California May Extend Jury Duty to Noncitizens

Once again on the cutting edge of expanding legal rights, California may soon become the first state to allow immigrants with green cards to sit on juries. It would be a historic expansion of the civic duty and could stand as a model to other states to do likewise.

The Bill

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. That bill is on Governor Jerry Brown’s desk, unsigned as of this writing. Watch this site for an update when Governor Brown makes his decision to sign or veto.

In what may be an indication of his support for the jury duty measure, Governor Brown signed another law a day after the Assembly passed the jury duty bill, which allows legal permanent residents to work at polling stations where they will assist voters and offer translation services.

Legal permanent resident

The term “legal permanent resident” refers to a person who is not a U.S. citizen but who has obtained the legal right to permanently reside in the country. This status, often referred to as being someone with a “green card,” allows the holder to remain in the U.S. indefinitely without fear of deportation by immigration authorities.

Historical significance

Jury service is a civil right of each private, non-governmental party involved in a case that goes to trial, and it's a right of the jurors themselves. In 1935, 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, however, 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.

For more information about jury selection, see How Lawyers Choose Juries.

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.

Arguments in Favor

Proponents note 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 contend.

More practically, many jurisdictions have difficulty finding eligible people willing and able to serve on juries. The proposed California law would significantly expand 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 argue that trial delays 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 argue 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

Opponents to the extension of jury service to legal permanent residents argue this duty has traditionally been open only to citizens. Some opponents contend 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 argue 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 have 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.