerful title, and gives a useful preview of some of the emphases of this important book. James Binnall demonstrates the broad scope of this form of jury exclusion, unearths fascinating new material about the emotions of those involved, presents a multi-tiered argument for change, and shows, through his upfront ownership of the word “felon,” that he is not going to shy away from exposing and tackling stigmatizing labels in this area of the law.

First, the scope. Binnall effectively demonstrates that excluding those convicted of crimes from juries is a bigger problem than the relative lack of public and scholarly attention devoted to it might suggest. He points out that in many states jury exclusion on the basis of felony convictions is life-long. He provides an appendix of state provisions that neatly encapsulates the abundant state variation and provides useful contrasts with his other two appendices, one of which compares state jury disqualifications with state disqualifications from bar membership, while the other compares jury disqualification of those with felony convictions with jury disqualification of law enforcement personnel. Binnall highlights Maine as the sole state with no statutory exclusion of those with convictions from either grand or petit jury service. While Binnall’s focus is on the statutory exclusions of those with felony convictions, his book hints at the fact that this is just part of a web of phenomena preventing jury service by people with convictions—and indeed sometimes with criminal records short of convictions—and that in some states the statutory bar includes misdemeanor convictions (Johnson, 2016). Here and there, we see hints at the fact that even without statutory bars to jury service a judge might still find jurors with criminal convictions unable to be fair, or might send them home on the basis that serving would be a hardship.

Second, as in the movie whose title Binnall quotes, human emotion plays an important part in the book. He wants us to hear how it feels to be banned from participation, and to be included, and he has created studies that allow us to learn from these important viewpoints. Some of the most powerful parts of the book are the individual accounts of people reflecting on the possibility of jury service as an exception to forms of exclusion experienced in other facets of their lives. Binnall is also interested in the emotive pleas made by those who support these exclusions. He does not shy away from their rhetoric, but carefully unpacks it and shows it to be empty. Binnall tells us that he himself is a “convicted felon,” and shares his own distress at the stereotypes trotted out in debates on Californian reform (p. 1). He has done an important thing in terms of tackling the othering that is so common in this area of the law: he has shown us individual, relatable human emotion.

Binnall also keeps his title’s promise of making a powerful case for inclusion. In doing so, he demonstrates boldness, patience, creativity, and persistence, attacking the issue from multiple angles. In addition to discussing his own status as a member of this stigmatized group, he enriches his work by sharing with us a variety of viewpoints, many of a type that it is rare to read about. He conducts innovative polling of the public to see what they think about this form of jury exclusion; he quotes judges discussing how they think about whether to remove a potential juror; and he includes a variety of other well-selected quotes from judges, prosecutors, defense attorneys, and jurors, actual and potential. His quotes from jurors discussing the experience of serving on a jury after having been criminalized by the system, and discussing how their experience within the criminal system might influence their work as jurors, are not just fascinating but also valuable counters to the otherizing rhetoric so frequently used to justify these exclusions. Binnall patiently lays out all the primary rationales proffered for this form of exclusion and unravels them, not just by attacking the reasoning and its lack of support, but by holding the claims up against the data, much of which he derived through new studies. Earlier scholarship, including my own, raised the question of how Maine’s jury system functions without this form of exclusion, and whether it really is the case that those with felony convictions harbor a pro-defense bias that justifies their disqualification (Roberts, 2013). Binnall goes further and crafts studies, including a four-year field study in Maine, to find out. He cracks open the deliberations of a mock jury that included those with felony convictions, for example, allowing us to read precisely what was said. He also analyzes exclusionary practices through a comparative lens, contrasting levels of bias among people with felony convictions with levels of bias among law enforcement personnel and law students. Binnall is also careful to ensure that his multi-dimensional approach is accessible and easy to follow. His writing is clear and compelling, his choices about level of detail well made, and his project cohesive, with particularly effective use of signposting to lead the reader from one chapter to another.

And then there’s the phrase “convicted felons,” used in the title and in the book that follows. “Felon” is, of course, is a powerful term, and perhaps a striking one with which to headline a reform-minded book. (The same choice was made by Brian Kalt (2003), whose article, “The Exclusion of Felons from Jury Service,” provided the first comprehensive analysis of this set of statutes.) Binnall includes an explanation of his choice, noting that he is using the term “as a descriptor of an accurate legal status” (p. 12). I approach the topic with humility because Professor Binnall lives with this label and lives as “a member of a class that routinely suffers discrimination” (p. 12). But, as he anticipated might be the case for some, the term left me with questions. I wondered about the use of a term that is so often used not just to stigmatize but to suggest a shared identity beyond the legal label. I wondered about possible tensions between the repetition of this term and the sort of de-labeling work for which Binnall pushes so devotedly. Binnall’s paragraph on this kind of debate left me eager to hear more of his thoughts on this.

I had other questions about the word “felon” that embraced additional words that Binnall uses—“offender” and “misdemeanant”—since these terms contain an interesting ambiguity about whether they are referring to crime conviction or crime commission. I wondered if there was more room for unsettling that kind of merger of criminal conviction and criminal act, particularly given the book’s interest in ways in which the state skews jury composition. I had these questions also about Binnall’s invocation of the concepts of desistance, rehabilitation, reformation, and redemption, in service of arguments for an inclusive approach to jury service. I understand that these terms offer powerful advocacy potential, and that asking questions about the system’s reliability (beyond jury exclusions), and thus about the applicability of these terms, may undermine that potential. But I would have loved to hear Binnall’s thoughts on these kinds of choices (admittedly because this is a scholarly preoccupation of mine) (Roberts, 2020).

Binnall delivers what he promises, and does so in particularly timely fashion. Phenomena previously taken for granted in the criminal legal sphere are now up for reexamination, and while Binnall points out that interest in this topic has lagged behind that devoted to other forms of jury exclusion, things are changing. The last few years have brought exciting new consideration of this topic, from scholars such as Frampton (2020), Hoag (2020), McConkie (2020), Simonson (2021), and Wheelock (2011). On the policy and advocacy front, there are also encouraging developments, suggesting that this topic might start to gain some of the momentum surrounding other consequences of conviction. The United States Commission on Civil Rights (2019) included jury exclusion (and Binnall’s research) in a recent report on consequences of conviction. The Prison Policy Initiative published a study on this issue earlier this year, building on Binnall’s work (Jackson-Gleich, 2021). And Binnall includes a useful description of the recent California reform in which he played a significant part. He takes care to point out that even this success was complicated: the associated debates stirred up disquieting testimony indicating that many of the bedrock stereotypes remain, and the reform was a watered-down version of what he had hoped for. Binnall also investigates the implementation of this reform, revealing that the information that county websites are disseminating about it to the public is frequently misleading, sometimes requiring documentation that the legislation itself does not. This is an important part of his work, and paralleled by other research that indicates some of the many hurdles to getting the restoration of rights on which the possibility of post-conviction jury service often hinges (Restoration of Rights Project, n.d.).

Thus, work on this front remains unfinished, but this book deftly shows why it matters, that change is possible, and that Binnall has played an important role in making it so.

References:

Frampton, T. W. 2020. “For Cause: Rethinking Racial Exclusion and the American Jury.” Michigan Law Review. 118: 785–840.

Hoag, A. 2020. “An Unbroken Thread: African American Exclusion from Jury Service, Past and Present.” Louisiana Law Review. 81: 55–79.

Jackson-Gleich, G. 2021, Feb. 18. Rigging the Jury: How Each State Reduces Jury Diversity by Excluding People with Criminal Records. Prison Policy Initiative. https://www.prisonpolicy.org/reports/juryexclusion.html.

Johnson, V. B. 2016. “Arresting Batson: How Striking Jurors Based on Arrest Records Violates Batson.” Yale Law & Policy Review. 24: 387–424.

Kalt, B. C. 2003. “The Exclusion of Felons from Jury Service.” American University Law Review. 53: 65–189.

McConkie Jr., D. S. 2020. “Criminal Justice Citizenship.” Florida Law Review. 72: 1023–81.

Restoration of Rights Project. (n.d.). Restoration of Rights Project. https://ccresourcecenter.org/restoration-2/.

Roberts, A. 2020. “Convictions as Guilt.” Fordham Law Review. 88: 2501–50.

Roberts, A. 2013. “Casual Ostracism: Jury Exclusion on the Basis of Criminal Convictions.” Minnesota Law Review. 98: 592–647.

Simonson, J. 2021. “Police Reform Through a Power Lens.” Yale Law Journal. 130: 778–860.

U.S. Sentencing Commission on Civil Rights. 2019. Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities. Retrieved from https://www.usccr.gov/files/pubs/2019/06-13-Collateral-Consequences.pdf.

Wheelock, D. 2011. “A Jury of One’s ‘Peers’: The Racial Impact of Felon Jury Exclusion in Georgia.” The Justice System Journal. 32(3): 335–59.

Anna Roberts, is a Professor of Law at St. John’s University School of Law