Commentary

Abolish Jury “Draft”

This article appeared in the Baltimore Examiner on July 24, 2006.

The present jury selection system is unjust and inefficient. Compulsory jury duty violates the very principle of freedom at the heart of our constitutional republic. And imposing high implicit taxes on jurors—by paying them far less than the wages at which they would voluntarily offer their services—misallocates labor and imposes a net loss on society.

The Free State should be the first to end the jury “draft” and institute an all-volunteer jury, replacing the threat of coercion with the consent of the governed.

Justice requires that government limit itself to its legitimate functions—to protect “life, liberty, and property.” In a free society, the greatest scope should be given to the private sector—to minimize the use of force. Those principles have served America well and have attracted millions of oppressed people to our shores. But they have not always been followed.

Two obvious transgressions were slavery, abolished in 1865 by the 13th Amendment, and the military draft, abolished by Congress in 1973. The third, not so obvious, violation of our civil rights is the existing jury-selection system. It is a form of “involuntary servitude,” although not comparable to slavery or the military draft. Compulsory jury duty cannot be justified by pointing to the right of trial by jury, just as the military draft could not be justified by the power of Congress “to raise and support Armies.” It is a legitimate function of government to provide for the “common defense,” but not to compel citizens to serve.

When President Nixon’s Commission on an All-Volunteer Armed Force recommended abolishing the draft, it did so because it was clear that the draft was anti-American and wasted resources. Nobel Laureate Milton Friedman, a member of the Commission, argued that the real cost of the draft was much higher than the budgeted cost: “Conscription is a tax in kind—forced labor exacted from the men who serve involuntarily. The amount of the tax [which Friedman estimated to be “about 50 percent of the potential civilian income of draftees”] is the difference between the sum for which they would voluntarily serve and the sum we now pay them.” He also recognized that abolishing the draft would reduce the need for recruits because there would be less turnover.

The President’s Commission found that the full cost of the tax was substantially higher than the difference between a soldier’s pay and his civilian salary—due to distortions created by the tax and the costs of maintaining the draft. “For each $1 in tax-in-kind collected,” the Commission estimated “an average of $2.50 is foregone by the public.”

Those same arguments can be applied to the case of compulsory jury duty. Replacing the current system with an all-volunteer jury would ensure that only those citizens who valued jury duty more highly than their next best alternative would serve. Society would benefit by having jobs performed that have a high net value to consumers while at the same time minimizing the need for “jury recruits.” Paying jurors a market-determined wage, rather than a flat rate of $15 per day, would guarantee that only those who are made better off serving society as jurors would be chosen.

In Baltimore County alone, 70,000 people are compelled to report for jury duty each year, only a small faction of whom are chosen for a trial. The cost to the county’s economy is far greater than the meager fees paid out for jury duty. This is true even if employers are forced to pay workers while on jury duty.

Even though an all-volunteer jury would be consistent with justice, liberty, and efficiency, there will be fierce opposition from trial lawyers and others with a vested interest in the current system. Citizens, however, who believe in justice and liberty have the moral high ground.

Legislators, meanwhile, should not be blinded by the so-called savings that appear to be an important element of the compulsory system. Nor should they persist in the myth that the right to trial by jury, as stated in the Juror Guide for Baltimore Country, “requires [i.e., compels] the services of citizens like you.”

James A. Dorn is professor of economics at Towson University and editor of the Cato Journal.