Today let’s take a short break from the dismaying spectacle of everything Washington and celebrate one feature of American democracy that still pretty much works. I refer to jury duty, which, since the abolition of the draft and aside from taxes, is the most arduous chore that comes with government by the people.
The subject is on my mind not only because I spent two days in a jury pool last week, but also because of some interesting news. The great laboratory state of California has just come up with an interesting idea for enlarging this quintessentially American institution: including noncitizens. The state Legislature passed a bill last month opening jury service to permanent legal residents (not, as foxnews.com misreported, “illegal immigrants”) and it is awaiting the signature of Gov. Jerry Brown. We’ll get to that shortly.
A few years back my colleague Adam Liptak — deftly extracting a column from his own days in a jury pool — pointed out that the jury trial is in sharp decline, replaced by out-of-court settlements and summary judgments from the bench. This trend continues, boosted by the financial crisis. Budget cuts in many jurisdictions have raised the threshold for jury trials because they are more expensive. It is more likely than ever that when you are summoned to jury duty you will go home, as I did, without working a trial. This is generally a relief for people who have other places to be but is also a saddening retreat from what is, as one judge enthused to Liptak, “the most stunning and successful experiment in direct popular sovereignty in all history.”
I’m a cheerleader for jury duty. It is one of the few rituals of our political system that respects the experience and common sense of the ordinary citizen, and that puts a premium on an open mind. A collection of strangers from disparate backgrounds, in pursuit of a common purpose — justice — is the founders’ vision in microcosm. Sure, we can all think of cases where a jury was razzle-dazzled by a skillful attorney, or lost in the complications of evidence, or swayed by popular prejudice. But judges are human, too. And a jury can soften the rough edges of the law.
Jury duty serves not just plaintiffs and defendants, but the jurors themselves. The formalities of the adversarial legal system may be inefficient, and the shabby ambience of an urban courthouse may not reflect our esteem for the rule of law. (I spotted a television with rabbit ears in one judge’s chambers.) But the genial shtick of the clerks who explain the procedures and thank you profusely for your service made me feel like a more dutiful member of society. I even experienced a spurt of old-fashioned patriotism watching the orientation film, which begins with a costumed re-enactment of medieval trial by ordeal, continues with the late Ed Bradley of “60 Minutes” relishing the we-the-people-ness of jury duty, and includes black-and-white clips from ancient episodes of “Perry Mason.” A friend who happened into the same jury pool confessed that the video made her tear up.
My particular pool — the 30 prospective jurors interviewed by lawyers in a slip-and-fall injury case — was a classic New York ensemble: a shrink, a sports agent, a singer-dancer from a wonderful Broadway drag-queen musical, “Kinky Boots,” a few people who do things with software, a veteran of the garment district, at least one person between jobs, and one man who had to be excused because his English was not up to the task. When the plaintiff’s lawyer asked the Broadway hoofer if he or anyone close to him had been involved in any lawsuits, his droll reply set off a communal hoot of laughter: “I was in ‘Spider-Man: Turn Off the Dark.’” A New York jury pool did not have to be told that “Spider-Man” is one of the most accident-prone and litigated productions in Broadway history.
Over the decades, juries may have become more scarce, but they have also gradually become more inclusive, in an effort to make real the constitutional promise that a jury should be selected from a population of one’s peers. In that orientation video I described, Ed Bradley reminded us that it took most of two centuries for African-Americans and then women to be allowed to serve on juries.
More recently, upper age limits have fallen away and most jurisdictions have done away with easy exemptions for VIPs. (Mayor Michael Bloomberg showed up to serve in 2007, though the gilded class seemed largely absent on the days I attended.) Paula Hannaford-Agor of the Center for Jury Studies told me New Mexico now requires that if a prospective juror speaks only Spanish or Navajo, he or she cannot be excluded but must be provided an interpreter. The 9th Circuit Court of Appeals in California is considering whether lawyers can use their peremptory challenges to exclude gays from a jury, which has led some legal scholars to wonder whether peremptory (as opposed to for-cause) challenges should be done away with altogether.
It took Bob Wieckowski to ask the next obvious question: Why only citizens? Wieckowski is the chairman of the Judiciary Committee of the California Assembly, and the main sponsor of the bill opening juries to green card-holders. It is apparently the first of its kind.
“They benefit from the protections of our laws, so it is fair and just that they be asked to share in the obligation to do jury duty,” the assemblyman said during the floor debate. In California, which has the largest percentage of legal noncitizens in the country, the new law would expand the eligible jury rolls by about 15 percent, easing the burden a little on conscientious citizens.
Perhaps because of the political toxicity of anti-immigrant feeling, the assemblyman emphasizes that he is imposing an obligation, not just bestowing a privilege. But of course he is doing both. Noncitizens sue people, so they should do their part. Noncitizens are sued (and charged with crimes), so why should they not be entitled to have their peers be eligible for the juries that sit in judgment?
The bill was opposed by conservatives who insisted that jury service should continue to be reserved for citizens because — well, basically because it has traditionally been reserved for citizens.
Beyond that appeal to custom, the arguments against enrolling noncitizens get a little feeble. One is that recent immigrants, coming from places that don’t have a jury system (and most countries do not), are ill equipped to handle the nuances of service. But there is no assurance — and certainly no requirement — that full citizens will be better versed in the legal system, or more devoted to its values. In any case, a jury’s role is not to interpret the law, but to apply the judge’s legal instructions to the facts.
Another line of criticism is that only people who have a say in the making of laws through their vote — that is, citizens — should be involved in applying the law. To that, Wieckowski has a neat retort: In California there is no requirement that a lawyer be a citizen, or even that a judge be a citizen. In fact, according to the website of the American Judicature Society, 23 states (including New York) do not specify that a judge must be a citizen.
Tocqueville, America’s favorite 19th-century Frenchman, marveled at our jury system as a “public school, ever open,” a most effective means of inducting people into a culture of rights and responsibilities. That, to me, is the best reason to applaud the California initiative. It offers these relatively new members of our society a taste of — and a stake in — what is best in our democracy.