Akron Law Review
Volume 54
Issue 2 Criminal Justice Reform Issue

Article 2

2021

The Continuing and Unlawful Exclusion of Qualified Ex-Offenders
from Jury Service in Ohio
Jordan Berman

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Berman, Jordan (2021) "The Continuing and Unlawful Exclusion of Qualified Ex-Offenders from Jury
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Berman: Ex-Offenders and Jury Service

THE CONTINUING AND UNLAWFUL EXCLUSION OF
QUALIFIED EX-OFFENDERS FROM JURY SERVICE IN
OHIO
Jordan Berman*

I.
II.
III.

IV.

V.

VI.

Introduction ........................................................... 238
Current law in Ohio regarding juror eligibility. ........ 239
How Courts Are Implementing The Law. ................ 243
A. Cuyahoga County’s jury selection process. ....... 244
B. Hamilton County’s jury selection process. ........ 248
C. Franklin County’s jury selection process. .......... 250
Constitutional implications of the improper exclusion of
jury-eligible persons with a felony conviction ......... 251
A. Fair Cross Section under the Sixth and Fourteenth
Amendments.................................................... 252
1. People who have been convicted of felonies and
African-American men are distinct groups in the
community.................................................. 254
2. Whether the number of those with felony
convictions and African-American men on the
juries was fair and reasonable in relation to their
number in the community. ........................... 257
3. Whether the exclusion of those with felony
convictions and underrepresentation of AfricanAmerican men was systematic. .................... 259
B. Fourteenth Amendment Equal Protection. ......... 260
Strategies to improve juror underrepresentation. ...... 262
A. Courts and court officers. ................................. 262
B. Persons with felony convictions........................ 264
C. Attorney education on jury eligibility................ 265
Conclusion ............................................................. 266

* Assistant Federal Public Defender, Capital Habeas Unit, Federal Public Defender of the Southern
District of Ohio. Thank you to Lisa Lagos, Assistant Federal Public Defender, for her editorial
assistance and her work on this subject.

237

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I. INT RODUCT ION
Whether an Ohioan with a felony conviction can be considered for
jury service may well depend on where he or she lives in the state or the
judge presiding at trial, rather than the dictates of Ohio law. By statute,
Ohio permits those with felony convictions to serve on juries upon the
completion of any parole or community control sanctions that may have
been imposed. 1 This article is not concerned with this settled law but
rather the dramatic unevenness of its implementation, as Ohio courts of
common pleas, and even individual judges, vary widely in whether they
abide by or even recognize this statutory directive. For example, the
Cuyahoga County Court of Common Pleas systematically excluded any
individual with a felony conviction from jury service for over 20 years,
ending only in 2020. 2 The Hamilton County Court of Common Pleas
seems to accurately promote the state law in its Local Rules, but it is
unclear the extent to which individual judges or attorneys understand that
directive. 3 The Franklin County Court of Common Pleas, by contrast,
currently provides either vague or clear misstatements of the law in its
website and Local Rules. 4
Part II of this article clarifies the current state of the law in Ohio
regarding juror eligibility for those with felony convictions. Part III
examines juror selection in the courts of common pleas in Ohio’s three
largest counties, mentioned above—Cuyahoga (Cleveland), Hamilton
(Cincinnati), and Franklin (Columbus)—and their disparate approaches to
this issue. Part IV discusses the legal implications of excluding jurors with
felony convictions, not only as a violation of Ohio law, but also as a
violation of the Sixth Amendment right to a jury from a fair cross section
of the community and the Fourteenth Amendment rights to due process
and equal protection. Part V offers practical solutions that courts, the
Adult Parole Authority, and others can implement to address these
1. OHIO R EV. C ODE ANN. § 2967.16(C)(1) (West 2020) (“ Except as provided in division
(C)(2) of this section, the following prisoners or person shall be restored to the rights and privileges
forfeited by a conviction: (a) A prisoner who has served the entire prison term that comprises or is
part of the prisoner’s sentence and has not been placed under any post-release control sanctions; (b)
A prisoner who has been granted a final release or termination of post-release control by the adult
parole authority pursuant to division (A) or (B) of this section; (c) A person who has completed the
period of a community control sanction or combination of community control sanctions, as defined
in section 2929.01 of the Revised Code, that was imposed by the sentencing court.”).
2. See discussion infra Part III.A.
3. See discussion infra Part III.B.
4. See discussion infra Part III.C.

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concerns. These solutions would preserve the rights of eligible Ohioans
to serve on a jury along with defendants’ rights to be tried by a jury of
their peers.
II. CURRENT

LAW IN OHIO REGARDING JUROR ELIGIBILIT Y.

Article V, § 4 of the Ohio Constitution grants the Ohio General
Assembly the “power to exclude from the privilege of voting, or of being
eligible to office, any person convicted of a felony.” 5 Pursuant to this
authority, the General Assembly enacted Ohio Rev. Code § 2961.01,
which provides that a person convicted of a felony under the laws of Ohio
“is incompetent to be an elector or juror or to hold an office of honor,
trust, or profit” unless the person’s conviction is reversed or annulled, or
the person is granted a full pardon. 6
Ohio Rev. Code § 2967.16(C)(1) then restores civil rights—
including the right to serve on a jury—to those convicted of a felony once
the person has completed probation or community control sanctions that
may have been imposed. 7 Specifically, the law restores “the rights and
privileges forfeited by a conviction” to a prisoner who has completed his
or her prison term “and has not been placed under any post-release control
sanctions,” who “has been granted a final release or termination of postrelease control by the adult parole authority,” or “who has completed the
period of a community control sanction or combination of community
control sanctions . . . that was imposed by the sentencing court.” 8 The law
was first enacted in 1994, but at that time did not contain language

5. OHIO C ONST. art. V, § 4; see also OHIO C ONST. art. I, § 2 (“ no special privileges or
immunities shall ever be granted, that may not be altered, revoked, or repealed by the general
assembly”).
6. OHIO R EV. C ODE ANN. § 2961.01(A)(1) (West 2020); see also OHIO R EV. C ODE ANN.
§ 2313.17(B)(1) (West 2020) (a good cause to challenge a person called as a juror is that “ the person
has been convicted of a crime that by law renders the person disqualified to serve on a jury”);
§ 2945.25(I) (a juror in a criminal case may be challenged on the ground that “ he has been convicted
of a crime that by law disqualifies him from serving on a jury”); OHIO R. C RIM. P. 24(C)(1) (a juror
in a criminal case may be challenged on the ground that “ the juror has been convicted of a crime
which by law renders the juror disqualified to serve on a jury”).
7. See State v. Dawson, 2015-Ohio-488, ¶¶ 21–23 (Ohio Ct. App. 2015). A “ community
control sanction” is defined as “ a sanction that is not a prison term and that is described in
section 2929.15, 2929.16, 2929.17, or 2929.18 of the Revised Code or a sanction that is not a jail term
and that is described in section 2929.26, 2929.27, or 2929.28 of the Revised Code. ‘Community
control sanction’ includes probation if the sentence involved was imposed for a felony that was
committed prior to July 1, 1996, or if the sentence involved was imposed for a misdemeanor that was
committed prior to January 1, 2004”; OHIO R EV. C ODE ANN. § 2929.01(E) (West 2020); see also id.
§ 2961.01(C)(1); id. § 2967.01(P).
8. OHIO R EV. C ODE § 2967.16(C)(1) (West 2020).

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restoring juror eligibility to those with felony convictions. 9 In 1996, the
law was updated to reflect the restoration of benefits, including to those
who committed a felony prior to the 1996 amendment. 10
As described by an Ohio appellate court, §§ 2961.01 and 2967.16
should be read “together so as to give effect to both” as follows:
R.C. 2961.01, first enacted in 1953, provided one manner in which a
convicted felon may have the right to serve as a juror restored. That
manner was to obtain a pardon. The legislature later drafted
R.C. 2967.16, providing additional ways in which convicted felons may
have various rights and privileges restored, including the right to serve
as a juror. Read together, R. C. 2961.01 and 2967.16 provide that a
convicted felon may have the right to serve as a juror restored by
obtaining a pardon or by the terms outlined in R.C. 2967.16(C)(1). 11

Under § 2967.16(C)(1), a person who has been convicted of a felony is
eligible for jury service upon the completion of any parole or community
control sanctions that may have been imposed. 12 The General Assembly
also included language referring to the restoration of such rights and
privileges when one has satisfied those statutory conditions in Ohio Rev.
Code § 2953.33(A)—regarding a person who has had his or her record of
conviction sealed—and § 2967.17(B)—regarding termination of
jurisdiction over a particular sentence or prison term by the Adult Parole
Authority for administrative reasons. 13 The Ohio Attorney General has
noted that “[t]he use of such language in these statutes demonstrates that

9. Ohio Att’y Gen., Op. No. 2006-031, at 2-295 n.6, https://www.ohioattorneygeneral.gov/
getattachment/9e4a7fcf-37ab-40b4-92a3-4 fea50986991/2006-031.aspx
[https://perma.cc/ZWZ83XL8] [hereinafter Ohio AG Opinion].
10. Id. The law was updated most recently on October 29, 2018, in Am. Sub. S.B. 66 § 1 at
31–33.
11. Dawson, 2015-Ohio-488, ¶ 22.
12. See Ohio AG Opinion, supra note 12, at 2-291 (“ R.C. 2967.16(C)(3) restores the privilege
of serving as a juror on a petit jury to a person who was convicted of a felony under the laws of Ohio
prior to, or on or after July 1, 1996, and who has completed his probation or a period of one or more
community control sanctions.”); see generally Ohio Trial Court Jury Use and Management Standards
adopted by the Supreme Court of Ohio on August 16, 1993, Standard 4 (“ [a]ll persons should be
eligible for jury service except those who . . .[h]ave been convicted of a felony and have not had their
civil rights restored”).
13. OHIO R EV. C ODE ANN. § 2953.33(A) (West 2020) (“ An order issued under section 2953.37
of the Revised Code to expunge the record of a person’s conviction or, except as provided in division
(G) of section 2953.32 of the Revised Code, an order issued under that section to seal the record of a
person’s conviction restores the person who is the subject of the order to all rights and privileges not
otherwise restored by termination of the sentence or community control sanction or by final releas e
on parole or post-release control.”); id. § 2967.17(B)(2) (“ Any person granted an administrative
release under this section may subsequently apply for a commutation of sentence for the purpose o f
regaining the rights and privileges forfeited by conviction,” subject to certain exceptions).

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the General Assembly intended to restore a felon’s rights and privileges
when the felon satisfies any of the conditions set forth in R.C.
2967.16(C).” 14
While “collateral sanctions” such as disqualification from jury
service are less visible than incarceration, “their consequences to felons
may be equally profound” for reintegration. 15 For instance, allowing those
with felony convictions to take part in the judicial process legitimizes the
law and likely facilitates law-abiding conduct. 16 Those convicted of
felonies who served on a jury often find the experience validating and
transformative, a “recognition of their reformation.” 17 Jury exclusion, on
the other hand, “impedes the ability of felons to transition back into
society as they are denied a stake in what happens in their communities.”18
In addition, the absence of “those with direct experience of the
criminal justice system” is a detriment to juries, since the workings of the
system “are often not intuitive.” 19 For example, those with felony
convictions may better understand common factors of wrongful
conviction, such as why someone would falsely confess to a crime he or
she did not commit. 20

14. Ohio AG Opinion, supra note 12, at 2-298.
15. Christopher Uggen, Jeff Manza & Melissa Thompson, Citizenship, Democracy, and the
Civic Reintegration of Criminal Offenders, ANNALS, AAPSS 281, 296, 303–04 (May 2006), citing
Jeremy Travis, Invisible punishment: An instrument of social exclusion, in INVISIBLE PUNISHMENT:
T HE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT, ed. Marc Mauer and Meda ChesneyLind, 15, (2002); James M. Binnall, Sixteen Million Angry Men: Reviving A Dead Doctrine to
Challenge the Constitutionality of Excluding Felons from Jury Service, 17 VA. J. S OC. P OL’Y & L. 1,
22 (2009). See also Uggen et al., supra note 17, at 303–04.
16. See, e.g., James M. Binnall, Felon-Jurors in Vacationland: A Field Study of
Transformative Civic Engagement in Maine, 71 ME. L. R EV. 71, 88–96 (2018) (detailing a study
finding that Maine’s lack of felon exclusion helped “ build a former offender’s self-concept, provide
pro-social roles, and promote civic immersion tend to promote criminal desistance”); Tom R.
Tyler, Does the American Public Accept the Rule of Law? The Findings of Psychological Research
on Deference to Authority, 56 DEP AUL L. R EV. 661, 661 (2007); see also KENNETH L. KARST,
B ELONGING TO AMERICA—EQUAL C ITIZENSHIP AND THE C ONSTITUTION 4 (1989) (“ The most
heartrending deprivation of all is the inequality of status that excludes people from full membership
in the community, degrading them by labeling them as outsiders, denying them their very selves.”).
17. James M. Binnall, Summonsing Criminal Desistance: Convicted Felons’ Perspectives on
Jury Service, 43 L. & S OC. INQUIRY 4, 15 (2018).
18. Amanda L. Kutz, A Jury of One’s Peers: Virginia’s Restoration of Rights Process and Its
Disproportionate Effect on the African American Community, 46 W M. & MARY L. R EV. 2109, 2135
(2005).
19. Anna Roberts, Casual Ostracism: Jury Exclusion on the Basis of Criminal Convictions, 98
MINN. L. R EV. 592, 606 (2013).
20. Id. at 609. In Ohio, low-level felonies include nonviolent offenses such as forgery, theft,
receiving stolen property, or failure to pay child support. See generally Looking Forward: A
Comprehensive Plan for Criminal Justice Reform in Ohio, ACLU OF OHIO & OHIO JUST. & P OL’Y
C TR. (Mar. 2016).

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Felon exclusion from jury service creates even more “glaring racial
disparities” than felon disenfranchisement, including “[r]educing the
representation of black men on juries by thirty percent[.]”21 This exclusion
prevents communities of color from participating in jury service because
“the rate of black and Hispanic incarceration for felonies [is] several times
higher than the same rate among white defendants.” 22 Such exclusion
“belies the democratic legitimacy of juries as adjudicative bodies
representing the totality” of the community. 23 The exclusion of those with
criminal records risks “exacerbating racial disparity within the jury
system,” thus undermining “the perceived impartiality of the justice
system and, at the most fundamental level, the rule of law.” 24
In enacting Ohio Rev. Code § 2967.16(C)(1), the Ohio General
Assembly decided that it was more important to have a representative jury
than it was to keep all those with felony convictions from jury service. 25
This law sets Ohio apart from certain other states who opted to keep those
with felony convictions permanently ineligible, even at the expense of a
more representative jury. 26 This legislation follows the pattern of the Ohio

21. Brian C. Kalt, The Exclusion of Felons From Jury Service, 53 AM. U.L. R EV. 65, 113–14
(2003); see also Christopher Uggen, Ryan Larson & Sarah Shannon, 6 Million Lost Voters: StateLevel Estimates of Felony Disenfranchisement, S ENT’ G P ROJECT, 3 (2016) (“ One in 13 African
Americans of voting age is disenfranchised, a rate more than four times greater than that of nonAfrican Americans.”), http://www.sentencingproject.org/wp-content/uploads/2016/10/6-MillionLost-Voters.pdf [https://perma.cc/94JR-TXLT].
22. Juan R. Sánchez, A Plan of Our Own: The Eastern District of Pennsylvania’s Initiative to
Increase Jury Diversity, 91 T EMP . L. R EV. ONLINE 1, 12–13 (2019) (discussing national statistics);
Sharion Scott, Justice in the Jury: The Benefits of Allowing Felons to Serve on Juries in Criminal
Proceedings, 57 W ASH. U. J.L. & P OL’ Y 225, 236–37 (2018) (“ [M]any modern day laws limit or
forbid the inclusion of former felons on juries, eliminating a large number of blacks that have the
potential to serve.”).
23. Ashley Alexander, Banned from the Jury Box: Examining the Justifications and
Repercussions of Felon Jury Exclusion in the District of Columbia, 57 AM. C RIM. L. R EV. 11, 17
(2020) (discussing the disproportionate racial impact of felony-juror exclusion in D.C.).
24. Roberts, supra note 19, at 605, quoting Kevin R. Johnson, Hernandez v. Texas: Legacies
of Justice and Injustice, 25 C HICANO-LATINO L. R EV. 153, 158 (2005) (mentioning “ disqualification
of felons” as one of the mechanisms that bars “ disproportionate numbers of Latina/os from serving
on juries”).
25. See Ohio AG Opinion, supra note 12.
26. In some circumstances, a state may pass a law that excludes all those with felony
convictions from juries, even if that law has a disparate impact. However, rational basis is not
sufficient to overcome a fair cross section violation. See Taylor v. Louisiana, 419 U.S. 522, 534 (1975)
(a violation of the fair cross section requirement of the Sixth Amendment “ cannot be overcome on
merely rational grounds.”). To overcome a fair cross section violation, the state must present
“ weightier reasons” that justify the impact on the composition of the jury. Id.

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General Assembly’s other efforts to restore rights and privileges in recent
years to those with prior convictions. 27
The numbers of those affected are significant: more than 20,000
inmates are released from custody in Ohio every year. 28 In total, only
about 31,000 of those released throughout those years are still on some
form of post-release control. 29 As of 2018, “[a]n estimated 994,000
Ohioans are living with a felony conviction—approximately one in eleven
adults in the state . . . .” 30
III. HOW COURT S ARE IMPLEMENT ING T HE LAW .
This article’s concern is not with the law itself but with the dramatic
unevenness of its implementation, to the extent that courts in the most
populous counties in the state have been, to varying degrees, defying the
law for years.
A jury commission or trial judge in a particular county cannot ignore
state law and, on his or her own accord, prohibit those with felony
convictions whose rights have been restored from serving on juries. By so
doing, such a prohibition causes a racial and sex-based disparity that
primarily impacts African-American men in the affected counties. 31 It
also creates a disparity between those with felony convictions whose
rights have been restored and who live in counties with different juror
eligibility practices. There is no compelling, or even rational,
governmental reason for treating jury eligibility for those with felony

27. See, e.g., Fatima Hussein, Kasich Signs “Ban the Box” into Law, C INCINNATI ENQUIRER,
May 15, 2015 (“ Ohio Gov. John Kasich on Tuesday signed into law a bill that will bar public
employers from including on job applications questions concerning an applicant’s criminal
background.”); Joseph R. “ Randy” Klammel, Ohio SB 66 Expands Expungement Eligibility – But It
Truly Does Much More, OHIO S T. B. ASS’ N, Dec. 28, 2018 (“ In summary, expungement is now
available to persons with nonviolent, nonsexual misdemeanors and/or felony offenses of the fourt h
and fifth degree. SB 66 allows for expungement review for a person with up to five felonies of the
fourth or fifth degree.”).
28. OHIO
DEP ’ T
R EHAB.
&
C ORR.,
2020
Annual
Report,
at
19,
https://drc.ohio.gov/Portals/0/ODRC%20FY2020%20Annual%20Report%202%202%281%29.pdf
[https://perma.cc/HA2M-S72U].
29. Id. at 41.
30. Michael Shields & Pamela Thurston, Wasted Assets: The Cost of Excluding Ohioans with
a Record from Work, P OL’ Y MATTERS OHIO AND OHIO JUST. & P OL’ Y C TR. (Dec. 18, 2018).
31. Sarah K.S. Shannon, Christopher Uggen, Jason Schnittker, Melissa Thompson, Sara
Wakefield & Michael Massoglia, The Growth, Scope, and Spatial Distribution of People with Felony
Records in the United States, 1948-2010, 54 DEMOGRAPHY 1795, 1805; Kalt, supra note 21, at 113–
14 (“ Reducing the representation of black men on juries by thirty percent without dissent is difficu l t
to imagine, but felon exclusion does just that.”).

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convictions differently from county to county, even if a jury commission
is acting entirely in good faith and simply misunderstands the law. 32
According to their Local Rules, at least some county courts in Ohio
appear to follow the state law that permits those with felony convictions
to serve on juries once they have completed their sentence and community
control. 33 Numerous disparities remain, however. As discussed below, the
three most populous counties in Ohio, for example, have either
inconsistently applied the law, or consistently flouted the law, by
disqualifying from jury service anyone who has been convicted of a
felony, regardless of how long ago the conviction took place or whether
that individual has completed community control sanctions. 34
A.

Cuyahoga County’s jury selection process.

For at least the prior 22 years, the practice of the Cuyahoga County
Common Pleas Court Jury Commission administrators had been to
remove all potential jurors with felony convictions. 35 Starting around the
beginning of 2020, Cuyahoga County updated its summons form and
website to inform jurors of the correct state law: “You are disqualified

32. See Garcia-Dorantes v. Warren, 801 F.3d 584, 604 (6th Cir. 2015) (“ [B]ecause the glitch
was inadvertent, no state interest was advanced by the computer error and subsequent
underrepresentation of minorities in the jury venire.”).
33. See, e.g., Lucas County L.R. 7.02(B) (2019) (listing as ineligible those who “ are convicted
felons whose rights have not been restored”); Scioto County L.R. XVI(C)(1)(e) (2004) (listing as
ineligible those who “ [h]ave been convicted of a felony and have not had their civil rights restored”);
Summit County L.R. 24.04(A)(5) (“ Pursuant to R.C. 2961.01, any person convicted of a felony under
the laws of this state or any other state or the United States, unless the conviction is reversed or
annulled, is incompetent to serve as a juror, excepting those persons who have been convicted under
Ohio law and incarcerated under Ohio law and have had the restoration of their rights restored
pursuant to R.C. 2967.16. Pursuant to such section, those persons who have been granted a final
release by the Ohio Parole Authority, as otherwise provided in R.C. 2967.16, are competent to serve
as jurors in Ohio. This section is applicable only to those persons convicted under Ohio law and
incarcerated in Ohio institutions and are otherwise restored to their rights pursuant to R.C 2967.16.”).
34. See discussion infra Part III. Even federal courts in Ohio have been confused on this issue.
While some courts have properly referenced the rights of those convicted of a felony as discussed in
Ohio Revised Code §§ 2961.01 and 2967.16, see Lumpkin v. United States, No. 1:15 CR 317, 2018
WL 467515, at *2 (N.D. Ohio Jan. 18, 2018) (“ when Devine was released from prison in June of
2006, her civil rights to vote, hold public office, and serve on a jury were automatically restored”),
others have improperly cited § 2961.01 without considering how § 2967.16 restores certain rights.
See Jones v. Bradshaw, 489 F. Supp. 2d 786, 810 (N.D. Ohio 2007) (“ Under Ohio law, a juror who
has been convicted of a felony cannot serve as a juror absent a full pardon.”); see also Hanna v. Ishee,
No. C-1:03-CV-801, 2009 WL 485487, at *15 (S.D. Ohio Feb. 26, 2009) (citing Jones, 489, F. Supp.
2d at 810).
35. The Jury Room, On The Record: The Podcast of the Cuyahoga County Common Pleas
Court, at 4:53 (Apr. 1, 2018), https://www.buzzsprout.com/99872 [https://perma.cc/7MCJ-MM8Z]
(“ If you’re a felon, you’re excused.”).

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from service if you have been convicted of a felony and are currently on
probation or are serving a community control sanction.” 36 The Cuyahoga
Court of Common Pleas Local Rules still do not reference how a felony
conviction affects juror eligibility. 37
At a pretrial hearing in the Cuyahoga County Court of Common
Pleas, in State v. Sowell, Cuyahoga C.P. No. 2011-1921 (June 1, 2011),
three court officials testified about the system that they used to select
potential jurors: Gregory M. Popovich, the Court Administrator for the
Cuyahoga County Court of Common Pleas; Colleen Kelly, an employee
for the Jury Commission; and Paul Ley, the Assistant Director of
Information Services for the Cuyahoga County Court of Common Pleas.
Mr. Popovich stated that the County selects potential jurors from a
single source—the voter registration list. 38 He explained that through a
series of “several random draws” performed by software designed by a
court employee, the list of potential jurors for a given week is generated. 39
That list is generated every Tuesday. 40
The Jury Commission then mails a jury summons to each potential
juror. 41 The summons asks for personal and demographic information
including “name, birth date, age, address, city, zip, telephone number,
home, cell, work, occupation, employer, married, single, divorced,
separated, widowed, spouse’s occupation, spouse’s employer, can you
read, speak and understand English.” 42 In another section of the summons,
it asks whether the individual has served on a jury within the last two
years, and “if there’s a felony conviction and if you’re over the age of 75
and you’re choosing not to serve.” 43
Colleen Kelly, an employee for the Jury Commission, testified
next. 44 Her job duties included “answering the phones, calls from people
that do get summonses . . . .”45 Ms. Kelly noted that if potential jurors are
older than 75, they were not required to serve and are automatically

36. C UYAHOGA C TY.
C T.
C OM.
P L., Jury
Duty
(emphasis
original),
http://cp.cuyahogacounty.us/internet/Jury%20Duty.aspx#3 [https://perma.cc/WDH4-QUN8] (click
“ Who is exempt or disqualified from jury duty?” under FAQs).
37. Cuyahoga County C.P. L.R. 35.0.
38. Transcript of Trial at 1111–12, State v. Sowell, No. 2011-1921 (Cuyahoga Com. Pl., June
1, 2011); see also id. at 1111 (“ We just summon people that are registered voters.”).
39. Id.
40. Id. at 1113.
41. Id. at 1116–17.
42. Id. at 1117.
43. Id.
44. Id. at 1121.
45. Id.

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granted a health waiver without the need for a doctor’s note. 46 She entered
an “H” in the system for these individuals. 47
She went on to explain the following:
[A]fter Tuesday’s draw, I run a list of what we call felons, and then I
check them against the Sheriff’s Department database, and then I mark
them and put an “F” in there for felon.
And then a lot of them call in and say, “Hey, I have a felony,” so they’re
automatically taken out. 48

Ms. Kelly described other types of circumstances that allow or require a
potential juror to be excused or receive a postponement of service. 49 She
testified that her office handles these excuses and postponements without
judicial involvement. 50
Paul Ley, the Assistant Director of Information Services for the
Cuyahoga County Court of Common Pleas, designed the jury selection
software in or about 1998. 51 He described the process by which the court
selected potential jurors. Each year, the Jury Commission receives the
entire list of registered voters from the Board of Elections. 52 From that
list, the Jury Commission
[G]rab[s] what we think we need for a full year . . . .So say we get
50,000 jurors. That’s going to do our needs for a whole year. We getthat
file and randomly draw those 50,000 jurors.
And then from there, every Tuesday we draw what we think we need for
that next week for jurors. Typically, you know, we try to get 200 jurors
in. So we do another random draw based on that 50,000 jurors.
From there, the jurors check in, do respond and actually show. They are
placed on panels after that. The judges call down for panels, randomly
drawn panels. 53

Mr. Ley explained that all the excuses are funneled through the judge
and the court, except for the ones that are permitted by statute. 54 People
over age 75, with previous juror service within two years, and “a felony”

46.
47.
48.
49.
50.
51.
52.
53.
54.

See id. at 1121–22.
Id.
Id. at 1122.
Id. at 1122–25.
Id. at 1125.
Id. at 1129.
Id. at 1132.
Id. at 1131.
Id. at 1135.

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were excused without any judicial intervention. 55 Mr. Ley went on to
explain how the court verifies these excuses. 56 Felony convictions are
confirmed with the Sherriff’s database described by Ms. Kelly, and the
court also has its own database, the CJIS application, which allows them
to check for convictions on the court’s docket. 57 According to Mr. Ley, a
felony conviction at any point in one’s life automatically renders a person
ineligible for jury service. 58 Potential grand jury members, as well as
municipal court venires, 59 were also selected in the same manner. 60
At the conclusion of the hearing, the trial court concluded that “it’s
been clear from the testimony here that the draw of the jurors from the
community for this particular case has been no different than any other
case. As a matter of fact, the same procedures were used as for the policy
for general juries in this jurisdiction.” 61
Accordingly, until the changes in early 2020, there was no
representation of those with felony convictions in Cuyahoga County
venires, even though Cuyahoga County’s felon population may be even
higher than overall state estimates, given it had “the highest share of
returning prisoners in the state,” with just over one-fifth (22%) of all
people released from prison in Ohio in 2001 being released to Cuyahoga
County. 62
For at least the last 20 years, by design, there was no chance a person
with a felony conviction would appear in an eligible jury pool in

55. Id. (“ Q. So it’s the practice to excuse those three without any judicial intervention? A.
Correct.”).
56. Id. at 1136.
57. Id.
58. Id. at 1136–37 (“ Q. And is it your practice that if a person has a felony conviction any time
in their life, then they will not be eligible for jury duty? A. I believe that’s how the statute reads, yes.
Q. That’s your interpretation? A. Yes.”).
59. C LEVELAND MUNICIPAL C OURT, Jury Services, https://clevelandmunicipalcourt.org/
judicial-services/administrative-services/jury-services [https://perma.cc/2SUK-TPGG] (“ In 2013, the
Cleveland Municipal Court and the Cuyahoga County Common Pleas Court united their resources
and created a new system in which we share jury services. Cleveland Municipal Court jurors are
drawn from a pool of registered voters in Cleveland and the Village of Bratenahl supplied by the
Cuyahoga County Board of Elections.”).
60. I-Team Exclusive: Inside the Grand Jury, F OX 8, (Jul. 23, 2015, 6:26 PM),
https://fox8.com/news/i-team-exclusive-inside-the-grand-jury/
[https://perma.cc/5D47-U3LU]
(“ Grand Jury members “ are drawn from the same pool of people chosen to serve on juries in court
cases.”).
61. Transcript of Trial at 1142, State v. Sowell, No. 2011-1921 (Cuyahoga Com. Pl., June 1,
2011).
62. NANCY G. LA VIGNE, GILLIAN L. T HOMSON, C HRISTY VISHER, VERA KACHNOWSKI &
JEREMY Travis, A P ORTRAIT OF P RISONER R EENTRY IN OHIO 60–80 (2003).

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Cuyahoga County. 63 The exclusion of people with felony convictions was
so systemic in Cuyahoga County that the Jury Commission established
three separate processes to identify, verify, and then exclude people with
felony convictions. First, the Jury Commission identified people with
felonies using the Sherriff’s database as described by Ms. Kelly, and
second, by using the court’s own database, the CJIS application, which
allows the Jury Commission to check for convictions on the court’s
docket. 64 Lastly, people with felony convictions were also removed if they
called in to alert the officials of their prior conviction. 65
Because of the systemic exclusion of people with felony convictions
in Cuyahoga County juries over the last two decades—as well as the high
percentage of African-American men in that excluded population—
venires in the Cuyahoga County Court of Common Pleas using this jury
selection process reflected a significant underrepresentation of AfricanAmerican men. Further, such a disparity has been observed in these jury
pools over a significant period of time. 66
It remains to be seen how the 2020 changes will affect the
representation of those with felony convictions or African-American men
in Cuyahoga County jury pools, and to what extent individual judges and
attorneys are aware of this change.
B.

Hamilton County’s jury selection process.

The Hamilton County Courts provide the correct statement of the law
on their website, explaining, “Jurors who have prior felony convictions
are eligible to serve on jury duty provided that they are no longer

63. Transcript of Trial at 1129, State v. Sowell, No. 2011-1921 (Cuyahoga Com. Pl., June 1,
2011).
64. Id. at 1136.
65. Id. at 1127. In a rare case when a prospective juror with a felony conviction slipped into
the jury pool, the trial court still removed her after learning of her felony conviction, in contravention
of Ohio Rev. Code § 2967.16. State v. Lee, 2017-Ohio-1449, ¶ 22 (Ohio Ct. App. 2017). The Court
of Appeals found no prejudice since any argument that the prospective juror “ would have voted to
acquit is speculative”—a seemingly impossible standard for any defendant to overcome. Id. ¶ 27
(citing State v. Harrison, 2015-Ohio-1419, ¶ 27, 31 N.E.3d 220, 233 (Ohio Ct. App. 2015) (internal
quotation omitted). As described in section IV, below, the constitutional implications of juror
exclusion are clearer on a systemic level than in an individual instance.
66. Transcript of Trial at 819–20, State v. Madison, No. 579539 (Cuyahoga Com. Pl, Apr. 28,
2014) (trial attorney noting that out of 300–400 jury trials in Cuyahoga Court of Common Pleas over
several decades, “ I can probably think of maybe two or three . . . jury venires that I have had that
actually reached that level [of proportionate representation of African-Americans on jury venires]. I
have had a number of . . . jury venires in which there have been no minorities of any kind.”).

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incarcerated or on their period of probation/community control.”67 The
Hamilton County Local Rules also state, less specifically, that persons are
ineligible for jury service if they “[h]ave been convicted of a felony and
have not had their civil rights restored.” 68
The Court’s juror information website permits a potential juror with
a prior felony conviction to “opt out” of jury service. As the Court’s
website explains, “[i]f you wish to be excused based on a past felony
conviction the Jury Commission Office will consider your request.”69 No
additional information could be found on the website about what the
guidelines are for allowing a person with a felony conviction to “opt out”
of jury service. Allowing a subset of otherwise qualified jurors to “opt
out” could be constitutionally problematic, especially when “a flavor, a
distinct quality is lost” by the absence of the excluded group. 70
In addition, there are pressing questions as to whether courts or
attorneys understand the appropriate standard for jury service. In a death
penalty case before Judge Steven Martin in the Hamilton County Court of
Common Pleas, for example, the trial court repeatedly removed
prospective jurors for cause for having prior felony convictions, excusing
a total of five potential jurors. 71 This included four jurors before voir dire,
including one with a conviction from 17 years earlier. 72 The Court listed
all four of these jurors in its two entries “Excusing Jurors for Cause.” In
addition, during voir dire, the trial court removed a prospective juror for
cause, even after he made clear that his conviction was a decade old and
that he was not on post-release control. 73
For each dismissal in that case, defense counsel not only failed to
object or request to question the jurors, but repeatedly agreed that the
prospective jurors should be removed for cause for having prior felony
convictions. On March 22, 2010, for example, defense counsel agreed to

67. HAMILTON C TY. C TS., Juror Excuses, https://hamiltoncountycourts.org/index.php/jurorexcuses/ [https://perma.cc/RY8X-66DZ] (further noting that any wish to be excused based on a past
felony conviction will be considered by the Jury Commission Office).
68. L.R. 8(IV)(A) of the Court of Common Pleas of Hamilton County, General Division.
69. HAMILTON C TY. C TS., supra note 70.
70. Taylor, 419 U.S. at 532; see Duren v. Missouri, 439 U.S. 357, 369 (1979).
71. Transcript of Proceedings on Motions, at 250–51, State v. Pickens, No. B-0905088
(Hamilton Com. Pl., Mar. 22, 2010); Transcript of Proceedings on Pretrial Motions at 400, State v.
Pickens, No. B-0905088 (Hamilton Com. Pl., Mar. 31, 2010). The author is lead counsel on the
pending habeas corpus petition challenging this conviction in federal court. Pickens v. Shoop, No.
1:19-cv-558, 2020 WL 3128536 (S.D. Ohio June 12, 2020).
72. Transcript of Proceedings on Pretrial Motions at 400, State v. Pickens, No. B-0905088
(Hamilton Com. Pl., Mar. 31, 2010).
73. Transcript of Trial at 652–53, State v. Pickens, No. B-0905088 (Hamilton Com. Pl., Apr.
12, 2010) (Court: “ What we’re going to do is excuse you from service because of your felony.”).

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the removal of two prospective jurors with felony convictions before voir
dire, stating that “they would be excused anyway so we would agree they
should be excused.” 74
In another case, the Court of Appeals in Hamilton County has
recognized that “a convicted felon may have the right to serve as a juror
restored by obtaining a pardon or by the terms outlined in R.C.
2967.16(C)(1),” and that the Hamilton County Court of Common Pleas
“erred in excluding the two potential jurors in this case solely because
their convictions had not been pardoned, expunged, or reversed on
appeal.” 75 Nonetheless, the Court of Appeals found that the trial court did
not abuse its discretion in excusing the jurors for cause “because the
record fails to demonstrate that either juror had the right to serve as a juror
restored pursuant to the terms of R.C. 2967.16(C)(1)[.]” 76
The Court of Appeals’ disinclination to look into the matter further
does not inspire confidence in the court’s decision, particularly since
potential jurors may have lacked any opportunity to discuss on the record
their restoration of rights. 77 Accordingly, this is a concerning gap in the
protection of the rights of those with felony convictions from court to
court within the county.
C.

Franklin County’s jury selection process.

On its website, the Franklin County Court of Common Pleas lists the
incorrect standard for disqualification. According to the site, if you “have
been convicted of a felony that has not been expunged,” then “that, by
law, make[s] you ineligible for jury service in Franklin County.” 78 As
noted above, pursuant to Ohio Rev. Code § 2967.16(C)(1), there is no
requirement that a felony be expunged before one can serve on a jury.
Accordingly, the Franklin County Court of Common Pleas is

74. Transcript of Proceedings on Motions, at 250–51, State v. Pickens, No. B-0905088
(Hamilton Com. Pl., Mar. 22, 2010).
75. Dawson, 2015-Ohio-488, ¶ 23.
76. Id. (citing State v. Stone, 2014-Ohio-4444, ¶ 36 (Ohio Ct. App. 2014) (holding that “we
cannot say that the trial court abused its discretion in dismissing Prospective Juror No. 3 for cause”
where “ nothing in the record indicated that his rights had been restored” after a prior conviction)).
77. See, e.g., State v. Madrigal, 87 Ohio St. 3d 378, 393, 721 N.E.2d 52, 67 (Ohio 2000) (“ The
better practice in this case would have been to question the juror, on the record, to determine the status
of his previous conviction.”). In that case, however, the court determined that the juror would have
been excused anyway, since the same prosecutor and police officer from the case had been involved
in his prior conviction. Id.
78. F RANKLIN C TY. C T. C OM. P L., Requests For Disqualification, https://www.fccourts.org/
248/Requests-for-Disqualification [https://perma.cc/V6MG-PVDC].

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misinforming potential jurors about the standards for disqualification
from jury service under state law.
The Local Rules preclude individuals from jury eligibility who
“[h]ave been convicted of a felony and have not had their civil rights
restored.” 79 According to the Rules, Ohio Rev. Code § 2961.01
“[p]recludes convicted felons from serving as jurors.” 80 While the first
formulation is technically correct, the second formulation clearly is not.
Rather, Ohio Rev. Code § 2967.16(C)(1) restores the privilege of serving
as a juror on a petit jury to a person who was convicted of a felony who
has completed his probation or a period of one or more community control
sanctions. Even in the first formulation, the Local Rules include no
definition of “restored” or any reference to Ohio Rev. Code
§ 2967.16(C)(1). The only reference to “restore[d]” rights in Ohio Rev.
Code § 2961.01, the statute cited in the Local Rule, is when someone
receives a full pardon. 81 There is nothing in the Local Rules informing
judges, attorneys, or potential jurors that those with felony convictions
may have their right to juror eligibility restored outside of the pardon
process.
Accordingly, the Local Rules, combined with the information
available on the court’s website, serve to erroneously inform the public
that persons with a felony conviction are precluded from jury service
unless the conviction is expunged or pardoned.
IV. CONST IT UT IONAL IMPLICAT IONS OF T HE IMPROPER EXCLUSION
JURY- ELIGIBLE PERSONS WIT H A FELONY CONVICT ION

OF

Trial by jury presupposes a jury drawn from a pool broadly
representative of the community as well as impartial in a specific
case. . . . [T]he broad representative character of the jury should be
maintained, partly as assurance of a diffused impartiality and partly
because sharing in the administration of justice is a phase of civic
79. Loc.R. 27.07 of the Court of Common Pleas of Franklin County, General Division (citing
OHIO R EV. C ODE ANN. § 2961.01 (West 2020).
80. Id. The Montgomery Court of Common Pleas lists as ineligible those who “ [h]ave been
convicted of a felony, have not completed their jail time, probation, or community sanction, and have
not had their civil rights restored.” Loc.R. 1.23(D)(3) of the Court of Common Pleas of Montgomery
County. While this is a less problematic framing than the Franklin County Local Rules, it is still
potentially confusing. As § 2967.16 automatically restores ones’ rights at the end of community
control or parole, it is not clear why the rule lists “ have not had their civil right restored” as a separate
requirement. See OHIO R EV. C ODE ANN. § 2967.16 (West 2020). The Montgomery County Court of
Common Pleas website appears to provide no clarifying discussion of the matter. See MONTGOMERY
C TY. C T. C OM. P L., Jury FAQ, https://montcourt.oh.gov/jurors/#jury-faq [https://perma.cc/X3JCD47C].
81. OHIO R EV. C ODE ANN. § 2967.16(C)(1) (West 2020).

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responsibility. 82

Even apart from violating state law, the underrepresentation of a
cognizable group in a petit jury venire can constitute a denial of the Due
Process Clause of the Fourteenth Amendment, 83 the Fair Cross Section
requirement of the Sixth Amendment, 84 and the Equal Protection Clause
of the Fourteenth Amendment. 85 The principles establishing a Sixth
Amendment fair cross section claim are the same for showing lack of a
fair cross section in violation of the Fourteenth Amendment’s Due Process
Clause. 86 Accordingly, constitutional challenges relating to
underrepresentation in a jury venire generally arise as either (1) a fair
cross section claim under the Sixth and Fourteenth Amendments or (2) an
equal protection claim under the Fourteenth Amendment.
A.

Fair Cross Section under the Sixth and Fourteenth Amendments

The presence of a fair cross section of the community on venires,
panels, or lists from which petit juries are drawn is essential to the
fulfillment of both the Fourteenth Amendment’s guarantee of due process
and the Sixth Amendment’s guarantee of an impartial jury trial in criminal
prosecutions. 87 This Sixth Amendment guarantee—made binding on the
States through the Fourteenth Amendment—ensures not that the
particular jury hearing the case reflect a fair cross section of the
community, but rather that “the jury wheels, pools of names, panels or
venires from which juries are drawn [do] not systematically exclude
distinctive groups in the community and thereby fail to be reasonably
representative thereof.” 88 Similarly, a state cannot “subject a defendant to
indictment or trial by a jury that has been selected in an arbitrary and
discriminatory manner, in violation of the Constitution and laws of the
United States.” 89 Accordingly, “a criminal defendant has standing to
challenge the system used to select his grand or petit jury, on the ground
that it arbitrarily excludes from service the members of any race, and

82. Thiel v. Southern Pac. Co., 328 U.S. 217, 227 (1946) (Frankfurter, J., dissenting).
83. Peters v. Kiff, 407 U.S. 493, 501–03 (1972).
84. Taylor, 419 U.S. at 531.
85. Castaneda v. Partida, 430 U.S. 482, 494 (1977).
86. Peters, 407 U.S. at 495–96; see Duren v. Missouri, 439 U.S. 357, 358–359 (1979); Taylor,
419 U.S. at 528; see also Duncan v. Louisiana, 391 U.S. 145, 149 (1968) (making applicable to the
states the Sixth Amendment right to a petit jury through the Due Process Clause of the Fourteenth
Amendment).
87. Taylor, 419 U.S. at 526, 530; Peters, 407 U.S. at 501–03.
88. Taylor, 419 U.S. at 526, 538 (citing Duncan v. Louisiana, 391 U.S. 145 (1968)).
89. Peters, 407 U.S. at 502–03.

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thereby denies him due process of law.” 90 In other words, under both the
Sixth and Fourteenth Amendments, a fair cross section claim is concerned
with whether steps in the jury selection process that precede the selection
of petit jurors fail to include representative numbers of groups in the
community.
A fair cross section claim is generally not waived by failure to raise
it at trial. Counsel are not expected to be on notice of systematic jury
composition issues from the composition of a single jury, particularly
when there is an underrepresentation of a relatively small group. 91 Each
jury pool will vary even without systematic exclusion, and thus “[a] gaze
into the jury gallery tells you nothing and, in fact, can be misleading.” 92
Further, to “suggest that an effective defense attorney must investigate the
jury assembly process in every case conditioned upon his client’s loss of
the right is unnecessary and wasteful.” 93 In Garcia-Dorantes, for
example, the U.S. Court of Appeals for the Sixth Circuit affirmed a grant
of habeas corpus where the attorney learned about the facts underlying the
claim after trial. 94 Specifically, the attorney read in a news article about a
computer glitch that had caused racial disparities in the jury venire. 95 In
that case, the Sixth Circuit found that the facts underlying the claim were
not “reasonably available” to counsel at the time of the trial. 96
Under Duren, a criminal defendant alleging a fair cross section
violation under the Sixth and Fourteenth Amendments must satisfy a
three-prong prima facie test by showing the following:
(1) [T]he group alleged to be excluded [from the jury system] is a
“distinctive” group in the community; (2) that the representation of this
group in venires from which juries are selected is not fair and reasonable
in relation to the number of such persons in the community; and (3) that

90. Id. at 504–05 (evaluating a claim that African-Americans were systematically excluded
from jury service, and citing 18 U.S.C. § 243 (prohibiting exclusion of jurors “ on account of race or
color”)).
91. See Ambrose v. Booker, 684 F.3d 638, 645–47 (6th Cir. 2012).
92. Id. at 646 (quoting Ambrose v. Booker, No. 06-13361-BC, 2011 WL 1806426, at *2 (E.D.
Mich.)).
93. Id.
94. Garcia-Dorantes, 801 F.3d at 598 n.9 (6th Cir. 2015).
95. Id. at 590.
96. Id. at 598 n.9 (“ Because the factual basis for Garcia-Dorantes’ claim—the computer
glitch—was not reasonably available to counsel, and Garcia-Dorantes could not have known that
minorities were underrepresented in the jury pool by looking at the venire panel, Garcia-Dorantes has
shown cause.”); see also Ege v. Yukins, 485 F.3d 364, 372 (6th Cir. 2007) (holding that where defens e
counsel did not get actual notice of a letter until four years after it was written, the court would
consider the date defense counsel learned of the letter as the first date they were actually aware of it);
Ambrose, 684 F.3d at 645.

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this underrepresentation is due to systematic exclusion of the group in
the jury-selection process.97

If a defendant establishes these three prongs, he has established a prima
facie violation of the fair cross section requirement. 98 The burden shifts
then to the government to show “attainment of a fair cross section to be
incompatible with a significant state interest.” 99 This standard was
unanimously reaffirmed by the Supreme Court in the 2010 case of
Berghuis v. Smith. 100 Unlike an equal protection violation, a fair cross
section violation does not require any showing of intent or improper
motive. 101 The U.S. Court of Appeals for the Second Circuit explained
“[w]hile the equal protection clause of the Fourteenth Amendment
prohibits underrepresentation of minorities in juries by reason of
intentional discrimination, ‘[t]he sixth amendment is stricter because it
forbids any substantial underrepresentation of minorities, regardless
of . . . motive.’” 102 Thus, even accidental errors can establish a fair cross
section violation.
1. People who have been convicted of felonies and AfricanAmerican men are distinct groups in the community.
The first prong of a fair cross section violation is that the excluded
jurors are of a distinct group. 103 For the purposes of this article, two
distinct groups excluded from the juries are: (1) those with felony
convictions who were eligible to serve because their civil rights had been
restored and, more broadly, (2) African-American men. Several circuits
have adopted a three-prong test for determining whether a group is
distinctive:
(1) [T]hat the group is defined and limited by some factor (i.e., that the
group has a definite composition such as race or sex); (2) that a common
thread or basic similarity in attitude, ideas, or experience runs through

97. Duren, 439 U.S. at 364.
98. Id.
99. Id. at 367–68.
100. Berghuis v. Smith, 559 U.S. 314 (2010).
101. See United States v. Gelb, 881 F.2d 1155, 1161 (2d Cir. 1989).
102. Id. (alterations in original) (internal citation omitted); see also Nina W. Chernoff, Wrong
About the Right: How Courts Undermine the Fair Cross-Section Guarantee by Confusing It With
Equal Protection, 64 HASTINGS L.J. 141, 141 (2012) (“ Under the Sixth Amendment . . . a defendant
can establish a prima facie violation by showing that the underrepresentation of a distinctive group in
the jury pool is inherent in the selection process, whether by accident or design. The equal protection
clause, in contrast, demands evidence of discriminatory intent.”).
103. See Duren, 439 U.S. at 364.

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the group; and (3) that there is a community of interest among members
of the group such that the group’s interests cannot be adequately
represented if the group is excluded from the jury selection process. 104

Both sex and race are well-established, distinct groups. 105 Thus, AfricanAmerican men are clearly a distinct group for this analysis. 106 In addition,
African-Americans as a group have a long history of underrepresentation
on juries. A study of Lucas County, Ohio, for example, found that “blacks
and Hispanics are underrepresented in a statistically significant degree
beginning with the source list” of potential jurors. 107 After the source list,
“the various jury lists revealed big increases in black and Hispanic
underrepresentativeness.”108 The effects of felony exclusion only
exacerbate this historic underrepresentation. 109 As a result of “the
disproportionately high rate of felony convictions among African
Americans and the policies that disenfranchise those with convictions,
Black people continue to be regularly underrepresented in jury pools.”110
This disparity has a profound effect on the justice system where
studies have shown that “the greater the percentage of Whites on a jury,
the more likely it was to convict a Black defendant” regardless of the type
of crime or the strength of the prosecution’s case. 111 There is a large racial
disparity in support for the death penalty, for example, with whites being

104. Ford v. Seabold, 841 F.2d 677, 681–82 (6th Cir. 1988) (citing Barber v. Ponte, 772 F.2d
982 (1st Cir. 1985) (en banc); Willis v. Zant, 720 F.2d 1212 (11th Cir. 1983), cert. denied, 467 U.S.
1256 (1984).
105. See, e.g., Whitus v. Georgia, 385 U.S. 545, 549–51 (1967); Taylor, 419 U.S. at 532.
106. See also Kutz, supra note 18, at 2110–11 (“ Virginia’s restoration of rights process,
although neutral on its face, disparately impacts the African American community and may deprive
an accused African American of his right to be tried by a jury of his peers in a criminal trial.”).
107. Ronald Randall, James A. Wood & Robert G. Martin, Racial Representativeness of Juries:
An Analysis of Source List and Administrative Effects on the Jury Pool, 29 JUST. S YS. J. 71, 81 (2008).
108. Id. at 82.
109. See Anna Roberts, Casual Ostracism: Jury Exclusion on the Basis of Criminal Convictions,
98 MINN. L. R EV. 592, 602–05 (2013) (“ The exclusion of those with criminal records brings the risk
of exacerbating racial disparity within the jury system.”).
110. Alexis Hoag, An Unbroken Thread: African American Exclusion from Jury Service, Past
and Present, 81 LA. L. R EV. (forthcoming 2020) (manuscript at 20), https://ssrn.com/
abstract=3636336, [https://perma.cc/LF2H-A4W5] (citing MICHELLE ALEXANDER, T HE NEW JIM
C ROW : MASS INCARCERATION IN THE AGE OF C OLORBLINDNESS, 97–114 (2012); EQUAL JUSTICE
INITIATIVE, ILLEGAL R ACIAL DISCRIMINATION IN JURY S ELECTION: A C ONTINUING LEGACY 14–16
(2010), https://eji.org/wpcontent/uploads/2019/10/illegal-racial-discrimination-in-jury-selection.pdf
[https://perma.cc/2N7T-3AEF].
111. Samuel R. Sommers & Satia A. Marotta, Racial Disparities in Legal Outcomes: On
Policing, Charging Decisions, and Criminal Trial Proceedings, 1 P OL’ Y INSIGHTS FROM B EHAV. &
B RAIN S CI . 103, 106–09 (2014) (collecting studies).

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significantly more likely to support the death penalty than blacks. 112
Accordingly, “the systematic exclusion of one race and its unique set of
experiences from the jury process raises serious concerns.” 113 Even
outside of the effect on verdicts themselves, there is a significant impact
of jury demographics on the perceived legitimacy of the judicial
system. 114
People who have a felony conviction constitute a distinct group
under this definition as well. 115 Being convicted of a felony defines and
limits the group of people under consideration. In other words, there is a
clear line of demarcation between those who are “felons” and those who
are not. The experiences of those with felony convictions are unlike those
of other potential jurors. They have firsthand experience with the criminal
justice system and understand the implications and collateral
consequences of convicting someone. Other segments of society lack this
extremely relevant viewpoint, and when people who have been convicted
of a felony are categorically excluded as a class, their perspective is
completely lost from the jury.

112. See Joseph Carroll, Who Supports the Death Penalty?, GALLUP (Nov. 16, 2004),
https://news.gallup.com/poll/14050/who-supports-death-penalty.aspx [https://perma.cc/485P-9BAE]
(“ The data show that 71% of whites support the death penalty, compared with only 44% of blacks.”);
Theodore Eisenberg, Stephen P. Garvey & Martin T. Wells, Forecasting Life and Death: Juror Race,
Religion and Attitude Toward the Death Penalty, 30 J. LEGAL S TUD. 277, 286 (2001) (“ Nearly twothirds of white jurors vote for death on the first vote, compared to about one third of black jurors.”);
William J. Bowers, Benjamin D. Steiner & Marla Sandys, Death Sentencing in Black and White: An
Empirical Analysis of the Role of Jurors’ Race and Jury Racial Composition, 3 U. P A. J. C ONST. L.
171, 192–93 (2001) (There is a clear “ white male dominance” effect in capital sentencing in cases
with black defendants and white victims. “ The presence of five or more white males on the jury
dramatically increased the likelihood of a death sentence . . . . The presence of black male jurors in
[the same cases], by contrast, substantially reduced the likelihood of a death sentence.”).
113. Edward S. Adams & Christian J. Lane, Constructing a Jury that is Both Impartial and
Representative: Utilizing Cumulative Voting in Jury Selection, 73 N.Y.U. L. R EV. 703, 710 (1998).
The authors found difficultly measuring how demographics affect verdict outcomes, but concluded,
“ Since persons of different races often process the same information in different ways, often to
different conclusions, the exclusion of any race or other group results in a sort of unconstitutional
partiality.” Id. (citing Burt Neuborne, Of Sausage Factories and Syllogism Machines: Formalism,
Realism, and Exclusionary Selection Techniques, 67 N.Y.U. L. R EV. 419, 443 (1992) (“ The
systematic exclusion of a particular point of view from the jury box through the exclusion of minority
jurors implicates the very reality that jurors are called upon to certify.”)).
114. Adams, supra note 112, at 710 (“ What becomes apparent in evaluating juries is the impact
of jury demographics on the public’s acceptance of verdicts and the public’s perception of justice.”).
115. See Paula Z. Segal, A More Inclusive Democracy: Challenging Felon Jury Exclusion in
New York, 13 N.Y.C. L. R EV. 313, 348 (2010) (“ The Duren concept of a cognizable or distinct group
encompasses those with conviction histories . . . . At least one federal circuit court has already
conceded that individuals’ contact with the criminal justice system is sufficient to make them a
distinctive group for cross-section purposes.”) (citing United States v. Greene, 995 F.2d 793, 797 (8th
Cir. 1993)).

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“People with felony records are set apart not only by the stigma and
collateral consequences that come with a criminal conviction but also by
the extreme concentration by sex, race, and socioeconomic status.”116
“[I]ncarceration has become a routine life event for low-skilled black
men—more common than serving in the military or earning a college
degree.” 117
Thus, both categories of potential jurors—African-American men
and people with felony convictions—are distinct groups under the first
prong of Duren.
2. Whether the number of those with felony convictions and
African-American men on the juries was fair and reasonable in
relation to their number in the community.
The second prong of a fair cross-section violation is that the distinct
group is unfairly or unreasonably underrepresented. 118 Those with felony
convictions make up at least 5 to 9.9% of the population in Ohio, and
counties with population centers likely have a higher percentage of those
with felony convictions than the state overall. 119 Accordingly, when those
with felony convictions are systematically removed, such exclusion from
a jury is unfair and unreasonable underrepresentation. 120
The prison and community control populations are overwhelmingly
male and disproportionately African-American. 121 People with felony
convictions account for an estimated 8% of all adults in the United States,
but constitute 33% of the African-American adult male population. 122 By
2010, between 15% and 19.9% of black adults in Ohio had a felony
record. 123
Even when African-American men are not completely excluded from
a jury venire, they can be underrepresented as a result of excluding those
with felony convictions. There are a variety of ways to analyze the relative
representation of a group, most frequently through measuring absolute
and comparative disparity. 124 Absolute disparity “measures the difference
between the percentage of a group in the general population and its
116. Shannon et al., supra note 31, at 1797. See generally MICHELLE ALEXANDER, T HE NEW
JIM C ROW : MASS INCARCERATION IN THE AGE OF C OLORBLINDNESS (2012).
117. Shannon et al., supra note 31, at 1797 (internal citations and emphasis omitted).
118. See Duren, 439 U.S. at 364.
119. Shannon et al., supra note 31, at 1810.
120. See Taylor, 419 U.S. at 532.
121. Shannon, supra note 31, at 1797.
122. Id.
123. Id. at 1810.
124. See Garcia-Dorantes, 801 F.3d at 600–04.

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percentage in the qualified wheel.” 125 To find the absolute disparity,
subtract the percentage in the venire from the percentage in the general
population. As an example, “if Asians constitute 10% of the general
population and 5% of the qualified wheel, the absolute disparity is 5%.”126
In contrast, the comparative disparity “measures the decreased likelihood
that members of an underrepresented group will be called for jury
service.” To find the comparative disparity, divide the absolute disparity
by the percentage in the population. So, in the above example the
comparative disparity is 50%. Although courts look at both absolute and
comparative disparities, the U.S. Court of Appeals for the Sixth Circuit
has made clear that the comparative test is more accurate for evaluating
disparities in smaller populations. 127
Analyzing absolute and comparative disparities for representations
in jury venires will reveal whether a particular venire was “not fair and
reasonable in relation to the number of [African-American men] in the
community.” 128 The U.S. Court of Appeals for the Sixth Circuit has found
that an absolute disparity of 3.45% and comparative disparity of 42% for
African-Americans, and a 1.66% absolute disparity and 27.64%
comparative disparity for Hispanics, was sufficient to establish this
prong. 129 The Sixth Circuit has also found that a 1.28% absolute disparity
and 34% comparative disparity was sufficient. 130
In Hamilton County, for example, a statistician recently affirmed that
in the 16 capital trials and grand juries summoned between 1987 and 2016,
African-Americans were underrepresented with an absolute disparity of
7.96% and a comparative disparity of 33.86% using the U.S. Census
Bureau’s 2006–2010 American Community Survey. 131 In other words, “a
third of the African Americans expected to be summoned are missing.”132

125. Id. at 600–01; see also Ramseur v. Beyer, 983 F.2d 1215, 1231 (3d Cir. 1992) (“ Absolute
disparity in the jury selection context is defined as the difference between the percentage of a certai n
population group eligible for jury duty and the percentage of that group who actually appear in the
venire.”).
126. Garcia-Dorantes, 801 F.3d at 601.
127. See id.; see also United States v. Hernandez-Estrada, 749 F.3d 1154, 1160–64 (9th Cir.
2014) (explaining in detail the problems with exclusively relying on the absolute disparity).
128. Duren, 439 U.S. at 364.
129. See Garcia-Dorantes, 801 F.3d at 603.
130. See Smith v. Berghuis, 543 F.3d 326, 338 (6th Cir. 2008), rev’d on other grounds, 559 U.S.
314 (2010); see also Garcia-Dorantes, 801 F.3d at 602 n.12 (explaining why the holding on prong
two in Smith v. Berghuis remains binding precedent despite the Supreme Court reversal); Ambrose,
684 F.3d at 643 (finding a 3.45% absolute disparity and 42% comparative disparity sufficient).
131. Declaration of Jeffrey O’Neal Martin at ¶ 22, 28, Pickens v. Shoop, No. 1:19-cv-558 (S.D.
Ohio June 11, 2020).
132. Id. at ¶ 28.

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In the 24 capital trials seated between 1985 and 2016 in Hamilton County,
African-Americans were underrepresented with an absolute disparity of
10.88% and a comparative disparity of 46.28% using the U.S. Census
Bureau’s 2006-2010 American Community Survey. 133 In other words,
“almost half of the African-Americans expected to be serving on capital
trials are missing.” 134
Where those with felony convictions are completely excluded from
the jury venire, and African-American men were unfairly and
unreasonably underrepresented in the jury venire, the second prong of
Duren is satisfied.
3. Whether the exclusion of those with felony convictions and
underrepresentation of African-American men was systematic.
The final question for determining whether there is a prima facie case
of a Sixth Amendment violation is whether the underrepresentation was
systematic. 135 “Systematic” means that the exclusion or
underrepresentation was “due to the system by which juries were
selected.” 136
In Cuyahoga County, for example, court personnel testified that it
was their regular practice to exclude everyone with a felony conviction,
and that procedures were in place to ensure individuals with a felony
conviction at any time in their lives were not included on eligible jury lists
for at least the last 22 years. 137 The exclusion of those with felony
convictions was so systematic in Cuyahoga County that there were three
separate processes to identify, verify, and then exclude individuals with a
felony conviction at any time in their lives. 138 First, the Jury Commission
identified people with felonies using the Sherriff’s database, second, using
the Court’s own CJIS database, and third, relying on those that called in
and alerted the officials to their felon status. 139 Despite a 2006 Attorney
General advisory opinion confirming that many of those with felony
convictions should not be excluded from Ohio juries, the Cuyahoga
County courts apparently continued to do so until early 2020. 140

133.
134.
135.
136.
137.
1, 2011).
138.
139.
140.

Id. at ¶ 23, 29.
Id. at ¶ 29.
See Duren, 439 U.S. at 366.
Id. at 367.
Transcript of Trial at 1102–38, State v. Sowell, No. 2011-1921 (Cuyahoga Com. Pl., June
Id.
Id.
Ohio AG Opinion, supra note 12. See discussion supra Part III.A.

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Similarly, Franklin County continues to this day to misinform
potential jurors that if they “have been convicted of a felony that has not
been expunged,” they are “by law. . . ineligible for jury service in Franklin
County.” 141 In addition, as outlined above, the Hamilton County Court of
Common Pleas has repeatedly failed to uphold the rights of those with
felony convictions to serve on juries. 142 Using a standard deviation
analysis, a statistician recently found that the underrepresentation of
African-American jurors summoned or serving on capital trials in
Hamilton County is “statistically significant” and “not the result of
random factors, chance, or luck, but is the result of a systematic process
that underrepresents African Americans” over the course of decades. 143
As a result, the number of “actual capital trials without African American
trial jurors analyzed exceeded the expected number of trials without
African American trial jurors by 4 to 8 times.” 144 Because AfricanAmerican men are disproportionately convicted of felonies, 145 a
systematic exclusion of those with felony convictions is at least one cause
of the underrepresentation of African-American men in jury pools. A
systematic exclusion of those with felony convictions causes systemic
underrepresentation of African-American men, which would satisfy a
prima facie case of a violation of the fair cross section requirement of the
Sixth Amendment.
B.

Fourteenth Amendment Equal Protection.
The very idea of a jury is a body of men composed of the peers or equals
of the person whose rights it is selected or summoned to determine; that
is, of his neighbors, fellows, associates, persons having the same legal
status in society as that which he holds. 146

To establish a violation of the Equal Protection Clause of the
Fourteenth Amendment, a defendant must prove that: (1) the group
alleged to have been wrongly excluded is a distinct group in the
community; (2) the degree of underrepresentation is disproportionate to
the number of the group in the community; and (3) the selection procedure
141. F RANKLIN C TY. C T. C OM. P L., Requests for Disqualification, https://www.fccourts.org/
248/Requests-for-Disqualification [https://perma.cc/EW9M-VXXU].
142. See discussion supra Part III.B.
143. Declaration of Jeffrey O’Neal Martin at ¶ 34, Pickens v. Shoop, No. 1:19-cv-558 (S.D.
Ohio June 11, 2020).
144. Petition for Writ of Habeas Corpus at 178, Pickens v. Shoop, No. 1:19-cv-558 (S.D. Ohio
June 11, 2020).
145. Shannon, supra note 31, at 1810.
146. Strauder v. W. Va., 100 U.S. 303, 308 (1879).

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is subject to abuse. 147 Therefore, unlike a due process challenge, a
defendant may establish a prima facie case without explicitly proving that
the discrimination was caused by systematic exclusion. 148
For an equal protection claim, the only consideration in addition to
those in the previous section is whether a defendant can establish a prima
facie case of intentional discrimination in the selection process. 149 Such a
claim is satisfied if county officials were aware of the issue and neglected
to take action to remedy the discriminatory felon exclusion practice. In
2006, the Ohio Attorney General was asked by a county prosecutor’s
office to provide an advisory opinion on the issue of felon juror
eligibility. 150 In the July 24, 2006, opinion, the Ohio Attorney General
clearly explained that a person convicted of a felony may serve as a juror
after completing probation or community control sanctions. 151 As a result
of this opinion, as well as judicial opinions discussing the relevant law, 152
court officials should have actual and constructive knowledge of what
Ohio law requires. Indeed, it is the job of a court to know and apply the
correct law from the time it becomes effective. Alternatively,
discriminatory intent exists where the substantial underrepresentation has
persisted over a significant period of time, such as the more than 20 years
of exclusion in Cuyahoga County. 153
As noted above, there is no compelling, or even rational,
governmental reason for treating jury eligibility for those with felony
convictions differently from county to county, in violation of state law. 154
Pointing out the constitutional implications of improper jury exclusion
should not be necessary to remedy the situation, given that the Ohio
General Assembly already bestowed jury eligibility to those with felony
convictions who completed any parole or community control sanctions
that may have been imposed. However, constitutional violations may be
necessary for a federal action or habeas relief, for example, should the
state courts fail to offer relief for their own violations. 155
147. Castaneda, 430 U.S. at 494; see Rose v. Mitchell, 443 U.S. 545, 565 (1979).
148. See Duren, 439 U.S. at 370–371 (Rehnquist, J., dissenting).
149. See Gelb, 881 F.2d at 1161.
150. Ohio AG Opinion, supra note 12.
151. Id.
152. See, e.g., Dawson, 2015-Ohio-488, ¶¶ 21–23.
153. Castaneda, 430 U.S. at 495.
154. See Garcia-Dorantes, 801 F.3d at 604 (6th Cir. 2015) (“ [B]ecause the glitch was
inadvertent, no state interest was advanced by the computer error and subsequent underrepresentati o n
of minorities in the jury venire.”).
155. A federal court may entertain a habeas corpus petition filed by a person in state custody
“ only on the ground that he is custody in violation of the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 2254(a).

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V. ST RAT EGIES T O IMPROVE JUROR UNDERREPRESENT AT ION.
A.

Courts and court officers.

If court personnel, judges, and jury commissioners are confused by
the current state of the law, then there is little chance they will correctly
inform the public or implement the law at trial. 156 The Supreme Court of
Ohio Judicial College “[p]rovide[s] a comprehensive program of
continuing education for the judges, acting judges, magistrates, and court
personnel of the state . . . . 157 As part of this education for both judicial
officers and court personnel, the Judicial College should make clear in its
curriculum that a person who has been convicted of a felony is eligible for
jury service upon the completion of any parole or community control
sanctions that may have been imposed. The Chief Justice of the Supreme
Court of Ohio could also create a task force to study the issues across all
counties and help bring local courts into compliance with state law on jury
selection. 158
In addition, a division of the Supreme Court of Ohio—such as the
Office of Court Services—could send a letter or hold a roundtable to make
clear to trial and appellate courts the standards for juror eligibility. 159 In
turn, the local courts should update their websites and other sources of
information—including the summons language—to accurately reflect the
law and include an overview of juror eligibility as part of the training or
education of their own judicial officers and relevant court staff.

156. Under Ohio Revised Code Chapter 2313, jury commissioners are tasked with, among other
responsibilities, compiling the jury source list annually, conducting a drawing of jurors, and—along
with the courts of common pleas—deciding whether a juror may be excused from service. OHIO R EV.
C ODE ANN. §§ 2313.06, 09, 13–14. Commissioners may also “ examine under oath any juror called
for trial as to that person’s qualifications to serve as a juror[,]” id. § 2313.01(B), including whether
“ the person has been convicted of a crime that by law renders the person disqualified to serve on a
jury,” id. § 2313.17(B)(1).
157. Ohio Gov. Jud. R. V(1)(B)(2).
S UP .
C T.,
158. See
Advisory
Committees
and
Task
Forces,
OHIO
https://www.supremecourt.ohio.gov/Boards/committees/
[https://perma.cc/9DKD-2SXN]
(“ Advisory committees provide advice and assistance to the Court and Court staff on topics of general
public interest or emerging issues significant to the law, the legal profession, and the judicial process.
Task forces are formed to review specific issues or topics involving the law, courts, the legal
profession, or the administration of justice. . . . Advisory committees and task forces are created by
the Chief Justice with notice to the Court and operate at the discretion of the Chief Justice. Members
of advisory committees and task forces are appointed by or with approval of the Chief Justice. [T]hey
are comprised of judges, attorneys, clerks of court, other court personnel, and private citizens from
throughout Ohio.”).
159. Office of Court Services, OHIO S UP . C T., http://www.sconet.state.oh.us/JCS/
courtSvcs/default.asp [https://perma.cc/VBF8-4XGZ].

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Since those with felony convictions who appear on jury source lists
are often those who have completed incarceration and re-registered to
vote, courts should start from the presumption that those with felony
convictions who are summoned are eligible to serve. 160 Thus, courts
should assume eligibility unless the person responds that they are still on
parole or under community control sanction—as provided for in the new
summons language on the Cuyahoga County Court of Common Pleas
website—or upon questioning at voir dire.
If such channels are incapable of resolving the confusion, formal
legal action may be required, particularly in light of the constitutional
concerns outlined above. While attorneys can seek redress for defendants
where a court improperly excluded eligible jurors, 161 systemic change
may be better accomplished outside of the confines of a particular trial.
Another possibility is a civil action to ensure that the courts take steps to
provide correct information to those with felony convictions and enforce
the proper standards for juror eligibility. A 2004 lawsuit, for example,
sought to enjoin local boards of elections
from advising ex-offenders that they are ineligible to vote while on
probation, parole, or post release control, and requiring Defendant
Secretary of State to issue notice to all felon ex-offenders in the state
who have been released from prison during the past five years, advising
them that they are eligible to vote if not incarcerated. 162

The suit settled when the boards of elections agreed “to take steps to
ensure that correct information is provided to felons about their right to
vote.” 163 Similar action may be required to protect the right to serve on a
jury for those eligible under state law.
160. OHIO R EV. C ODE ANN. § 2313.06 (West 2020) (“ Annual compilation of jury source list”)
(directing compilations of lists from the board of elections from each county as well as the registrar
of motor vehicles).
161. See, e.g., Petition for Writ of Habeas Corpus at 114, Pickens v. Shoop, No. 1:19-cv-558
(S.D. Ohio June 11, 2020) (“ The trial court deprived Pickens of his rights to an impartial jury, a fair
trial, due process, equal protection, and the right to be free of excessive punishment under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the constitution when it removed prospective jurors
with felony convictions.”).
162. Class Action Complaint, C.U.R.E. Ohio v. Kenneth Blackwell, No. 1:04CV543, 2004 WL
3708731, at *2 (Aug. 17, 2004, S.D. Ohio).
163. The Disenfranchisement of the Re-Enfranchised: Four Years Later, OHIO JUST. & P OL’Y
C TR., at 3 (Sept. 2008). The report also cited a separate suit against the Summit County Board of
Elections. The Board had sent those with felony convictions letters informing them of the revocation
of their right to vote, but not that it was reinstated upon release from incarceration. The District Court
for the Northern District of Ohio required the Board “ to send correction letters to over 1,900 people
who had been potentially misled by the earlier letter.” Id.; see Temporary Restraining Order, Racial
Fairness Project v. Summit Cty. Bd. Elections, No. 5:04-CV-1948 (N.D. Ohio Sept. 28, 2004). If

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Persons with felony convictions.

The Ohio Department of Rehabilitation and Correction (ODRC)
requires that each institutional library and Adult Parole Authority (APA)
Regional Office contains “mandatory information for offender access” on
subjects such as voting rights and “[o]ther verified ‘service’ information
pertaining to reentry preparation.” 164 In contrast, there is no requirement
in the ODRC rules to provide information to released prisoners on their
right to serve on a jury at the conclusion of any imposed parole or
community control sanctions.
The ODRC should provide every released prisoner, either at the time
the prisoner is released from incarceration or at the time he or she is
released from any imposed parole or community control sanctions, with
written notice that his or her right to serve on a jury is restored. It would
be appropriate to convey this information at the same time as any
information about restoration of voting rights or how to register to vote,
since jury source lists are compiled from electors in the county. 165 The
institutions could also place signs throughout prison facilities advising
prisoners, in everyday language, that their jury eligibility is restored at the
conclusion of any parole or community control sanctions. Since the
ODRC and APA are already providing the aforementioned information
pertaining to reentry preparation, there should be low implementation
costs to including information related to jury eligibility as well.
Similarly, APA officers could be required, as part of a final
supervision meeting, to verbally inform ex-offenders at the close of their
community supervision that they are now eligible for jury service and the
importance of that civic responsibility. There is little rationale not to do
so, as the implementation costs here should be similarly low if they exist
at all. In addition, the Correctional Institution Inspection Committee
(CIIC)— a bipartisan legislative committee tasked to “evaluate and assist
the development of programs to improve the condition or operation of
potentially misleading mailings have similarly dissuaded eligible jurors from responding
affirmatively to a summons, similar remedial action may be required.
164. Reentry Resource Center, OHIO DEP ’ T. R EHAB. & C ORR., No. 78-REL-05 (Dec. 1, 2012).
165. OHIO R EV. C ODE ANN. § 2313.06 (West 2020). While ODRC provides information about
voter registration, neither it nor the APA appear to provide voter registration forms as part of release.
As ODRC provides forms for obtaining a social security card, birth certificate, and driver’s license,
it could provide the voter registration form as well, since—unlike for juror eligibility—there is no
requirement that an ex-offender finish parole or community control sanctions before his or her right
to vote is restored. See Inmate Transitional Release Planning, OHIO DEP ’ T. OF R EHAB. & C ORR., No.
78-REL-01 (Feb. 25, 2019); see also The Disenfranchisement of the Re-Enfranchised, P RISON
R EFORM ADVOCACY C TR. (Aug. 2004); The Disenfranchisement of the Re-Enfranchised: Four Years
Later, supra note 168.

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correctional institutions” 166 —could ensure implementation of the ODRC
recommendations mentioned above, including written notice to released
offenders that they are eligible to serve on a jury upon the completion of
any imposed parole or community control sanctions. 167
C.

Attorney education on jury eligibility.

Active attorneys in the State of Ohio must complete 24 hours of
accredited continuing legal education (CLE) activities every two years.168
In addition, attorneys newly admitted to practice in Ohio are required to
complete a minimum of 12 credit hours of New Lawyers Training
instruction. 169 CLE requirements include at least 2.5 credit hours of
instruction on professional conduct topics such as “[a]ccess to justice and
fairness in the courts and how these issues impact public trust and
confidence in the judicial system and the perception of justice in Ohio,”
including “[a]ssuring fairness in matters of race, ethnicity, foreign origin,
religion, gender, sexual orientation, disability, socio-economic status, or
other relevant topics.” 170
As attorneys serve as active participants in any voir dire where a
court is considering juror eligibility for those with felony convictions, it
is imperative that they are properly trained to know and keep the court
informed of the proper law in Ohio. Unfortunately attorneys have not
consistently lived up to this role—for instance, in the Hamilton County
case referenced above where both defense and prosecution counsel
repeatedly agreed that the prospective jurors should be removed for cause
for having prior felony convictions. 171
Accordingly, it is imperative that Ohio CLE trainings focused on trial
practice, particularly on voir dire, accurately address juror qualifications
for those with felony convictions so that attorneys can correct any
misunderstanding at trial and properly select a more representative jury.
In addition, the topic of juror eligibility for those with felony convictions
would also be appropriate for professional conduct trainings on topics
166. OHIO R EV. C ODE ANN. § 103.73(A)(2) (West 2020).
167. See id §§ 103.71–74; The Role of the CIIC, C ORR. INST. INSPECTION C OMM.,
http://www.ciic.state.oh.us/charge/index.html [https://perma.cc/JAQ5-J72J].
168. GOV. B AR R. X § 3(A); see also Continuing Legal Education, OHIO S UP . C T.,
http://supremecourt.ohio.gov/AttySvcs/CLE/default.asp [https://perma.cc/YFL2-QDCG].
169. GOV. B AR R. X § 1(A).
170. Id. § 3(B)(4)(d).
171. See Transcript of Proceedings on Motions, at 250–51, State v. Pickens, No. B-0905088
(Hamilton Com. Pl., Mar. 22, 2010) (defense counsel agreed to the removal of prospective jurors with
felony convictions before voir dire, stating that “ they would be excused anyway so we would agree
they should be excused.”).

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such as “public trust and confidence in the judicial system and the
perception of justice in Ohio” and “[a]ssuring fairness in matters of
race,” 172 given the disproportionate impact of felon exclusion laws on
African-American men, as noted above.
VI. CONCLUSION
Jury service is an integral part of American citizenship and American
criminal justice, both for those convicted of felonies who wish to serve,
as well as for those defendants seeking to preserve their rights to due
process, equal protection, and to be tried before a fair cross section of their
community, as required by the U.S. Constitution. As the Ohio General
Assembly has granted the right to serve on a jury to those convicted of a
felony upon the completion of any imposed parole or community control
sanctions, it is incumbent upon the courts and other legal institutions to
educate ex-offenders, attorneys, judges, court personnel, and other
relevant parties about these rights and responsibilities.
As noted above, there are viable solutions available to address these
concerns, including trainings, updated institutional rules, and potentially
formal legal action. Such actions are necessary to fortify the public trust
and confidence in the judicial system and the perception of justice in Ohio.
In order for the Ohio justice system to retain perceived legitimacy
regarding juror selection, it must at minimum ensure that existing laws on
juror eligibility are properly understood and enforced—a requirement it
has so far failed to meet with any consistency.

172.

GOV. B AR R. X § 3(B)(4)(d).

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