Is the jury elitist?

I recently stumbled across a research study (which we then discussed in class this past week) conducted by The Dallas Morning News and SMU Law Review studying jury participation for one week in Dallas County in March of 2000. Remarkably, the study found that of 13,027 summonses mailed in anticipation of the 55 trials to be conducted that week, only 2,214 jurors actually showed up as required. But I found the pitiful 17% return rate less troublesome than some of the other statistics in the study, including the socioeconomic composition of those who turned up in comparison to the adult population of the county.

According to the study, 40% of people living in Dallas County earned less than $35,000 annually per household, but only 13% of those in the jury pool earned less than $35,000 annually. In contrast, 42% of the population earned more than $50,000 annually per household, but nearly 70% of the jurors who appeared fell into this income bracket. The reason for all the no shows? These no show jurors said that they would receive no wages from their employers if they served on a jury. Further, Texas pays its jurors a minimum of only $6 per day (or $40 per day if selected) so there is very little incentive for summoned jurors to serve.

Interestingly, in my own interview of a former Dallas County jury member, the juror indicated that he had not been inconvenienced at all by his jury service. He simply had to miss a couple days of work. This juror would fall into the 42% of the population who earned more than $50,000 annually and held a salaried position. Thus, his employer still paid his wages while he served and he received no backlash as a result of his service.

This discrepancy in the incomes of the general population and the prospective juror population makes sense in light of the practicalities of being away from work as an hourly employee compared to a salaried employee. If the only people who still receive their standard paycheck in the event of jury service are those who are salaried employees, then these individuals seem more likely to have higher household incomes and are likely to actually turn up for jury duty because there is no difference between going to work for the day and going to the courthouse for the day.

A structure in which hourly employees simply cannot afford to serve on a jury because they will lose a paycheck and will not receive comparable compensation from the state for their service seems broken. After all, the jury is supposed to be representative, which includes inclusion of lower socioeconomic classes. Instead, this system ensures that the jury remains accessible only to the elite—those who can afford to miss a day of work without losing a paycheck. Such a structure takes us back to the early history of the jury when only those with property could serve (Neil Vidmar & Valerie P. Hans, American Juries (2007)). Today’s version just looks a little different: only those with salaried jobs choose to serve.

It seems that there are two ways to solve this problem: the state could require employers to pay their hourly employees serving on a jury. This requires the state to proactively pass legislation mandating such a requirement and possibly even provide incentives to employers who do. Alternatively, the state could compensate jurors more than a mere $6 per day. El Paso tried this experiment in the early 2000s, increasing juror pay to $40 per day, and the rate of those summoned showing up for jury service increased 38% within 3 years. The federal courts pay jurors $50 per day. Though federal jury service is less common, this provides much more incentive than a mere $6 to respond to a summons.

Regardless of how the states choose to address this problem, it seems quite clear that a jury pool missing a large percentage of those from lower socioeconomic classes is unrepresentative of the general population and lacks a much needed perspective.