James Binnall

On Jan. 10, then-President-elect Donald Trump was sentenced in the New York County Supreme Court after being found guilty of 34 criminal counts by a jury of his peers.[1]

At that time, the president-elect was branded a "felon." And on Jan. 20, he became the first person with a felony conviction to assume the office of the presidency.

Prior to sentencing, Trump sought to overturn the jury's verdict.[2] Justice Juan M. Merchan, the trial judge in New York v. Trump, noted that "the sanctity of a jury verdict and the deference that must be accorded to it, is a bedrock principle in our Nation's jurisprudence." And, he said, "[t]he significance of the fact that the verdict was handed down by a unanimous jury of 12 of Defendant's peers, after trial, cannot possibly be overstated."[3]

Justice Merchan ultimately held that the verdict would stand, suggesting that to discard the jury's efforts would undermine one of the fundamental principles of our criminal legal system — that we trust jurors to call on their "'collective intelligence and experience' reviewing and analyzing evidence."[4]

This is true, in general — unless of course, they have been convicted of a felony. In a twist of irony, the respect Justice Merchan paid to the jury's verdict is, in part, why it was upheld, and why Trump will never again be able to serve as a juror in our federal criminal legal system.

Indeed, the opportunity to serve on a jury is sacrosanct to our democratic system of governance. The practice of excluding individuals with felony convictions from serving on juries effectively creates a class of citizens who are subject to the law but cannot participate in it. And, in the case of lifetime exclusions, which our federal system imposes, they permanently extend the collateral consequences of a conviction for those who have already served the entirety of their sentence.

What's more: The common justifications for excluding those with convictions from juries, based on the alleged threat such jurors pose to the jury process, are not supported by the research. Instead, the practice of excluding those with a felony conviction from jury service seems to be a solution in search of a problem.

Let's step back for a moment and survey the landscape. Forty-nine states; the federal system; and Washington, D.C., statutorily limit the juror eligibility of citizens with a prior felony conviction.[5]

Twenty-six jurisdictions make prospective jurors with a felony conviction ineligible to serve on a jury for life;[6] 13 exclude prospective jurors until the completion of a criminal sentence; nine impose hybrid restrictions that may be based on the type of proceeding at bar, charge category of the commitment offense, or penal status;[7] and two states allow for lifetime challenges for cause based solely on a felony criminal conviction.[8]

Maine is the only jurisdiction that does not restrict juror eligibility for those with a prior felony conviction in any way.[9] Record-based juror exclusion is thus the most pervasive and severe form of civic marginalization in the U.S.[10]

The application of juror exclusion statutes is remarkably consistent across jurisdictions, applying to all prospective jurors with a prior felony conviction in all types of proceedings, i.e., both criminal and civil.[11]

Only four jurisdictions tailor exclusion statutes, distinguishing those convicted of a first offense from those convicted of a repeat offense,[12] those convicted of a violent offense from those convicted of a nonviolent offense,[13] grand juries from petit juries,[14] and civil cases from criminal cases.[15]

In excluding those with a felony conviction from jury service, courts and lawmakers cite two justifications: the probity, or character, rationale; and the inherent bias rationale.[16]

The probity rationale suggests that by committing a criminal offense — or even being charged with a criminal offense — a prospective juror has revealed a significant flaw of character that makes them categorically unfit for jury service.[17]

Still, courts and lawmakers have been unclear about how a lack of character makes one unfit for service.[18]

Some ostensibly suggest that a lack of character affects the functionality of the jury.[19] As the U.S. Court of Appeals for the Seventh Circuit explained in its 1995 decision in U.S. v. Barry,


An alternative interpretation of the probity rationale seems to hold that a lack of character would compromise the appearance of the jury.[21]

As the Court of Criminal Appeals of Texas noted over a century ago in its 1920 Amaya v. State decision, "the object of the Legislature appears to be not the punishment of the convicted juror, but the protection of society against the pollution of the jury system by committing its execution to persons whose moral status has been judicially established as criminal."[22]

More contemporary opinions also subscribe to this view. Texas' Second Court of Appeals held in its 1994 R.R.E. v. Glenn decision, "It cannot be said that ... purity … is maintained by permitting juries to be composed of thieves, robbers, murderers, kidnappers, perjurers, rapists, drug dealers and others convicted of felonies."[23]

Courts' application of the probity rationale is imprecise, at best. At its core, this juror-exclusion justification suggests that character is fixed and irredeemable, contradicting a wealth of research revealing that character is generally malleable and largely context-specific.[24]

The second justification for felon-juror exclusion suggests that those with a prior felony conviction harbor preconceived attitudes that make them sympathetic to criminal defendants and adversarial toward the state.[25]

Courts have opined that a person's "former conviction and imprisonment would ordinarily incline him to compassion for others accused of crime,"[26] as articulated by the Louisiana Supreme Court in its 1978 State v. Baxter decision.

And courts have suggested that those with a felony conviction hold biases against the government.[27] Similarly, as the Supreme Court of California stated in its 1979 decision in Rubio v. Superior Court of San Joaquin County:


Still, despite the precision with which courts and lawmakers conceive of the inherent bias rationale, no research supports the justification or the blanket presumptions it makes about those with a felony conviction.[29] Instead, studies suggest that those with a felony conviction do not hold pretrial biases, and that many will convict when the facts of a particular case support the charges alleged.[30]

Legal challenges to statutes that exclude those with a felony conviction from the jury pool generally take two forms: (1) fair cross-section claims, which allege that the jury pool is unrepresentative of the community from which it is drawn; and (2) equal protection claims, which argue that, in this context, the law impermissibly treats those with felony convictions differently.[31]

Neither type of challenge has succeeded. Fair cross-section claims fail uniformly because courts have held that individuals with felony convictions do not constitute a distinctive group[32] — one of the prima facie requirements of such a claim.[33]

Similarly, equal protection claims have failed because courts do not recognize jury service as a fundamental or important right,[34] and have never held that individuals with a felony conviction deserve heightened constitutional scrutiny as a protected class.[35]

While legal challenges to the exclusion of individuals with a felony conviction from jury service have uniformly failed, the empirical case against the practice is strong.[36] Over the past decade, research has undercut the justifications for exclusion,[37] and it has highlighted the potential negative impacts of exclusion on the composition of juries,[38] the deliberation process[39] and the communities that exclude.[40]

Studies have also demonstrated that the public is open to allowing those with a felony conviction to serve,[41] and that juries are viewed as fairer and more legitimate when they include all potential members of a community — including those with prior felony convictions.[42]

Contrary to the proffered justifications for exclusion, studies demonstrate that jurors with a prior felony conviction bring unique qualities and skills to the deliberation room. In the only mock jury experiment to include individuals with a felony criminal conviction, which I conducted, results revealed that jurors with a felony conviction identified more novel case facts and participated for a greater proportion of their jury's deliberation time than did their counterparts who did not have felony convictions. These are both approximate indicators of deliberation quality.[43]

Research also indicates that prospective jurors with a felony conviction approach jury service thoughtfully and conscientiously, demonstrating probity and a willingness to convict when evidence supports that disposition.[44] These findings, taken together, suggest strongly that exclusion likely harms jury deliberations, rather than protecting them.

In recent years, the strong policy case against exclusion has led several jurisdictions to rethink the juror eligibility of those with a felony criminal history.

In 2019, California — previously a permanent-exclusion jurisdiction — passed S.B. 310, which restored juror eligibility to most Californians with a prior felony conviction.[45]

Approximately six months later, Washington, D.C. — a hybrid jurisdiction — reduced its eligibility waiting period from 10 years to one year.[46]

In 2021, Louisiana — another permanent-exclusion jurisdiction — passed H.B. 84, making Louisianans with a felony conviction eligible for jury service five years after the completion of their sentence.[47]

Similarly, in 2021, Connecticut reduced the required waiting period for juror eligibility for those with felony convictions from seven years to three years.[48]

While these legislative reforms were welcome news for advocates of more inclusive juror participation, implementation has been rocky.

In California, a search of county websites[49] eight months after implementation in August 2020 revealed a hodgepodge of notification approaches taken by county courts, roughly two-thirds of which (36 of 58) were either silent as to the changes prompted by S.B. 310, or provided misleading or conflicting information as to the measure's effect.[50]

In 2023, three years after implementation, only nine of those 36 counties had accurately updated their notifications, while two counties had altered their accurate notifications in ways that now make them misleading or conflicting.

Thus, half of all California counties — 29 of 58 — remain silent as to the legislative change, or continue to publicize misleading or conflicting information about S.B. 310.[51]

And California is not alone. In 2023, roughly 17 months after the implementation of H.B. 84, a survey revealed that 86% of Louisiana's parishes and 79% of its judicial district courts had failed to update their public-facing websites to accurately detail the changes made by the law.[52]

These findings suggest that, while legislative reform is warranted and needed, implementation must also be a priority for those who seek to expand, rather than contract, juror participation.

Legislation restoring juror eligibility to those with a felony conviction must include mandatory notification provisions. And jurisdictions that alter their eligibility to permit those with felony convictions to serve must also consider additional measures, as California has, to protect those with convictions in the jury selection process, forbidding dismissal based solely on the presence of a felony criminal conviction.[53]

In the end, making Americans with a felony conviction ineligible for jury service is bad policy, as it has the potential to damage juries, undermine faith in our criminal legal system, and create a class of citizens that are subject to the criminal law but are themselves not trusted to take part in a fundamental aspect of our legal system.

Trump is now one of those folks. He is one of the over 20 million Americans who are banished from the deliberation rooms of our federal jury system. No longer will the president be permitted to partake in a crucial form of civic participation.

Instead, he has been branded a "felon," in part because Justice Merchan held the jury's verdict in the highest regard, sentencing Trump in order to honor the efforts of the 12 citizens who worked to find the truth in the case.

The irony is that, in the absence of meaningful legislative reforms restoring his eligibility for jury service, Trump will never garner that same respect as a juror. And while many will agree with this outcome, the exclusion of those with a felony conviction from the jury process is a policy that we ought to jettison nationally if we truly seek broad juror participation and a legitimate criminal legal system.

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James M. Binnall is a professor of law, criminology and criminal justice, and the executive director of Project Rebound, at California State University, Long Beach. He is also the co-founder of the California System-Involved Bar Association, and the author of "Twenty Million Angry Men: The Case for Including Convicted Felons in Our Jury Process" (University of California Press, 2021).

Disclosure: Binnall was sole author or a co-author on several of the studies on the exclusion of citizens with a felony conviction from jury service mentioned in this article, and has testified in favor of S.B. 310 in California.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Adam Reiss, Gary Grumbach, Fallon Gallagher, &Dareh Gregorian, "Trump Sentenced to Penalty Free 'Unconditional Discharge' in Hush Money Case (NBC News), available at: https://www.nbcnews.com/politics/donald-trump/trump-sentencing-judge-merchan-hush-money-what-expect-rcna186202.

[2] The People of the State of New York v. Donald J. Trump , Defendant's Motion to Dismiss the Indictment and Vacate the Jury's Verdict Pursuant to CPL §§ 210.20(1)(h) and 210.40 (1), Decision and Order, at 3 (2025) available at: https://www.nycourts.gov/LegacyPDFs/press/PDFs/People%20v.%20DJT%20Clayton%20Decision.pdf; see also at 4 ("The right to have a jury make the ultimate determination of guilty has an impressive pedigree.  Blackstone described 'trial by jury' as requiring that 'the truth of every accusation,' whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant's] equals and neighbors.") citing United States v. Gaudin , 515 U.S. 506 (1995), citing to 4 W. Blackstone, Commentary on the Laws of England 343 (1769). 

[3] Id.

[4] Id. at 4.

[5] James M. Binnall, "Twenty Million Angry Men: The Case for Including Convicted Felons in Our Jury System" (UC Press, 2021); see also Brian C. Kalt, "The Exclusion of Felons from Jury Service," 53 Am. U. L. Rev. 65 (2003).  

[6] Id. (Permanent exclusion jurisdictions: Federal, Alabama, Arkansas, Delaware, Florida, Georgia, Hawaii, Kentucky, Maryland, Michigan, Mississippi, Missouria, Nebraska, New Hampshire, New Jersey, New York, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia and Wyoming).

[7] Id. (During sentence jurisdictions: Alaska, Idaho, Indiana, Minnesota, Montana, New Mexico, North Carolina, North Dakota, Ohio, Rhode Island, South Dakota, Wisconsin and Washington).

[8] Id. (Hybrid jurisdictions: Arizona, California, Colorado, Connecticut, District of Columbia, Kansas, Massachusetts, Nevada and Oregon).

[9] 14 M.R.S.A. § 1211 (2017) ("A prospective juror is disqualified to serve on a jury if that prospective juror is not a citizen of the United States, 18 years of age and a resident of the county, or is unable to read, speak and understand the English language.").

[10] See Binnall, J. and Petersen, N. (2021). "Public Perceptions of Felon-Juror Exclusion: An Exploratory Study," 21(5) J. of Criminology & Criminal Justice 593 (2021) (comparing exclusionary statutes impacting voting and jury service).

[11] See Binnall, supra note 5.

[12] See Arizona Revised Statue § 13-912(A) (2018).

[13] See Nevada Revised Statue § 213.157(2)(a)-(e) (2018).

[14] See Colorado Revised Statue § 13-71-105(3) (2018).

[15] See Oregon Revised Statue § 10.030(3)(a)(E)-(F) (2017).

[16] See Binnall, supra note 3; see also Kalt, supra note 3 (each collecting and presenting cases on each justification).

[17] Id.

[18] See Kalt, supra note 5, at 74 ("("Courts have been less clear as to whether the threat that felons pose to jury probity stems from their degraded status or from their actual characteristics").

[19] Referred to as the instrumental perspective. See Binnall, supra note 5; see also James M. Binnall, Olivia K.H. Smith, & Cassandra Flick, "Is the Taint Argument Real? Public Perceptions of Juries that Include Felon-Jurors."30(9) Psychology, Crime & Law1123 (2022).

[20] United States v. Barry , 71 F.3d 1269, 1273 (7th Cir.1995); see also United States v. Boney , 977 F.2d 624 (D.C. Cir. 1992).

[21] Also referred to as the taint perspective. Kalt, supra note 5, at 104; see also Binnall, supra note 5; Binnall, Smith, & Flick, supra note 19.

[22] Amaya v. State , 220 S.W. 98, 99 (1920).

[23] R.R.E. v. Glenn , 884 S.W. 2d 189, 193 (1994).

[24] See John R. Doris, Lack of Character: Personality and Moral Behavior (2002); Gilbert Harman, "Moral Philosophy Meets Social Psychology: Virtue Ethics and the Fundamental Attribution Error," 99 Proceeds of the Aristotelian Society 315 (2000).

[25] See James M. Binnall, "A Field Study of the Presumptively Biased: Is There Empirical Support for Excluding Convicted Felons from Jury Service," 36(1) Law & Policy 1 (2014); see also James M. Binnall, "Cops and Convicts: An Exploratory Field Study of Jurymandering," 16(1) Ohio State Journal of Criminal Law 221 (2018); James M. Binnall & Nick Petersen, "Building Biased Jurors: Exposing the Circularity of the Inherent Bias Rationale for Felon-Juror Exclusion," 27(1) Psychiatry, Psychology & Law 110 (2020).

[26] State v. Baxter , 357 So. 2d. 271, 275 (1978).

[27] United States v. Greene , 995 F.2d 793, 796 (1993).

[28] 24 Cal.3d 93, 101 (1979).

[29] See supra note 25.

[30] Id.

[31] See Kalt, supra note 5; see also Binnall, supra note 5.

[32] See United States v. Greene, supra note 27 (finding that those convicted of a felony do not constitute a "distinctive group.").

[33] See Lockhart v. McCree , 476 U.S. 162 (1986); Taylor v. Louisiana , 419 U.S. 522 (1975); Duren v. Missouri , 439 U.S. 357 (1979).

[34] See United States v. Conant , 116 F. Supp. 2d 1015 (2000).

[35] See Hilliard v. Ferguson , 30 F.3d 649 (1994).

[36] See Binnall, supra note 5; see also Darren Wheelock, "A Jury of One's "Peers": The Racial Impact of Felon Jury Exclusion in Georgia," 32(3) Justice System Journal335 (2011).

[37] See supra note 25; see also James M. Binnall, "Summonsing Criminal Desistance: Convicted Felons' Perspectives on Jury Service," 43(1) Law & Social Inquiry 4 (2018); James M. Binnall, "Jury Diversity in the Age of Mass Incarceration: An Exploratory Mock Jury Experiment Examining Felon-Jurors' Potential Impacts on Deliberations," 25(4) Psychology, Crime & Law 345 (2019).

[38] See Wheelock, supra note 36; see also infra note 42.

[39] See Binnall, "Jury Diversity in the Age of Mass Incarceration," supra note 37; see also Binnall, supra note 5 (for a qualitative analysis of deliberation transcripts from the first mock jury experiment to include jurors with a prior felony conviction).

[40] See James M. Binnall, "Felon-Jurors in Vacationland: A Field Study of Transformative Civic Engagement in Maine," 71(1) Maine Law Review 71 (2018); James M. Binnall, "Exorcising Presumptions: Judges and Attorneys Contemplate 'Felon-Juror Inclusion' in Maine," 39(4) Justice System Journal 378 (2018); see also Binnall, "Summonsing Criminal Desistance," supra note 37.

[41] See Binnall & Petersen, supra note 10; see also James M. Binnall & Nick Petersen, "No Fear Here: How the Public Views Anticipated Interactions with Jurors Convicted of a Felony," 25(2) Berkeley Journal of Criminal Law 61 (2020); James M. Binnall & Nick Petersen, "They're Just Different: The Bifurcation of Public Attitudes Toward Felon-Jurors Convicted of Violent Offenses," 75 Crime, Law & Social Change 3 (2021).

[42] See James M. Binnall & Nick Petersen, "Felon-Jurors' Impact on Deliberation Satisfaction: Do They Really 'Infect' the Process?" 43(2) Justice System Journal, 218 (2022); see also Binnall, Smith, & Flick, supra note 19.

[43] See supra note 39.

[44] See id; see also Binnall, "Summonsing Criminal Desistance," supra note 37.

[45] See Cal. Civ. Proc. Code § 203 (2020) (enacted in 2020, Senate Bill 310 restored juror eligibility to all Californians with a felony criminal conviction unless 1) they are on active state or federal supervision (must wait until supervision ends to be eligible) or 2) have committed a crime that requires sexual offender registration (still a permanent exclusion from jury service)).

[46] See Andrew Giambrone, DC Residents with Felony Convictions Can Now Serve on Some Juries a Year After Release," DCist.com (2020) available at: https://dcist.com/story/20/06/16/dc-superior-court-felony-trial-jury-duty-release-update/.

[47] See Louisiana State Legislature, Regular Session 2021 (2021) https://legis.la.gov/legis/BillInfo.aspx?i=239879; see also Julie O'Donoghue, Louisiana Lawmakers Vote to Allow People Convicted of Felonies on Juries Louisiana Illuminator (2021), https://lailluminator.com/briefs/louisiana-lawmakers-vote-to-allow-people-convicted-of-felonies-on-juries/.

[48] Andrew Brown, Jenna Carlesso, Renata Daou, "CT Overhauled its Jury Selection System But Racial Disparities Remain," CTMirror (2024) available at: https://ctmirror.org/2024/12/15/ct-jury-selection-system-racial-disparities/#:~:text=At%20the%20recommendation%20of%20the,be%20considered%20for%20jury%.

[49] This is the most accessible and likely source of information for prospective jurors.

[50] James M. Binnall and Lauren Davis, Californians with a Felony Conviction are Now Eligible for Jury Service: How Would They Know? 32(1) STANFORD LAW AND POLICY REVIEW ONLINE 1 (2020).

[51] See James M. Binnall & Blake Krawl, "Confusion in the Golden State: Jurors with a Felony Conviction History Make the Case for Improved Notification Procedures," (2025) (forthcoming).

[52] See James M. Binnall & Blake Krawl, "What We've Got Here is Failure to Notify: How Louisiana Has Ignored Jurors with a Felony Conviction Since the Implementation of H.B. 84," The Juror Project, available at: https://static1.squarespace.com/static/575a1290c6fc08644b94f918/t/63d1ef1718562e05bb29679b/1674702618207/
What+We+Have+Here+is+Failure+to+Notify+-+Final+-+For+Will+Review.pdf.

[53] See (Cal. Civ. Proc. Code § 231.7 (e)(1-3) (2021) (California has passed restrictions on the use of peremptory challenges.  The legislation reads: "(e)A peremptory challenge for any of the following reasons is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror's race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror's ability to be fair and impartial in the case: (1) Expressing a distrust of or having a negative experience with law enforcement or the criminal legal system. (2) Expressing a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner. (3) Having a close relationship with people who have been stopped, arrested, or convicted of a crime.").