Allowing noncitizens who are legal immigrants to serve on juries is a desirable reform in a society devoted to judgment by one's peers and juries that represent a cross-section of the community. Assembly Bill 1401, passed overwhelmingly by the California Assembly, would do just this, permitting legal immigrants, as well as U.S. citizens, to serve on juries.
The Assembly Committee on the Judiciary highlighted the laudable goals behind the expansion of eligibility for jury service: "jury service is understood to be a democratizing force and a societal obligation."
Importantly, AB 1401 would extend jury service eligibility only to "lawful permanent residents," a legal term of art referring to immigrants lawfully admitted to the United States who under the U.S. immigration laws generally possess the right to remain indefinitely, if not permanently, in the United States. The bill would not allow temporary visitors or undocumented immigrants to serve on juries.
Nothing in the state or federal constitutions prohibits noncitizen service on juries, or, for that matter, being lawyers or even judges. Nor, despite the cries of opponents, are noncitizen jurors unprecedented. Indeed, there was a long tradition in England, from where the United States imported its right to trial by jury, of allowing noncitizens to serve on juries.
For close to 700 years, the English justice system permitted the jury de medietate linguae ("jury of the half tongue"), also known as mixed juries. To ensure fair treatment of a minority by the majority, noncitizen litigants had the right to request that half of the jury consist of noncitizens. English colonists brought the mixed jury to America. Trial by mixed juries for a time was the practice in the colonies and, after the revolution, the United States.
The legally enshrined ideal, and constitutional requirement, is for American juries to be pulled from a cross-section of the community. Immigrants unquestionably are part of communities throughout California. Some counties, including but not limited to Los Angeles (18.6 percent), Orange (15.3 percent), and San Francisco (14.7 percent), have large immigrant populations. These residents pay taxes and live and work in the community and serve in the military; many have children who are United States citizens. Immigrants are subject to the laws just like U.S. citizens, but play no role in resolving legal disputes.
Similar to the revolutionary battle cry of "no taxation without representation," unrepresentative juries render judgments that are less legitimate than more representative juries in the eyes of minorities. History teaches that the "all-white jury" convicting an African American defendant is presumptively illegitimate. Historically, minorities and women were barred from jury service, which today is condemned and discriminatory and wrong. One can only wonder whether some of the opposition to the expansion of jury eligibility is due to racial anxieties and anti-immigrant sentiments that too long have been part of this country's fabric.
Nor does AB 1401 eliminate any of the other eligibility requirements for jury service, requirements that help ensure that jurors embrace community values. English language proficiency, for example, remains a requirement to serve on a jury. It alone is likely to result in immigrant jurors who are the most assimilated of all immigrants into American culture and values. In addition, all jurors must be domiciled in California and residents of the county in which they would serve, again contributing to the likelihood that they represent the values of the community. Moreover, a felony conviction disqualifies any person immigrant and U.S. citizen alike from jury service.
Opponents of AB 1401 assert that U.S. citizenship is somehow the equivalent of knowledge of the American legal system or of embracing American values. There is no basis for this assumption. In fact, passing a test about civics or the law or the Constitution is not required of any citizen as a prerequisite for jury service. Some citizens have basic knowledge in these areas, while some don't. Undoubtedly the same will be true of noncitizens serving as jurors. Noncitizens work in this country, abide by its laws, and have by their actions shown appreciation of the freedom and liberty that is uniquely American. There is no reason to assume that they are less knowledgeable about or less committed to the system than United States citizens.
There is no doubt whatsoever that it is constitutional for the state to have noncitizens serve on juries. It is highly desirable because expanding juror eligibility to lawful permanent residents would make juries look more like the communities for which they serve and more legitimate to immigrant communities and more true to American democratic ideals.
Kevin R. Johnson is dean at the University of California, Davis, School of Law. Erwin Chemerinsky is dean of the University of California, Irvine, School of Law.