Recently I spent the morning in a large room at San Francisco's Hall of Justice along with several hundred others watching Ideals Made Real, the world's least convincing infomercial. A 14-minute anesthetic that the state of California administers to anxious citizens to ease the pain of imminent empaneling, Ideals Made Real is filled with photogenic flags, close-ups of the Constitution, and candid disclosures from sedately enthusiastic jury duty survivors. "It's often a deep and moving experience to be on a jury," a robotic female narrator eventually concludes, and yet few in the audience seem sold on this premise. Young, old, rich, poor, as demographically diverse a cross-section of the public as the court system's computers can randomly generate, the great overwhelming bulk of them share the last common bond uniting America: They want to escape jury duty. Desperately. When a judge enters the room and asks those who aren't planning to plead hardship of one sort or another to stand up, only a couple dozen of us rise to our feet.
At a time when sentiments against government overreach animate the land, this ennui is, if not exactly puzzling, at least ironic. Trial by jury isn't merely a Hollywood plot device. It's a mechanism designed to prevent government oppression and to disperse the state's power into the hands of the common man. It's the ultimate embodiment of government of the people, by the people, and for the people. Just one problem: The people don't seem all that interested in the job.
Earlier this year in Midland, Texas, for example, 601 out of the 750 people who were summoned to jury duty during a week in September didn't even bother to show up to the courthouse. "It's the most dramatic decline since I've been on the bench," 238th District Judge John Hyde told a local newspaper. That same month in the Virgin Islands, Superior Court Judge James Carroll III had to postpone jury selection because of poor compliance to summonses. "With 38 jurors, you cannot select a jury," he told a reporter. In Indiana, 10,000 people have ignored their jury duty summons since January 2011, prompting Judge Mark Stoner of the Marion Superior Court to start threatening jail time for those who fail to appear.
Jury apathy, or even antipathy, isn't a new phenomenon. In 1939, The New York Times reported that New York County was implementing a number of measures to "curb evasion of jury service." One ongoing factor, of course, is the economic burden jury service imposes. In 1791, jury fees were 50 cents a day. According to legal scholar Evan R. Seamone, who wrote about the history of jury compensation in the Spring 2002 issue of New York University's Journal of Legislation and Public Policy, Congress chose this amount to approximate "the rate the average laborer was paid in Philadelphia."
According to Seamone, the average American juror received "at least the prevailing wage of the time period" as recently as 1918. Over time, however, our legislators have began to look more and more at jurors as a source of cheap labor, less valuable (or at least less compensated) than McDonald's trainees and freelance squeegee guys. Today, jurors in federal court are paid $40 a day—well under the federal minimum wage of $7.25 per hour. In South Carolina, state court jurors receive as little as $2 per day in some counties.
This is one gig where you can't just tell the boss to take this job and shove it. Or if you do, be prepared to a pay a fine of as much as $2,000 or spend some time in jail. Ironically, the system that protects us from unchecked state power requires unchecked state power. If jury duty were voluntary, the thinking goes, juries would ultimately skew toward retirees, the unemployed, close friends of people who are frequently charged with murder, and the like. To ensure that juries are comprised of what the Jury Selection and Service Act of 1968 dubs a "fair cross-section of the community," we make jury duty compulsory. Anyone who is eligible to serve must serve if selected.
If you're one of those rare souls who has actually shown up for jury duty, however, then you know that the first real stage of the trial process—voir dire—has nothing to do with fair cross-sections, impartiality, or any other noble ideals regularly uttered to the beat of a banging gavel. Instead, it's all about giving prosecutors and defense attorneys a chance to winnow the jury pool in ways that favor their side, as determined by jury consulting firms who've focus-grouped surrogate jurors in mock trials and know which way prospective panelists are likely to lean based on such factors as their education level, their personality traits, and the number of hours they spend each week watching Law and Order reruns.
Is an accused murderer's life at stake? Is a lot of money on the line? The greater consequence a trial is presumed to have, the more effort goes into filtering juries in this manner. And if we're okay with ending up without a random selection, why is it so important to start out with one?
Make jury service voluntary rather than compulsory and mostly what we'd lose is a costly, time-consuming ideal—the fair cross-section of the community—which we currently honor by immediately trying to undermine it with the costly, time-consuming process of voir dire.
According to the National Center for State Courts, approximately 32 million people are summoned for jury duty each year. Meanwhile, only 1.5 million people actually end up serving on federal and state court juries. The 30.5 million who don't serve merely increase costs without adding much value except the short-lived "cross-section" illusion. Surely we could find 3 or 4 million prospective jurors to fill those 1.5 million seats through a purely voluntary system if we raised standard juror pay to, say, $100 a day, reduced the time allotted to voir dire, and offered those who do show up to court a much higher chance of actually sitting on a jury after adjusting their schedules to prepare for that possibility.
The average jury trial lasts around 3 days. At $100 a day, the 1.5 million people who serve on juries each year would cost taxpayers $450 million. But think of the impact that $450 million could have. With voluntary service, the court system could stop wasting time and resources on tracking down and punishing jury duty scofflaws. Prospective jurors could be vetted and empaneled more efficiently. Trials would commence in speedier fashion. Employers would reclaim millions of pointlessly wasted man-hours. Perhaps most importantly, millions of U.S. citizens would no longer be detained by their government, or turned into lawbreakers, simply to fulfill someone else's constitutional right. (While the Sixth and Seventh Amendments guarantee us the right to a jury trial if we're accused of a crime or involved in a civil dispute where the value in controversy exceeds $20, the Constitution doesn't explicitly say anything about our obligation to serve as jurors.)
Under these conditions, jury duty would evolve into an opportunity to pursue, not an obligation to duck. The gap between how we champion jury duty in high school civics textbooks and how we actually treat jurors in real life would shrink considerably. As it is, the system seems almost designed to engender cynicism and passivity. First, prospective jurors are conscripted under threat of fine or imprisonment. Then, they're herded into holding pens and made to wait around doing nothing while being taunted by inspirational videos telling them how important they are. After a few days of spending more on parking than he is receiving in compensation, after watching the prosecutor monotonously grill a prospective juror about the time her second cousin was mugged in 1987, a juror knows his role: Not as the grassroots check on government oppression, but as a rather docile cog in the machinery of state. Giving him the power to decide if he even wants to be there is the first step toward fixing the problem.
Contributing Editor Greg Beato writes from San Francisco.