11/21/2014 12:43 pm ET Updated Jan 21, 2015

Think You Are Guaranteed a Right to a Jury of Your Peers? It Might Just Turn on Your Marginal Tax Rate

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The right to a fair jury trial epitomizes advanced democratic citizenship and was so fundamental to our Founders that it is the only right listed both in the original text of the Constitution and in the Bill of Rights (the first ten amendments that form the core of our civil rights). To this end, almost 75 years ago, U.S. Supreme Court Justice Hugo Black underscored, "It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community."

If we hope to someday achieve durable diversity on juries, we need to do more than legislate and declare that purposeful discrimination is against the law. Jury compensation is a seriously neglected issue, and it's only getting worse. Potential jurors barely able to make their rent can't afford to miss one hour of work. These days, a criminal jury trial lasts an average of five days and the average daily pay is a paltry $22. If missing work means not meeting basic expenses (like the mortgage or rent), these citizens are understandably excused. Each year, some three million people avoid jury duty for financial or medical reasons and another three million simply fail to appear (either they flat-out ignore the summons or never receive it in the mail). Inadequate jury pay is essentially gutting class diversity and creating more homogenous juries that no longer represent a true cross-section of our communities.

Time and time again, the Supreme Court has stepped in to outlaw unconstitutional practices, such as banning potential jurors based on their race, religion, or gender. Also, Congress passed the 1957 Civil Rights Act giving most citizens the right to serve on juries in federal court cases, along with the Federal Jury Selection and Service Act of 1968, which insisted that jury panels come from a fair cross-section of the community. Despite these concrete measures, the history of how minorities have been systematically eliminated from American juries is a long and painful one that has been resistant to legislative and judicial remedies. The jury is still out (pun intended) if fiscal jury diversification will be on an equally onerous track or if there is clear action that could yield broad remediation.

In 1946, the U.S. Supreme Court presciently warned that "Wage earners, including those who are paid by the day, constitute a very substantial portion of the community, a portion that cannot be intentionally and systematically excluded in whole or in part without doing violence to the democratic nature of the jury system." Still, more than half a century later, juries are underrepresented or almost completely void of the poorest citizens. It is not in dispute that the lowest income citizens remain dramatically underrepresented on criminal juries, but what is at issue is whether we are ignoring reasonable remedies that could dramatically broaden the pool of who can be expected to serve as jurors. Many of us involved in the criminal justice system believe that failure to empanel juries who better reflect the socioeconomic conditions of the vast majority of both defendants and victims threatens both the perception and efficacy of a criminal justice system rooted in egalitarian principles.

Clearly we can't force people into jury service that will cut deeply into their ability to provide the basics for themselves and their families. So the answer isn't to slap lower-income citizens with onerous court fines for failure to appear but to acknowledge that for many people, serving on a jury without receiving a decent rate of pay is a heavy, unreasonable burden to ask of them. So what are some possible solutions? First, we could legally require employers to pay for jury service; some larger employers currently cover up to ten days of service and public agencies cover an indefinite number of days for government employees. I realize, of course, that such a requirement could create serious financial hardship for many small businesses. Another option is to give tax credits to employers who pay employees their full salary while serving jury duty as well as tax breaks for the self-employed.

However, likely the simplest possible remedy, is to pay a state minimum wage rate to help alleviate the financial burden for anyone not compensated by his or her employer and who can't otherwise afford to serve. As an illustration of this compensation model, the current minimum wage in California is about $9 an hour and jurors serve a daily maximum of seven hours. Because the average jury has twelve to fourteen people (if you include the alternates) at $9 per hour that comes out to about $882 per day per jury. Since California jurors already get $15 a day (starting on the second day), it would mean an increase of a maximum of $672 per jury, per day if every single juror falls into this low income, uncompensated classification... an unlikely circumstance to be sure. Although few endorse increased government spending these days, it is well to note for relative comparison that $672 is about the same compensation that a single California judge and a single senior California trial prosecutor each earn in one day.

Studies show that response rates rise with a boost in jury pay. For example, after bumping up daily jury pay from $6 to $40, a Texas county court saw that the number of jurors responding to summons had more than doubled in just three months. Some might argue that jurors would be applying for a job instead of fulfilling their civic duty. Look, $9 an hour is only minimum wage and hardly a windfall. I'd also argue that any potential juror with such a mindset would be exposed fairly quickly during jury selection. Another concern might be that jurors could purposefully drag out deliberations to collect more pay. But there will always be pressure from the other jurors who need to get back to what are very likely much higher-paying jobs, not to mention their own lives. It would be rare to find a group of twelve diverse citizens who'd want to game the system for $63 a day.

Supreme Court Justice Thurgood Marshall felt that "[w]hen any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable." By providing decent jury compensation, and possibly providing daycare for the children of jurors, we'll have taken a giant leap forward in building a truly democratic system of justice -- one in which "of the people, by the people" actually means something. So... is it worth the investment?