Commentary

Use Market to Select Jurors

By Dominick T. Armentano
This article appeared in the Press Journal on May 22, 1999.
In Indian River County, Florida, as almost everywhere in the U.S., jury duty is mandated by statute. This means that the courts in the county are authorized to “summon” specific individuals for service in civil and criminal proceedings as jurors. A failure to respond to the jury-duty summons can be considered a “contempt of court” and a fine not to exceed $100 can be imposed.

Trial by jury is guaranteed in the Constitution but this doesn’t mean that serving on a jury is some unique civic duty - as some courts would have you believe. Indeed, forcing individuals to appear for jury duty against their will flies in the face of the spirit of other constitutional guarantees, such as the prohibition on involuntary servitude.

Some trials may require juries, but that doesn’t mean that government must draft or “impress” potential candidates. There are more efficient and more ethical ways to obtain adjudication services.

The most obvious alternative to government mandated service is to use a free-labor market. Ironically, while jurors are currently commandeered, the courtrooms where they serve are cleaned, painted and maintained by hired help. Policemen perform all sorts of civic duties but they are not drafted: they are carefully recruited and paid. Telephone companies require that individuals climb poles and repair transformers; they train and pay the people that they need.

Indeed, all other tasks in a free society - from arbitration to military services - are accomplished by individuals who are hired and paid appropriate compensation. The system can work for jurors, too.

Hiring jurors has all sorts of “efficiency” advantages. First, laborers are happier and more productive if they choose their own line of work and if they are paid fees commensurate with the services that they render. (Those who resent payment can simply volunteer services.)

Second, individuals with appropriate aptitudes can be recruited to help decide technically difficult cases; this must make for better “judging.”

Third, random selection recruitment (based on motor-vehicle registration) can be abandoned in favor of self-selection, a vastly more efficient recruitment device (since only those interested self-select.)

Finally, juror shortages are minimized since the courts tap a more receptive labor pool and pay a competitive wage for service.

Two common objections to hiring jurors is that it’s too expensive and the state can “buy” the verdict that it wants. The second objection easily fails since jurors are already compensated (although not adequately) under the current system.

And whether the newer system is “expensive” depends upon how we calculate costs. In the current system, individuals are taken away from jobs with substantial market value to serve as jurors. This “opportunity cost” to those individuals and to society is staggering - and it goes uncalculated and uncompensated.

In a free market, this problem is lessened substantially since attracting potential jurors would require that they be paid their opportunity cost. That’s not “expensive”; that’s just fair.

But even more important than economics, a juror-hiring system is more consistent with common-sense notions of liberty and justice - for jurors. After all, potential jurors are innocent of all crime yet, ironically, they are the ones deprived of their liberty and ordered to sit in judgment of those charged with real crimes! They are also subject to rigorous and personal pre-trial questioning by attorneys; defendants, on the contrary, can constitutionally remain silent.

This unethical treatment of innocents might be justified if there were absolutely no alternative; but that’s simply not the case. We can move to a free market for juror services tomorrow if we can summon the political will and the moral courage to do so.

Dominick Armentano is an adjunct scholar at the Cato Institute.