In all the years I’ve practiced criminal law, no one has ever called me because they want to be on a jury. Sure, I’ve gotten tons of calls from people who got called for jury service and want out, to which I give my talk about the importance of jury duty and how it might be an unpleasant use of time, but it’s critical that good people be willing to serve. They suddenly have something better to do with their time than talk to me on the phone. Go figure.

California has proposed a new law to eliminate the prohibition of people with felony convictions from serving on a jury, as if they don’t already have enough problems.

The legislation will restore the right to serve on a jury for people convicted of felonies who are not serving time in prison, on parole or under supervision beginning Jan. 1. But it excludes people who register as a sex offender because of a felony conviction.

Note in passing how the law excludes sex offenders, for whom no rational distinction exists except that sex offenders are now the most despised criminals and thus to be shunned in perpetuity, having learned nothing for the last ten times we let irrational feelings of disgust subsume legal reason.

Proponents of the legislation say the change will allow the disproportionate number of black people who have been convicted of felonies to serve on juries.

The aspirational law is intended to put more black people in the jury pool and, by extension, more black people on the jury, so when black defendants are tried, they will be tried by juries with more black people on them. That’s the theory, anyway.

Boudin called the legislation a “significant step” toward ending racial disparities in the criminal justice system.

“Up to now, California law bars anyone with a felony conviction from serving on a jury,” Boudin said. “This disproportionately silenced people of color and prevented many people from being tried by a jury of their peers — a fundamental pillar of our justice system.”

Sounds nice, even if the word “disproportionate” fudges the line to create the illusion that only blacks get arrested, convicted, imprisoned, and that’s the experience most black people endure. None of this is accurate, but “disproportionate” conceals a great many details that keep black people off juries without regard to any felony conviction.

Even so, end the automatic preclusion of felons (or “persons formerly convicted of a felony,” for those who prefer euphemisms that add needless words under the belief that it humanizes people, as if nobody knows what they’re talking about) and the chances of it turning out the way Chesa suggests, that black people will be tried by black people, is highly unlikely. Since Chesa was a public defender, he presumably knows better, but now that he’s an official progressive DA, he has to say official progressive DA stuff.

First, even though a felony won’t be an automatic preclusion, their feelings toward cops, the prosecution and prison will still be questioned and, to a large degree, suffice to have them removed for cause. There aren’t a lot of felons with warm and fuzzy feelings toward the system, with good reason, but still.

Second, if a felon manages to thread the needle and not get bumped for cause, they’re as likely to be struck by the prosecutor using peremptory challenges, just as the defense is going to strike the wife of a cop. This is, perhaps, the greatest utility of the new law, as it will eat up the prosecution’s peremptory challenges.

And that, as my old buddy Elie Mystal notes, is the real problem hiding behind this social justice feel-good law.

Just, don’t tell me you’re doing this to get “black” people on juries. That’s not the point here. Yes, incarceration disproportionately affects African-American communities. Yes, refusing to restore the rights of ex-cons disproportionately affects African-American communities. Yes, the restoration of rights are withheld because those most affected are disproportionately black and brown. All of that is true.

Listen, fellow do-gooders, the reason African-American defendants cannot get a jury of their peers is because prosecutors use their peremptory challenges to exclude all the black jurors. Do not act, even in your zeal to make this important change, like you can’t get a diverse jury in San Fran Freaking Cisco because all the black people are in jail or just out of lock-up. You can’t get a fair jury because prosecutors exclude fairness.

There are plenty of black people out there who aren’t felons, although when the venire is pulled from official government rolls, like voter registration or drivers license, you inexplicably end up with a disproportionately low turnout of black people in the jury pool. And then there are the people who just don’t show up when called for jury duty, about which there’s little more to say.

But Elie is right that the problem isn’t felony convictions, but strikes. Prosecutors strike black people for pretextual reasons to get around Batson, but the real reason is fairly straightforward: black people’s experience with the police tends to range from extremely unpleasant to outrageously horrific. They’re not going to love the prosecution’s cops as much as white people, and that’s not good for getting convictions. So off they go.

Elie’s solution is to eliminate peremptory challenges, which is something only a person who has never tried a criminal case could believe isn’t completely nuts.

This is your problem, California. It’s not that felons aren’t allowed on juries, it’s that black people aren’t allowed on juries if the prosecutor has a modicum of creativity when inventing a reason to exclude them. And if California prosecutors are already good at excluding NON-CRIMINAL black people from juries, you can imagine the field day they’re going to have with a potential juror with a rap sheet.

What Elie misses is that each side only gets a certain number of peremptories, and so the prosecution will be constrained to use them to strike felons, meaning they won’t have as many to strike “NON-CRIMINAL black people” from the jury. No, felons aren’t likely to sit on juries, but more black people might, and if that’s what this law accomplishes, it beats what’s happening now.

Then again, if the defendant is charged with a sex offense, he’s out of luck, since not even the wokiest of do-gooders gives a hoot about his having a jury of his peers. Their sensitive bleeding hearts only go so far, and social justice may favor racial solutions but it still needs to have some defendant to hate.