So Loudoun Commonwealth’s Attorney Jim Plowman began asking for the list of those eligible for restoration, so that prosecutors could check it against the list of potential jurors in each criminal case.
“It’s insulting to victims,” Plowman said, “especially in very sensitive cases, to have someone who has committed that crime sit in judgment of the person who has wronged you. I don’t think it’s fair for a child victim if I’ve got a sex offender sitting on the jury.” In the month since McAuliffe restored the felons’ rights, about 5,000 have registered to vote, the governor’s office said.
McAuliffe’s staff have repeatedly refused to release to Plowman the list of those whose rights are restored, most recently rejecting his Freedom of Information request by saying the names are excluded as “working papers” of the governor. A spokesman for the governor said Plowman’s request was a political ploy by Republican prosecutors to embarrass McAuliffe — and that prosecutors have the means to vet potential jurors. Separately, Republican legislators are seeking to have McAuliffe’s executive order invalidated by the Virginia Supreme Court.
Brian Coy, the governor’s spokesman, and other experts noted that convicted felons have always been able to get their rights restored in Virginia, that Republican Gov. Robert F. McDonnell speeded up the process, and now McAuliffe has broadened it further. Now, a felon’s rights are automatically restored after they complete their parole or supervised probation, and once they register to vote, they become eligible for jury duty. A defense lawyer in Dinwiddie County, representing a man charged with killing a state trooper, recently asked a judge to reopen the jury process to incorporate those whose rights McAuliffe restored in his April 22 executive order.
In addition, Coy and others pointed out that prosecutors can always check the backgrounds of jurors through state and national databases, that jury questionnaires typically ask if someone has a felony conviction, and that the voir dire process can be used to detect felons. Plowman and other prosecutors responded that having a felon on a jury doesn’t automatically mean they are legally biased, and so they would have to use peremptory strikes that would otherwise be used on biased jurors.
Coy said the request for the list amounts to “ Republicans sifting through the dirt and demagoguing people. It is not about public safety. Any prosecutor can contact the governor’s office and we’ll be helpful. They have an entire [state] police department available to them. Mr. Plowman just wants these individuals identified by their crimes for the rest of their lives.”
McAuliffe’s order to restore felons’ rights was part of sweeping changes sought by justice reformers who feel the United States employs mass incarceration and overly punitive sentencing. “Once you’ve served your time and you’ve finished up your supervised parole,” McAuliffe said last month, “I want you back as a full citizen of the commonwealth. I want you to have a job, I want you paying taxes, and you can’t be a second-class citizen,” which some advocates say is how the system treats ex-convicts.
In 38 states and Washington, D.C., most felons automatically gain the right to vote when they complete their sentence, according to the National Conference of State Legislators, which in turn enables them to serve on juries. Only three states permanently revoke voting rights for people with prior felony convictions.
“In most if not all states” which restore felons’ rights, said Julie Ebenstein of the Voting Rights Project of the American Civil Liberties Union, “I don’t think it’s come up that there needs to be some way of providing eligible voter lists to prosecutors. It’s a bit redundant when they already ask about an individual’s history in voir dire. The request for the list seems like a solution in search of a problem.”
Rusty McGuire, the commonwealth’s attorney in Louisa County, said he and his assistants don’t have time to run the backgrounds of every potential juror, and “I’d like to have an idea who’s potentially going to serve on jury duty.” He noted that before McAuliffe’s order, felons had to apply and be individually reviewed before having their rights restored. “When McAuliffe took over,” McGuire said, “it went from validating them to a rubber stamp, with no due diligence.”
Jim Fisher, the Fauquier County prosecutor and a member of the state commonwealth attorneys’ council, said, “the total felon universe is too large and our resources too little to investigate every felon who may end up on a jury.” He said McAuliffe’s blanket restoration did not consider “whether a person has truly paid their debt to society or whether they actually continue to be a menace to society. Now we have to work locally to try to control the damage to the justice system.”
Fisher said in his county of 70,000, his staff had identified 663 total felons convicted of homicide, child sex abuse, rape or robbery-related offenses since 1980. “Now we have to painstakingly run the names through the [state] database one at a time to see if they are ‘restored,'” Fisher said. He noted that prosecutors only get four peremptory strikes at trial, and if they must be used on convicted felons, that “ignores others who may also have a bias against the police or prosecution.”
No one has really studied the impact of restored felons on the trial process, according to Dan Mears, a professor of criminology at Florida State University and specialist in prisoner reentry and criminal justice reform. “How often do these people actually serve?” Mears asked. Presuming that “being a convicted felon means they’re going to go light on an offender” is not necessarily true, Mears said.”It seems constitutionally questionable that someone could just assume something about a group,” he said.
Plowman said he did not oppose restoration of rights to all felons, but he also noted that many of those restored by McAuliffe “have not paid their debt to society. Many have not paid their fines or often have not made restitution to victims.” He also said those on “unsupervised probation” still face possible prison time if they violate probation, yet also were restored by McAuliffe.
Plowman said he was not motivated by politics, and said he offered to keep the list for use by prosecutor’s offices only. He said he was not presuming bias by restored felons, but “certainly it’s a significant factor I’m going to consider” in jury selection. “I would assume there’s a greater chance that someone convicted of a major crime would be more sympathetic to someone on trial for a major crime, than someone who has not.” He noted that in the pending murder trial of Ashburn business owner Braulio Castillo, 300 potential jurors were summoned and his prosecutors did not have time to check the backgrounds of all of them.
Not every prosecutor felt the list was necessary. Shannon Taylor, the commonwealth’s attorney in Henrico County, said she checked with the Henrico registrar and judges, and found that a questionnaire asking potential jurors about felony convictions was still in place and the jury pool was already set for this year. She said Henrico would continue to do that, and “while I appreciate my colleagues’ concerns…we maintain our current ability to learn some information about our jurors and the judges will follow the law to allow any particular questions that may be relevant during the jury selection.”
Coy said, “Nothing about the jury selection process has changed as a result of the governor’s order. Jury commissioners, judges, prosecutors and defenders have the same opportunity to keep people who are unqualified or incapable of impartiality from serving as jurors.” He noted that the governor’s office provides the General Assembly an annual list of those whose rights are restored, and would do so again next year.