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California

Ben Boychuk
Jury Tampering
Ill-conceived California legislation would let noncitizens serve on juries.
10 May 2013

Along with paying taxes, jury duty remains one of the few genuine obligations, or impositions, of American citizenship. In California, a Fremont Democrat is pushing a bill that would extend eligibility for jury duty to noncitizens—not on the theory that misery loves company but in the belief that serving on a panel of jurors is an excellent way to assimilate immigrants into American society. It’s a bad idea backed by flimsy reasoning, but one that so far has faced no effective opposition in the state legislature. Bob Wieckowski’s Assembly Bill 1401 passed the assembly last month and is now winding through committee in the state senate.

AB 1401 would drop “lawfully present immigrants” from the list of people currently excluded from jury lists, which is derived primarily from Department of Motor Vehicle records and voter-registration rolls. Wieckowski’s legislation wouldn’t change other jury-eligibility criteria, like English proficiency and a minimum age of 18. And his bill would only affect California state courts; federal juries in Los Angeles and San Francisco, for example, would still require jurors to be U.S. citizens.

Wieckowski justifies the bill on practical grounds, arguing that green card–holding immigrants would broaden the pool of potential jurors. But California’s courts don’t want for would-be jurors. According to the Judicial Council of California, about 10 million Californians are summoned for jury duty each year. Roughly 4 million are eligible and available to serve (most others wind up dismissed for health problems or job conflicts). And of those 4 million, fewer than 200,000 ever get empaneled in a jury box. The Judicial Council reports that the Golden State held 10,110 jury trials during the 2010 and 2011 fiscal years—the highest volume of such trials in the country by far—though that number has declined since the mid-2000s.

Every county handles its trials and jury-pool selection somewhat differently, but the state has adopted a “one-day or one-trial” system. Generally, if summoned for jury duty in California, you show up at the appointed time on the appointed date, check in, and wait around. If you’re lucky—and in my recent experience, a great many people are—you’ll be excused and home in time for lunch. If you do get selected for jury duty, most trials tend to last a week or less. High-profile cases such as the O. J. Simpson and Menendez Brothers trials are exceptions, not the rule.

California judges and attorneys aren’t complaining about a dearth of qualified jurors. They’re more concerned with tight budgets, vacancies on the bench, and scarce courtroom space, all of which have made getting a speedy trial more of a challenge in recent years. California Supreme Court Chief Justice Tani Cantil-Sakauye surveyed the landscape recently at a forum sponsored by the Public Policy Institute of California. “In the last five years, $1 billion has been taken from the judicial branch,” she explained. “According to the latest proposed budget, it looks like the judicial branch will receive one penny of every dollar of the general fund, which is an incredible bargain for what we provide. So we do that without raises and without broadening our scope and without more judges. All the while our caseload remains the same. We continue to provide a forum for justice on an ever-shrinking, minuscule slice of the pie.”

While the need for more jurors is dubious, AB 1401’s supporters have also appealed to history and democratic fairness. Wieckowski and several of his fellow Democrats argued before the assembly’s vote last month that U.S. citizenship isn’t a requirement for membership in the state bar or for serving in the military. And in fact, they pointed out, citizenship wasn’t always a requirement for jury service, either. In the Founding era, for example, jurors only needed to be property-owning white males, a qualification that included many newcomers but excluded many citizens.

Though formal citizenship and jury service haven’t always been linked historically, jury service has long been seen “as a form of civic participation and values,” argues Andrew Guthrie Ferguson, author of Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action. Ferguson teaches constitutional law at the University of the District of Columbia and is probably the nation’s leading expert on the political philosophy of jury service, which few Americans have given much thought to, beyond grousing over their jury summonses. Discussing jury service generally, Ferguson argues that it is “the closest an American can come to connecting to the principles of the Constitution.” When I first contacted Ferguson two weeks ago, he took a sympathetic view of AB 1401. “I think opening jury service to all those connected to a community is an important innovation that recognizes the teaching value of jury service,” he told me. “Alexis de Tocqueville likened jury service to a free public school always open to teach the skills needed for a democracy. For those non-citizens who want to prove their worth as citizens, this seems like a good way to teach the values of citizenship. It also reaffirms the community nature of juries.” But, Ferguson added, these were only his initial impressions.

The problem with putting noncitizens on juries is that it essentially puts the cart before the horse. Jury service should not be a “learning experience” or an “experiment,” but rather an exercise of solemn responsibility by fully integrated citizens. Thomas Jefferson made the most compelling argument against schemes such as Wieckowski’s in Notes on the State of Virginia. It takes a long time, Jefferson said, to acquire the habits and manners of a free citizen—and to relinquish those acquired under corrupt or tyrannical governments.

“The most important thing is that legal aliens will not sufficiently understand the intricacies of the rule of law, especially due process and equal protection,” says Edward J. Erler, a professor of political science at California State University, San Bernardino, and a former member of California’s Constitutional Revision Commission. “These things are unique to the United States and they are complicated. It takes years to begin to understand these apparently simple, but extraordinarily complex legal concepts, and no legal immigrant will have had experience of this in his previous country. The idea that legal immigrants can learn to become citizens through jury service is a dangerous experiment on the liberties of American citizens.” Erler’s larger point—echoed faintly by the handful of legislative Republicans who opposed Wieckowski’s bill—is that assimilation doesn’t happen by osmosis or mere happenstance, and it certainly doesn’t happen in a jury box.

In the intervening weeks, Ferguson and I continued to exchange friendly e-mails in an effort to work through some principled differences of opinion. This week, he published an article at The Atlantic’s website arguing against AB 1401. “One cannot outsource the responsibility of self-government, including jury duty,” he writes. “Those who have been entrusted with the responsibility to govern must do the hard work of self-government.” Ferguson is clearly intellectually serious and sympathetic to the nuances of the debate, but Sacramento Democrats have essentially accused AB 1401 foes of xenophobia. Said L.A. Democrat and assembly speaker John Pérez: “What I think is problematic is that some people hear about something new for a group of immigrants and immediately think there must be something wrong.”

No, what’s wrong here is the legislature’s cavalier attitude toward the duties of citizenship. Making American citizens takes time; assimilation shouldn’t be an afterthought.

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