Including Noncitizens in the Venire

In a forthcoming article being published by the American Sociological Association entitled, “Citizenship and Punishment: The Salience of National Membership in U.S. Criminal Courts,” researchers found that non-citizens are not afforded the same legal treatment in U.S.courts.  The study suggests juries to tend to convict non-citizens at a much higher rate.  It found that by “analyzing U.S. federal district court data from 1992-2008 for this study [that] [i]n 2008…96 percent of convicted non-citizens received a prison sentence, compared to 85 percent of U.S. citizens.”  In addition, the authors write that “the group threat perspective … suggests dominant group members feel threatened economically, politically, criminally, or culturally, and will stepup efforts to maintain social control when minority group populations are increasing.” 

Although the author's conclusion may be farfetched, one solution to this problem may be to allow non-citizens to be part of the jury pool.  The idea of allowing noncitizen jurors partake in jury duty is not a new one.  The British used the “jury of the half tongue” for nearly 500 years.  In this system “[w]hen the defendant was a foreign citizen,he was entitled to a jury composed half of Englishmen and half of foreigners (the foreigners could be of any nationality, not necessarily the nationality of the accused). This body was called the jury de medietate (‘of the half tongue’).”  It was in fact used in the United States as well, when “[e]arly settlers in the northeastern United States brought the system with them from England, requiring that Native Americans make up half the jurors in cases against Native American defendants.”

More recently, last year, Governor Jerry Brown of California vetoed a bill that would have given non-citizens the right to partake in jury duty.  One argument against this was that it would de-incentivize non-citizens to become U.S. citizens.  Governor Jerry Brown was quoted as saying “Jury service, like voting, is quintessentially a prerogative and responsibility of citizenship.”  The argument is that the right to vote as well as the right to a jury is right only for U.S. citizens.  However, “indeed until the early twentieth century, noncitizens routinely enjoyed the right to vote as a matter of state and local law.” Although the U.S. constitution limits “citizens of the right against discriminatory denial of the vote does not mean that noncitizens cannot vote.  If a state or locality chooses to enfranchise its noncitizen residents, it may do so.”

As such, giving such rights to noncitizens is not without precedent.  Although as the study suggests that citizens tend to convict noncitizens at a higher rate, another way to mitigate the situation is to allow legal permanent residents or “green card holders” to join juries.  In 2011, it was estimated that there were about 13.1 million LPRs in the United States.    The main principle that backs the American jury system stems from the principle of having our trials be adjudicated by a jury of our peers.  The Supreme Court has stated that “juries as instruments of public justice…[should] be a body truly representative of the community.”  If we truly espoused to live up to this principle, it might be high time to allow LPRs to participate in jury duty.