The American jury: can noncitizens still be excluded?

• Author: Motomura, Amy R.

Though noncitizens can be, and frequently are, judged by juries, they are categorically excluded from serving on them. In this Note, I explore the implications of this exclusion from demographic, functional, and doctrinal perspectives. The demographic portrait of noncitizens and minorities in the United States shows that the citizenship requirement for jury service results in the exclusion of significant numbers of residents in certain regions, and that this exclusion is highly skewed by race and ethnicity. The exclusion and resulting decrease injury diversity has potentially negative effects on the jury's decisionmaking and its institutional legitimacy, and it excludes many residents who may be integrated into the community for many other purposes. Doctrinally, the exclusion of non-citizens from the jury might be challenged as unconstitutional on several grounds. Although some of the constitutional arguments are unlikely to be persuasive to the courts, I argue that there is room under the current doctrine for claims based on rights of the party before the jury--either under equal protection or the fair cross-section requirement of the Sixth Amendment--to succeed if properly framed.

INTRODUCTION I. THE DEMOGRAPHICS OF NONCITIZENSHIP II. THE EFFECT OF THE CITIZENSHIP REQUIREMENT ON JURY TRIALS A. Jury as Decisionmaker 1. Nonminority citizen parties 2. Noncitizen parties 3. Minority parties B. Jury as Civic Institution III. LEGAL CHALLENGES TO THE CITIZENSHIP REQUIREMENT A. The Citizenship Requirement Is Not Constitutionally Compelled B. Challenges to the Citizenship Requirement as Excluding on the Basis of Citizenship 1. Rights of potential jurors 2. Rights of parties injury trials a. Equal protection b. Fair cross-section C. Challenges to the Citizenship Requirement as a Proxy for Racial or Ethnic Exclusion 1. Rights of potential jurors 2. Rights of parties injury trials a. Equal protection b. Fair cross-section IV. REMEDYING A VIOLATION CONCLUSION APPENDIX INTRODUCTION

In the United States, all jurors must be U.S. citizens. (1) Although this requirement is often overlooked or accepted as inevitable--indeed, a jury is often referred to as a "citizen jury"--it has implications that merit analysis. The citizenship requirement has received little scholarly attention, and then only with limited scope. (2) The Supreme Court has mentioned the requirement in passing, stating in dictum that states may require jurors to be citizens, but in a case that did not present the issue, and at a time before the United States underwent major demographic changes. (3) In the four decades since that decision, the noncitizen population has increased dramatically, now making up a significant percentage of the total population. (4) Because this increase has been more pronounced in some regions than others, (5) in many communities a large proportion of the population is excluded from jury service. Moreover, because noncitizen status is strongly skewed by race and ethnicity, juries in these communities are likely to be unrepresentative in these respects of the community as a whole. As demographics continue to shift in the United States, the effects of excluding noncitizens may become more pronounced in different jurisdictions at various times.

This Note first explores in Part I the demographic portrait of noncitizens in the United States through an analysis of data from the American Community Survey (ACS). (6) The data show that in many areas, the citizenship requirement results in the exclusion of significant portions of the overall population, and of certain ethnic and racial groups, from the jury pool. Part II discusses the effects of this exclusion on two core functions of the jury: its role as a decisionmaker and its role as a civic institution. Part III discusses possible legal challenges to the citizenship requirement. These challenges may focus on the rights of noncitizens excluded from the jury, or they may focus on the rights of parties before the jury. They may also challenge the exclusion of noncitizens as such, or they may challenge the resulting disproportionate exclusion of certain racial or ethnic groups. Of these challenges, I argue that the most persuasive are claims that the exclusion of noncitizens from state juries violates the equal protection rights of noncitizen parties in cases before those juries, and claims that the disproportionate exclusion of minorities from both state and federal juries violates the Sixth Amendment rights of criminal defendants in some jurisdictions. Part IV briefly addresses some considerations in remedying any violations. The appropriate remedy would vary with the type of violation found, but I outline the general form of statutory amendments that might be made in each situation. Finally, I address the practical limitations of any remedies. (7)

1. THE DEMOGRAPHICS OFNONCITIZENSHIP

   The United States is often described as a nation of immigrants, (8) and indeed, noncitizens make up a significant proportion of its population. In the period from 2005-2009, noncitizens made up 7.2% of the total U.S. population, and 8.6% of adults. (9) Because the distribution of noncitizens is highly nonuniform across the United States, in some areas, the percentage of noncitizens is far higher. Figure 1 below illustrates the percentage of noncitizens among adult residents by state for the same period. California had the highest percentage of noncitizens--15% of the total population and 18% of adults. (10) Among U.S. counties, approximately 18% had adult noncitizen populations comprising over 5% of the total adult population, and approximately 7% had adult noncitizen populations comprising over 10%. (11) In California, however, approximately 59% of counties had adult noncitizen populations over 10%, 41% had adult noncitizen populations over 15%, and 12% had adult noncitizen populations over 20%. (12) Though states like California may be atypical today, trends suggest that similar demographics may be evident in other parts of the country in the future. (13)

   [FIGURE 1 OMITTED] (14)

   In regions where noncitizens make up a large proportion of the population, the citizenship requirement does more than significantly decrease the percentage of residents eligible to serve on juries. Because noncitizen status is highly correlated with race and ethnicity, the requirement skews the racial and ethnic composition of jury pools. Amongst the most populous racial and ethnic groups in the United States, (15) noncitizens comprise significant percentages of the Hispanic (16) and Asian populations, but much smaller percentages of the black and non-Hispanic white populations, as shown below.

   Thus, the citizenship requirement significantly reduces Hispanic and Asian eligibility for jury duty, while having little effect on the eligibility of blacks and non-Hispanic whites.

   To illustrate this effect, consider the federal jury pools in the Central District of California, which has the largest population of any federal judicial district--over eighteen million. (18) The Central District contains three divisions from which juries are drawn: the Western Division, consisting of Los Angeles, San Luis Obispo, Santa Barbara, and Ventura Counties; the Eastern Division, consisting of Riverside and San Bernardino Counties; and the Southern Division, consisting of Orange County. (19) Figure 2 below illustrates the alienage of adult noncitizens by race for each division.

   [FIGURE 2 OMITTED] (20)

   The percentages of adult Hispanics who were noncitizens were 41%, 33%, and 45%, in the Western, Eastern, and Southern Divisions, respectively. The percentages for Asians were 29%, 28%, and 24%. In contrast, the percentages for blacks were 4%, 3%, and 6%; and for non-Hispanic whites 5%, 2%, and 3%. (21)

   In sum, noncitizens make up a significant percentage of the U.S. population, with particularly high concentrations in some areas. Because noncitizen status is correlated with race and ethnicity, the citizenship requirement for jury service results in underrepresentation in jury pools of certain racial and ethnic groups, particularly Hispanics and Asians, compared to their representation in the general population.

2. THE EFFECT OF THE CITIZENSHIP REQUIREMENT ON JURY TRIALS

   The jury plays multiple roles: it is both an arbiter of justice, making findings of fact and determining the outcomes for litigants and defendants, as well as a civic institution, allowing members of society to participate in their community's governance. (22) From both perspectives, the exclusion of noncitizens from juries raises a host of concerns. These concerns stem not only from the exclusion of noncitizens per se, but also from the resulting underrepresentation of racial and ethnic minorities. This Part briefly addresses the functional concerns related to exclusion--such as juror bias, poor quality of jury deliberations, and institutional legitimacy--leaving the doctrinal concerns to Part III.

   1. Jury as Decisionmaker

      The exclusion of noncitizens from the jury raises concerns related to the quality of the jury's deliberation and decisionmaking. The exact nature of the concerns, however, differs depending on who is before the jury. Below, I briefly outline the concerns that apply, first, to all parties in jury trials, regardless of their race, ethnicity, or citizenship status. I then outline the additional concerns for parties in jury trials who are noncitizens, and finally, concerns for parties who are minorities.

      1. Nonminority citizen parties

         Though it might seem at first that exclusion of noncitizens is largely irrelevant to nonminority citizen parties, evidence suggests it may impact any party in a jury trial. Studies have found that changes in jury composition affect outcomes, even when the defendant is white. One mock jury study, (23) for instance, found that the more white jurors there were on the jury, the more likely the jury was to reach a guilty verdict, even...