The United States Constitution guarantees individuals the right to a trial by a jury. To implement this right, however, one must find jurors. Many argue that one characteristic of a good pool of jurors is “jury representativeness,” i.e., a set of jurors that is roughly representative of the community from which it is drawn. As an academic, it is quite interesting to think about conditions under which “representativeness” is an appropriate goal (for example, we might not want a representative jury if the population of the local community has strong biases that would make it difficult to ensure a fair trial). But, for purposes of this post, let us assume that representativeness is, indeed, a valuable characteristic of juries.
One way, in theory, to select representative juries is through random selection. If every individual in a population has an equal chance of being selected as a juror, then the average jury will be representative of the population from which it is drawn. This does not mean, of course, that each individual jury will be representative. With only a small number of individuals (e.g., 12) serving on any given jury, most juries will not be representative. But, importantly, because the average jury is representative, we would be able to say with a straight face that the jury-selection system is not biased against any defendant on the basis of being non-representative.
According to a recent news article, Champaign County, IL, picks jurors by randomly drawing names from various lists, including the list of registered voters, licensed drivers, those with state of Illinois ID cards, and those with certificates of disability. Recently passed legislation, which will take effect on January 1, will add to the pool the names of individuals receiving unemployment benefits from the State.
For purposes of discussion, let’s assume that these various lists have done an effective job of providing a list of names that is roughly representative of the Champaign County population. If so, then by randomly drawing names from these lists, the jury pool ought to be representative. Right?
Wrong. It is well-known that when a judge calls down to the “assembly room” for potential jurors, he or she is not selecting from a representative population. Relative to the population, the people who appear for jury duty are disproportionately white, higher educated, and higher income than the population. Today’s jury pool is an effective illustration. I dutifully showed up at the Champaign County Courthouse at my designated 9:30 a.m. time for jury duty. As I casually looked around the room, I could not help but notice how much the room was lacking in diversity. While the lack of racial and ethnic diversity was immediately noticeable, I would also guess that, on average, this pool of jurors was drawn disproportionately from the upper three-quarters of the income and wealth distribution.
Why do we get non-representative jury pools even though we randomly choose names from the various lists? It is because of what economists call “self-selection.” Put in everyday language – not everyone shows up. While I have been unable to confirm the statistic, I remember hearing on a local radio show the statistic that only about half of individuals who receive a summons for jury duty show up and/or have what we educators would call “an excused absence.” To put it simply, “showing up” is not random.
There are many reasons that some groups are more likely to show up than others. No doubt there are differing levels of trust and confidence in the judicial system. Different levels of access to transportation. Differing job and family situations that make it easier for some people to report for duty, and much harder for others. Differing reactions to the bold print warning on the juror summons that warns recipients that a failure to report is a “criminal offense.” And so on …
Aaron Aamons, chairman of the Citizens Advisory Committee on Jury Service, was quoted in the Champaign News-Gazette a few days ago stating that the solution is “education, education, education.” As an economist, I have a different view. I say it is all about “incentives, incentives, incentives.” Or the lack thereof.
I suspect that nearly every individual who receives a jury summons goes through some sort of cost-benefit analysis. They may not think of it in those terms, but they are almost surely asking themselves about factors that would go into such an analysis. “Can I afford to miss that much work, or will I fall hopelessly behind?” “Will my employer pay me, or do I have to take vacation time or uncompensated leave?” “How much will it cost me to get the transportation I need to get to the Courthouse?” “Who will watch my kids, and how much will I have to pay them?” “What are the odds that the Sheriff will really show up and make me report for duty?” (Answer: virtually zero). “What are the reputational costs if I fail to appear?”
There are enormous social gains to having people willing to serve as jurors. But the benefits to any individual juror are quite small. Aside from a general sense of satisfaction associated with doing one’s civic duty, there are no direct benefits. (Unless you count the pitiful $10 per day stipend, which is not enough to cover transportation and lunch for most people, let alone the cost of their time.)
So we have a classic “collective action problem” – it is in society’s best interest for people to serve, but it is in most individuals’ self-interest not to spend time on a jury.
One way to overcome such a problem is to mandate participation. This is what we try to do, but the problem is that we do not enforce it. As I once heard an official say, the County simply does not have the resources to enforce the mandate.
Another way to overcome the problem is to try to increase the non-financial benefits of service. Labeling jury duty as a “civic duty,” appealing to patriotism, giving public kudos to those who serve, and other such appeals are meant to do this. Undoubtedly, these are effective at getting some people to serve. But it is obviously not sufficient to incentivize those who have not been showing up.
A related approach is to try to increase the costs of failing to show. As an individual who tries to behave ethically and in accordance with the law, it is sufficient to deter me from skipping jury duty to simply tell me it would be a criminal offense. But that is printed on every juror summons, and yet we still have highly unrepresentative jury pools.
One obvious answer is to pay jurors more that the pitiful $10 per day that they now pay. If one is a single mother of three young kids who is holding down a minimum wage job at an employer that will not pay for time on jury duty, then the cost of appearing for jury service would be extraordinarily high – foregone wages, payment for childcare, and possibly a lost job. As a matter of social policy, I find it hard to believe that we want to force the group least able to afford jury duty to show up for $10 per day.
But most state and local governments are severely strapped for funds. Quite possibly the last thing they can afford is for each court to pay thousands of potential jurors hundreds of dollars per day for potential service.
Is there a solution? Possibly – but one that only economists would love. To implement it would be highly controversial, and not without reason. But just for the sake of discussion, let me toss it out here. The idea is simple – so simple, in fact, that the inspiration for it comes from a pre-school.
The pre-school to which I am referring offers parents a choice. All parents are expected to volunteer 10 hours per academic year. In lieu of volunteering, parents can donate a fixed amount (e.g., $75) per hour that they want “relieved” of duty. So let’s say that a parent is expected to volunteer at a time in their life where the opportunity cost of their time is enormously high. It may well be socially efficient for the parent to simply donate money to the school instead of volunteering.
You see where I am going with this … let’s suppose that the average jury pool has too many high income professionals (e.g., self-employed business people, highly paid executives, etc.) relative to the population, and not enough low-income individuals. The jury pool would be more representative if we dropped a few of the high income folks and added some low income individuals. So why not have the Court “auction off” a limited number of “excused absences,” and then use the money to provide a more meaningful level of juror pay to lower income jurors?
In a narrow, economic sense, it appears everyone wins. Those released from duty are clearly better off, otherwise they would not have bid so high for release. The low income individuals added to the pool are clearly better off if the additional compensation is sufficient to overcome the barriers to service. And, if implemented effectively, the jury pool would be more representative than it is today. Of course, one would need to avoid the temptation to auction off too many excused absences, or else one might end up with the opposite problem, i.e., too few high opportunity cost individuals on juries.
I am totally sympathetic to many alternative views – especially that this is not just an economic issue, but an issue that strikes at the core of how we define ourselves and our judicial system. So I am not necessarily suggesting this as a serious policy proposal. But it seems that the current system is so highly flawed that serious consideration ought to be given to alternatives, no matter how radical they might at first seem.