Use Market to Select Jurors

This article appeared in the Press Journal on May 22, 1999.
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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 meanthat serving on a jury is some unique civic duty - as some courts would haveyou believe. Indeed, forcing individuals to appear for jury duty against theirwill flies in the face of the spirit of other constitutional guarantees, suchas the prohibition on involuntary servitude.

Some trials may require juries, but that doesn't mean that governmentmust 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 hiredhelp. Policemen perform all sorts of civic duties but they are not drafted: theyare carefully recruited and paid. Telephone companies require that individualsclimb poles and repair transformers; they train and pay the people that theyneed.

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

Hiring jurors has all sorts of "efficiency" advantages. First, laborersare happier and more productive if they choose their own line of work and ifthey are paid fees commensurate with the services that they render. (Those whoresent 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-vehicleregistration) can be abandoned in favor of self-selection, a vastly more efficientrecruitment device (since only those interested self-select.)

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

Two common objections to hiring jurors is that it's too expensive andthe state can "buy" the verdict that it wants. The second objection easilyfails since jurors are already compensated (although not adequately) under thecurrent system.

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

In a free market, this problem is lessened substantially sinceattracting 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 arethe ones deprived of their liberty and ordered to sit in judgment of thosecharged 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 toa free market for juror services tomorrow if we can summon the political will andthe moral courage to do so.

Dominick Armentano is an adjunct scholar at the Cato Institute.