The Sixth Amendment of the United States Constitution guarantees all criminal defendants the right to an impartial jury—a body of twelve unbiased citizens chosen from a fair cross-section of the community (“Impartial Jury.”). At trial, the jury should ideally operate as a safeguard against injustice on the basis of identity, but this body of people has repeatedly failed to fulfill its purpose by hurting people designated to the American periphery. It is widely believed that the court primarily contributes to mass incarceration through unfair sentencing procedures; however, this is only a fraction of the dilemma. States like California covertly secure the disproportionate imprisonment of racial and ethnic minorities by underpaying jurors. To resolve this issue, the state government should require employers to pay employees their current wage during jury service.
During jury trials, criminal defendants have one last chance to regain their freedom, but research suggests that the eleventh hour looks different for racial and ethnic minorities compared to their white counterparts. According to Samuel Sommers, a social psychologist researching implicit racism at Tufts University, the racial composition of trial juries correlates with verdict preferences for defendants of color, with “30.7% of participants in diverse groups vot[ing] guilty compared with 50.5% of participants in all-White groups” (603). Racially diverse juries are therefore crucial to securing favorable outcomes for minority defendants, yet trial juries in the United States are overwhelmingly white and rich despite claims that they are representative cross sections of society (Anwar et al. 173). While jury trials only account for 3% of the criminal cases in California (most cases are resolved with plea bargaining) (Judicial Council of California 5), reforming jury service is still wildly important to securing the rights and freedoms of people of color. In California, Black and Hispanic individuals are disproportionately represented in criminal prosecutions—making up 19.5% and 43.2% of felony defendants despite being only 5.7% and 39.5% of the state population, respectively—and face high conviction rates—57.8% for the Hispanic group and 61.8% for the Black group (Judicial Council of California 8-12). Should homogenized juries have a hand in creating these disparities, lawmakers and justice reformists must critique the jury trial just as strongly as they do other American justice topics like policing, even if it only affects a few thousand lives.
Sommers argues that racial diversity in the jury box is essential to eliminating convictions simply based on arbitrary perceptions of identity; however, it is also important to recognize that racial diversity is intertwined with class diversity. Although the study does not pose wealth as a variable, note that Black, Hispanic, and indigenous households “are more likely than white households to be extremely low-income renters—with incomes at or below the poverty level or 30% of their area median income” (“Racial Disparities Among Extremely Low-Income Renters”). Faced with these income inequalities among people of color, we cannot resolve issues of racial diversity in the jury box without addressing the financial barriers associated with jury service.
In California, jurors receive next to nothing for their service: $15 per day. That is one dollar less than the state’s hourly minimum wage in 2024. Such low jury pay puts defendants from minority backgrounds at high risk of criminal conviction by reducing diversity in California jury boxes. In his piece “Race, social class, and jury participation: New dimensions for evaluating discrimination in jury service and jury selection,” Hiroshi Fukurai, a Professor of Sociology & Legal Studies at UC Santa Cruz, asserts that “those without financial compensation are more likely to request economic excuses and, consequently, are weeded out of jury selection,” resulting in a greater number of prospective jurors with fixed salaries serving on juries (83). In other words, potential jurors on hourly wages often ask the court to let them return to work because they would lose money during the days, weeks, or even months served. In fact, Fukurai claims the potential burden is so severe that people with “lower occupational status” and “lower annual incomes” are underrepresented on juries more so than “African Americans, Hispanics, or women as a whole” (82). Despite jury duty being considered a universal civic duty, it is largely inaccessible to low incomes, and, by connection, certain races. Consequently, the jury box fails to adequately represent all racial identities and socioeconomic statuses, creating pathways to the aforementioned conviction disparities at trial.
Low jury pay in California is largely the product of inadequate state funding. In 1957 with the passage of Assembly Bill 3280, the courts began paying jurors in criminal cases $5 per day served and $0.15 per mile traveled to court (California State Legislature 2740). In 1996, California’s Blue Ribbon Commission on Jury System Improvement proposed the first pay raise for jury attendance in almost forty years, but they could not do so without addressing the tremendous financial undertaking that came with passing the 1957 bill: “In 1994-95, the State paid out almost $22 million in juror fees. Juror fees and mileage are budgeted at $23.2 million for 1995-96” (42). Despite the tens of millions of dollars raising jury pay would cost the state, the Commission—recognizing the importance of jury service and the insultingly low jury pay rate—strongly recommended juror pay increase from $5 to $40 (42). The state ultimately settled on $15, which we continue to pay jurors in 2024. These anxieties regarding the cost of another increase in jury pay unfortunately persist for California representatives, preventing similar measures from passing in today’s economy.
To combat jury pool underrepresentation, San Francisco implemented “Be The Jury,” a city-wide program that raised the daily juror pay from $15 to $100 to increase the participation of low-income community members in this civic duty (Galloway). The program’s one-year evaluation found that it increased both racial and economic diversity among San Francisco juries, with 84% of participants—60% of whom identified as people of color—stating that they could not have served if it weren’t for the stipend; furthermore, participants had an average household income of $38,000 while the average household income in San Francisco is just over $121,000 (“Be The Jury: One-Year Evaluation of Program”). Legislators were ambitious proposing a pay increase by $75; however, “Be The Jury” successfully overcame the race and class barriers affixed to jury service and granted criminal defendants a fair chance at proving their innocence to a diverse jury box. Such a program appeared to be the proper antidote for the illness of jury homogeneity in the city, and perhaps even the state.
Following the success of “Be The Jury,” San Francisco lawmakers introduced a bill that would take the program statewide, but the bill ultimately failed due to the same concerns of the past: money. In October 2023, Governor Gavin Newsom vetoed Assembly Bill 881, stating that the payments would destabilize the state budget and increase taxes for the average Californian (Newsom). He echoes concerns of California legislators in 1957 when juries received their first pay increase to $5, alerting lawmakers to the hefty price tag that would come with signing AB 881 into law.
Frankly, lawmakers should stop hiding behind this excuse. There are numerous areas in which California can cut spending to fund “Be The Jury,” many of which are relevant to reducing mass incarceration. Just this year, Newsom authorized $1 billion in raises for prison personnel and hundreds of millions more for constructing prisons “despite a steady decline of the incarcerated population and skyrocketing costs” (Kaneda). While the money may not entirely cover the cost of AB 881, diverting this spending could have put a sizable dent in California’s juror compensation problem. Moreover, Governor Newsom and other lawmakers—both state and federal—must recognize that jury service is to justice as voting is to democracy. For all its faults, the American judiciary has features worth celebrating, such as providing legal representation to indigent defendants and presuming innocence over guilt, but the jury has always been the cornerstone of the courtroom in the United States. Like voting in elections, public participation in the judicial process is critical to building civic trust and establishing transparency. Without a jury that works, people will lose faith in the justice system and everyone responsible for its decay.
That being said, San Francisco’s “Be The Jury” isn’t perfect. Their proposed $100 daily stipend falls short of remedying insufficient pay because it is less than what a Californian making minimum wage would make during an eight-hour day. On $100 per day during service, minimum wage workers who make $128 at work would lose $28 daily, amounting to $84 to $196 lost during the average trial length of three to seven days.
Alternatively, California should strive to emulate the Australian model of juror compensation which requires employers to pay their staff during jury leave, as doing so would simultaneously increase juror compensation and minimize the tremendous costs to the state. Under the Australian Fair Work Act of 2009, “employers are required to pay employees for the first ten days of jury service” (New South Wales Government). Unlike “Be The Jury,” a California bill similar to the Australian Fair Work Act would assign the wage to private businesses. Jury service would be treated similar to sick leave, where employees are paid for their absence from work to fulfill a civic necessity. Even the University of Southern California compensates its employees during jury service by guaranteeing “up to ten workdays will be paid at [the] employee’s regular rate of pay for days the employee was scheduled to work but instead had to report to the courthouse” (Quick).
It is not lost on me that placing this responsibility on small businesses is highly controversial. Government regulations and wage increases hurt small businesses more than big corporations. ″For a small business, you have a higher cost per employee when it comes to complying with regulations than your larger business competitors,” said Tom Sullivan, vice president of small business policy for the U.S. Chamber of Commerce (Anderson). Requiring small businesses to compensate employees for jury service will trouble them with costs; however, if small businesses can recover the money lost, perhaps this may prove to be less of an issue. Instead, the state should reimburse certain businesses according to their reported revenue and workforce size, similar to the California Rebuilding Fund Program—a COVID-19 initiative that provided up to $100,000 loans for businesses that employed fifty or fewer employees and had gross revenues of less than $2.5 million (“COVID-19 Relief and Assistance for Small Business”). While this means that California is not completely free from obligation, this approach would reduce the burden on taxpayers by solely compensating the mom-and-pops as opposed to the corporate giants rolling in cash.
To realize this vision of jury service, we must remind elected officials, small business owners, and voters that we all benefit from higher juror pay. The parties involved should understand jury duty is a civic responsibility every American is required to fulfill. Thus, increasing juror compensation would be in their best interests. A majority of us may grumble when we receive a summons in the mail, but being properly compensated for our service will reduce the inconvenience that comes with serving on a jury. It may even deepen our investments in the trials we sit on by clearing the air of annoyance and frustration. Of course, we must also emphasize that employer-satisfied juror pay is an efficient way to fix a remarkable flaw in a justice system. This amendment to jury service would give defendants of color a fighting chance at proving their innocence before a jury of their peers while eliminating a vestige of racism and classism infecting our court system.
If “Be The Jury” increased minority representation in San Francisco at only $100 per day, imagine the effects of $128—or even greater—per day statewide. Throughout California, diverse, fairly compensated juries could prevent biases from infecting trial verdicts, guaranteeing all defendants impartiality when the world seems to condemn them.
Jurors from both low-income and racial minority backgrounds are necessary for improving perceptions of criminal defendants and lowering rates of criminal convictions. However, the lack of suitable juror compensation prevents this reality by assigning jury service to rich, white people well before the trial begins, thereby feeding the larger beast of mass incarceration disproportionately affecting people of color. As a justice system that prides itself on even-handedness and equality, it needs to reconsider how it positions people of color in its courtrooms, beginning with fixing its juries to reflect a more accurate picture of American society.
Works Cited
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Sommers S. R. (2006). On racial diversity and group decision making: identifying multiple effects of racial composition on jury deliberations. Journal of Personality and Social Psychology, 90(4), 597–612. https://doi.org/10.1037/0022-3514.90.4.597
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