Should Non-Citizens Be Allowed to Serve on Juries?

The sixth amendment of the US Constitution guarantees Americans charged with a crime that they will be tried by an "impartial jury." Over the years the US Supreme Court has interpreted this to mean a fair cross-section of the community and, in particular, that distinctive or "cognizable" groups must be adequately represented. These are groups that you are essentially born into--race/ethnic groups, and gender--rather than groups that you might move in and out of, such as age groups or income level groups. These are clearly demographic questions and over the years I have been involved in more than a hundred criminal cases as an expert witness examining whether juries in a particular court are, in fact, demographically representative of the community. Throughout the history of the nation, eligibility to serve on a jury has been restricted to two demographic groups--adults (now 18 and older) and citizens. This doesn't mean, of course, that you have to show your birth certificate or naturalization form to serve on a jury. Most states merge Department of Motor Vehicle (DMV) records with Registrar of Voters (ROV) lists, and then purge the duplicates, in order to have a list of people to whom a jury summons will be sent. The logic behind this is that not every citizen is a registered voter so you want to be more inclusive. But, of course, not every registered driver is a citizen and courts rely on people checking the box about citizenship to report that they are not a citizen and thus are not eligible to serve. 

Into this historical tradition has come a call for change. A few days ago the State Senate in California approved a bill previously passed by the State Assembly that would allow non-citizens (albeit legal immigrants) to serve on juries in California. The bill now sits on Governor Brown's desk awaiting his signature or veto. If he signs the bill, California will become the first state in the nation to allow this. A story in the Huffington Post seemed generally negative about the merits of doing this:

“Gov. Jerry Brown should veto the bill,” the Sacramento Bee wrote in an editorial. “Like voting or holding public office, jury duty is one of the ways that citizens share in the governance of our democratic republic.”

George Skelton echoed the sentiment in a column published Wednesday by the Los Angles Times. “After all, you must be a citizen to be eligible to serve in the Legislature and write the laws,” Skelton wrote. “You have to be a citizen to be a governor who signs the laws. And you have to be a citizen to vote and elect the lawmakers. It seems incongruous to allow noncitizens to determine whether a defendant has broken a law.”

I think that my sympathies lie with the Sacramento Bee and the LA Times writers on this issue. Selfishly, if there were more people in the potential pool of jurors, maybe my name wouldn't come up so often. I have served on juries and it is fascinating, but it can be time-consuming. On the other hand, I think that people should have an incentive to become citizens, and giving them a key benefit of citizenship without requiring citizenship just somehow doesn't feel right.