California's Consideration of Jury Duty for Noncitizens

California’s governor vetoed a bill that would allow noncitizens to serve on juries. But the idea isn't likely to go away.

California’s legislature passed a ground-breaking bill in 2013 to allow immigrants with green cards to sit on juries. But Governor Jerry Brown broke with fellow Democrats and vetoed the bill. It would have been an historic expansion of the civic duty of service on juries and, despite the veto, could stand as a model to other states to do likewise.

The Bill and Its Context

In late August 2013, the California Assembly passed a bill that would extend jury duty to the 3.5 million legal permanent residents in the state. In a terse statement accompanying his veto, Governor Jerry Brown  referred to jury duty as “quintessentially a prerogative and responsibility of citizenship.” As such, he said he did not believe it was “right” to extend jury service to noncitizens.

Shortly before vetoing the jury duty bill, Governor Brown signed a number a laws extending an array of civic rights to legal immigrants, including laws allowing legal permanent residents to work at polling stations and allowing undocumented immigrants to obtain driver’s licenses, and prohibiting police officers from detaining undocumented immigrants or transferring them to federal authorities except when arrested for serious crimes.

Supreme Court Decisions on Jury Service

Jury service is an element of the civil rights of both the parties involved in the case to be tried and of the jurors themselves.  In 1935, in the case of  Norris v. Alexander, the U.S. Supreme Court first ruled that systematic exclusion of African-Americans from juries violated the Constitution.  This decision failed to prevent race-based exclusions and  the Court ruled in 1985  that lawyers could not base challenges to jurors on race.In 1994, the Supreme Court ruled that lawyers cannot rely on gender in exercising challenges to jurors.

In issuing these decisions, the Supreme Court reaffirmed that, just as an impartial jury of one’s peers is the right of a party whose case is being tried, serving on a jury is a constitutional right of the prospective jurors. Jury duty is one of the fundamental elements of democracy as envisioned by the drafters of the Constitution. Denying access to that duty to a class of people implies that the group is inherently incapable of impartiality. The Supreme Court emphasized the discriminatory effect of this broad-brushed suspicion against a whole class of people in its landmark juror exclusion decisions. (You can learn more about the process of jury selection by reading "How Lawyers Choose Juries.")

Arguments in Favor of Allowing Noncitizens to Serve on Juries

Proponents of extending jury service to noncitizens noted that legal residents enjoy the protection and convenience of the law, so it is only reasonable to require them to perform the civic duty of sitting on a jury. And, noncitizens can sue and be sued and can be tried for crimes under the law. Thus, it is only right that any jury pool include their peers, proponents contended.

More practically, many jurisdictions have difficulty finding eligible people willing and able to serve on juries. The proposed California law would have significantly expanded the pool of prospective jurors in some of the state’s cities and counties, which would make empanelling a jury easier. This, in turn, would benefit anyone involved in a trial in the jurisdiction, according to supporters. They argued that delay in trials due to the difficulty in finding enough qualified and available jurors harms the interests of civil litigants and may deprive criminal defendants of speedy trials.

Proponents also argued that a jury cannot truly be made up of one’s peers if it excludes a large population (such as noncitizens) in the community. Substantial percentages of the residents of many communities in California are legal permanent residents.

Arguments Against Allowing Noncitizens to Serve on Juries

Governor Brown echoed one of the arguments made by opponents of the bill: Jury service is a duty that has traditionally been open only to citizens. Some opponents contended that noncitizens who come from cultures that do not have a jury trial system would be unprepared to participate in jury service here. Opponents also argued that jury duty should be restricted to those who have the legal capacity to participate in the enacting of laws (through voting). Only citizens can vote; therefore, only citizens should sit on juries, goes the argument.

Some opponents also argued that granting noncitizens the right to serve on juries may open the door to extending other traditionally citizen-only rights to them, including the right to vote.

An Inevitable Change?

Forecasts of the demographic make-up of the U.S. show an increasing percentage of our fellow residents will be recent immigrants (legal and undocumented). At some point, the sheer number of such residents may compel expansion of jury duty and other rights. This is really not such a radical development: Ours is a country whose constitutional, legal, and political foundation was constructed almost entirely by immigrants.  They  have always been us and our peers.

As for California,  the bill’s proponent has pledged to take the matter up again. The author said he did not plan to seek to override the governor’s veto, but confirmed that he would offer a similar bill next year. So, this is not a dead issue in California. Other states may follow California’s lead and enact laws allowing noncitizens to serve on juries.

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