May California Allow Non-Citizens on Juries?

The California Assembly has passed a bill allowing non-citizens on juries. A reader asks: Is this constitutionally permissible?

Probably yes. Historically, English and American juries had to be composed of citizens, likely in part because they had to be composed of landowners and in the past non-citizens couldn’t own land. At the same time, in lawsuits involving a citizen and an alien, the jury had to be de medietate linguae — half citizen and half alien (I oversimplify here). The jury de medietate linguae endured in America for several decades.

This suggests that there was no firmly understood constitutional rule that juries had to be citizens, but that the composition of a jury was seen as generally subject to legislative discretion. (Indeed, property requirements for jury membership were relaxed over time by legislative action, and other changes were instituted as well.) To be sure, recent Sixth Amendment cases have limited such legislative discretion, arguing that the jury had to be a cross-section of the community; but I’ve seen none that state that legislatures must select from the community of citizens as opposed to the community of lawful residents.

The few cases I’ve seen that have considered the question have likewise viewed the citizenship requirement as a legislative one, and not one dictated by the federal Constitution. The cases have arisen in contexts where an alien had served as a juror contrary to state law, and the question was whether this was a constitutional violation that required invalidation of the verdict. There had long been a good deal of authority saying that such errors don’t invalidate the verdict, but a few of the cases have stated that this is partly because the errors weren’t of constitutional magnitude. Owens v. State (Md. 2007) so holds, as did Queenan v. Territory, 71 P. 218 (Okla. Terr. 1901).

Finally, several cases in recent decades have held that legislatures may, if they wish, exclude noncitizens from juries. Ever since the early 1900s, and especially since the 1960s, the Supreme Court held that state discrimination against noncitizens is often unconstitutional (the rule does not apply to federal discrimination against noncitizens). But the Court has concluded that various “significant government function[s]” within the state, including that of police officer and public schoolteacher, could be limited to citizens, and in Carter v. Jury Commission (1970) the Court said — though in dictum rather than as strictly binding precedent — that jury service could likewise be limited to citizens. See also Perkins v. Smith (D. Md. 1974) (3-judge court) (upholding the exclusion of noncitizens from jury service), summarly affirmed, 426 U.S. 913 (1976) (with Justices Brennan and Marshall voting to hear the case). None of these cases, however, suggested that states must exclude noncitizens, only that they may.

This having been said, I think the view of all or nearly all American states, which is that jury service is an important government function that should be limited to citizens, is sound as a matter of policy: Juries not only find historical facts, but also often give meaning to vague legal rules (such as “reasonable care”), and of course have the power to refuse to convict in criminal cases based on their own view of justice. That is the sort of thing that should be reserved for full members of the community, who have been admitted as full members and who have pledged loyalty to the country. My point in this post is that this is a matter of policy for decision within each state, and not a matter of federal constitutional constraint.