Language Disenfranchisement in Juries: A Call for Constitutional Remediation

Abstract

Approximately thirteen million U.S. citizens, mostly Latinos and other people of color, are denied the right to serve on juries due to English language requirements and despite the possibility (and centuries-old tradition) of juror language accommodation. This exclusion results in the underrepresentation of racial minorities on juries and has a detrimental impact on criminal defendants, the perceived legitimacy of the justice system, and citizen participation in democracy. Yet, it has been virtually ignored. This Article examines the constitutionality of juror language requirements, focusing primarily on equal protection and the fair cross section requirement of the Sixth Amendment. Finding the existing juridical framework to be wanting, this Article introduces Critical Originalism — a melding of antisubordination deconstruction principles of Critical Race Theory with the interpretive methodology of Originalism Theory — as a new method of ascertaining and capturing the discriminatory intent behind a statute or procedural rule.

Keywords: Latinos, Limited English Proficient, LEP, race discrimination, national origin, originalism, equal protection, fair cross-section, language discrimination, court interpreters, jurors