Time to Reform Jury Duty?

Surprisingly, some people actually appear not to want to serve on a jury. I would like to serve, but I can’t manage to get seated on a jury. I’ve been called for jury duty twice. The first time I was dismissed before I even saw the inside of a courtroom. Today I traveled to Jefferson County’s “Taj Mahal,” where twenty-five of us got released by the judge because, in his words, “We’re not actually having a jury trial today” in the case for which I was called.

My experiences illustrate why jury duty in Colorado should be reformed. After I review some modest reforms, I’ll consider some broader possible changes.

I awoke at the 6:30 in the morning and left my house a few minutes after seven. After missing the Colfax exit off I-70, I circled around and made it into the building at quarter till eight. Check-in was uneventful, though I thought it quite ridiculous that I had to hand over my wallet at security. After we potential jurors waiting around in uncomfortable seats (the problem was low, flexible backs), a judge and then a staffer explained the general process, then showed a video with Ed Sardella further explaining jury duty. The staffer mentioned that, of the several cases scheduled for the day, it was possible that some or all of them could reach a plea agreement.

By 9:50, we were still sitting around. (I read from Sam Harris’s latest book on my iTouch.) Finally at 10:22 a different staffer called my name along with 24 others and asked us to move into the hall. Somebody expressed surprise that it took 25 of us to fill a six-person jury. Judge Bradley Burback was pleasant enough, and he expressed regret that the prosecutor had not yet arrived. Finally a young fellow (I assume from the prosecutor’s office) entered the court room and asked to speak with the judge, who soon assumed an expression that seemed to indicate, “You’ve got to be kidding me.” After telling us there wasn’t going to be any jury trial in this case, he released us at 10:35. So figure the entire event took around four hours of my day, plus gas and vehicle wear.

That’s a price I would gladly bear — if it actually made any difference. The problem is that my time was completely wasted, as was the time of most of those called for jury duty today.

My suggestions for modest reforms are as follows:

First, reach plea agreements the day before trial, and reduce the number of jurors called in accordingly.

Second, call us in no earlier than needed. I see no point of sitting around for two hours. Why not set the check-in time to 9:30 or ten? And make the video available online.

Third, only call in the number of jurors actually needed. (I realize that to some extent this is a guessing game, but the policy now seems to be to call in as many potential jurors as even conceivably needed, then add a large cushion. I’d be interested to know what fraction of those called in actually end up sitting on a jury.)

Fourth, limit the number of dismissals to a reasonable number. I recognize that we don’t want people on a jury who personally know a party in the case, nor do we want KKK members or the like. But those sorts of dismissals constitute a tiny portion of the jury pool. The fact that lawyers can pick and choose the most manipulable jurors from a large pool has led journalist Vin Suprynowicz to define “voir dire” as jury stacking. You simply don’t need 25 people to fill a six-member jury.

Now for my more far-reaching reforms. The first has to do with compensation. If you work for somebody else, Colorado law forces the employer to pay their employee $50 per day for up to three days. (See Statute 13-71-126. Actually, nobody at the court house bothered to mention the detail about the $50 limit.) If you work for yourself, a staffer informed us, the court will provide compensation only in extreme circumstances, as arbitrarily decided by a judge. That’s totally unfair. If jury duty is a responsibility of each individual citizen, then why should employers have to pick up the costs? One of the staffers actually made a point to say that, if potential jurors were released early, the court would not contact their employers, so jurors were welcome to take the rest of the day off. I don’t think it’s the court’s businesses to interfere with employment contracts, perhaps except to mandate unpenalized time off for jury duty. (I don’t even think that’s needed, because any employer who hassled an employee about jury duty would get picketed, and I’d participate.)

It does make sense to me, however, to compensate people for hardship, such as for otherwise-unnecessary child care or mileage for the unemployed. Jury duty shouldn’t put a person in financial hardship.

But I don’t think the state has any business compensating jurors for their time or forcing employers to do so. If it’s a fundamental responsibility of citizenship, then the individual juror should bear those costs. I would be open to arguments for compensation, say, if a trial extends beyond a week or so, given that a tiny fraction of trials can grow exceedingly long. Right now, under 13-71-129, the state compensates jurors (a measly) $50 per day for every day of service after the third day.

I save my most far-reaching and tentative reform for last. Giving the state the power to force people to perform any duty makes me extremely nervous. Does involuntary servitude become morally permissible if restricted to jury duty for a day or a trial? (I notice that Congressman Mike Coffman is trying to end the military draft, an admirable aim.)

Here’s what the statutes say about enforcement: “13-71-123. Enforcement of juror duties. The court shall take whatever action may be appropriate to enforce the provisions of this article. Upon a finding that a juror will not appear to perform or complete juror service or in response to the court’s order, the court may take such action as is likely to compel the juror to appear.”

The key word there is “compel.” Obviously the statute is quite broad.

Yet juries constitute a key protection of our basic liberties. The Bill of Rights guarantees “the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” True, sometimes juries can be capricious, biased, and emotional. But, on the whole, I’d far rather trust my liberties to a jury of my peers rather than to an appointed representative of the state. Locking somebody in a cage constitutes an extreme restriction of that person’s basic freedom of action, and that should be done only after a person is legally convicted by a jury.

So what is the proper way to balance these two apparently competing values? I tentatively propose that people be allowed to ditch jury duty, in writing, and thereby surrender all rights to trial by jury in the future. Under this policy, everyone retains the right to trial by jury, but that right entails participation in the jury system. If you can’t be bothered to serve on a jury, fine: but don’t expect the rest of us to sit on your jury should you stand accused. Of course, for this to work, a person would have to be offered a legitimate opportunity to serve on a jury and then officially decline the summons, having been notified of the consequences.

But this proposal makes me nervous. It could be abused; if standards slipped a jury summons lost in the mail might be construed as nonperformance. Moreover, somebody could claim not to have understood the consequences.

Another possibility is to allow people to buy their way out of jury duty, say with a $100 fine. But this would skew the jury pool to lower-income participants, which disrupts the ideal of a random cross-section of the defendant’s community.

I do not expect the mandated jury service to be altered anytime soon, nor is the matter pressing given all the other obvious and severe violations of our rights. It is an interesting issue in that it involves an unusual tension between liberties and mandates. Even absent reform, I can’t imagine why anyone would try to avoid jury service. My only irritation is that I have not actually been able to serve on a jury.


Amy commented May 22, 2011 at 12:14 PM
The idea of being able to opt out and then relinquish your right to have a jury in the future is an interesting one. And I agree that if the option of a fine was given, a fine that was too low would mean only the lowest income people would sit on a jury. More to think about…

Susan commented December 16, 2011 at 9:59 PM
I work for a dentist he does not pay for time lost in jury duty;also he can not schedule patients w/ me if he does not know till the night before that I will be there, so I lose 2 months pay(lenght of jury duty in KY). When I asked judge to be excused,he said he was “tired of financial hardship claims, he needed jurors”,(by the way, one of the financial hardship excuses he did give was to one of my patients who is a multimillionaire farmer, it is winter here here in Ky, not much for the farmers to do. So yes, having jurors is important, but having to borrow money to pay my monthly bills because of the nature of my job stinks. By the way,I am not poor but definately not rich, I work hard but in todays economy not many people can go 2 months without thier usual salary. Slavery was outlawed by the 13 amendment yet the court can hold you in servitude,at the wimsy of a judge.