Some California jurors are being paid $100 per day, but is the program sustainable?

Some California courts are testing a pilot program that pays jurors $100 a day, and opinions are split as to whether more courts should consider doing the same.

In California, as with most places in the United States, all people “accused of a crime or involved in a civil dispute have a constitutional right to have a jury decide their cases.” That means that at some point in their lives, most Californians will be called to sit on a jury.

The State of California takes this obligation seriously.

California Labor Code section 230 prohibits an employer from terminating employees just because they have to miss work in order to perform jury service.

That said, the Labor Code does not mandate that employers compensate employees for this time away from work.

As you’ll see below, this state of affairs has caused a real financial hardship for thousands of potential jurors within the state. Many people simply cannot afford to serve, and those who can do not adequately reflect the state’s vast diversity.

That’s what prompted a pilot program in California that provides certain jurors with a $100/day payment in exchange for their service.

In this article, we’ll take a look at existing juror pay in California as opposed to the pay provided under that pilot program. We’ll also explore the pros and cons of the increased compensation.

While we can only speculate on whether this program will become the standard operating procedure for California courts, the numbers seem to suggest that a more robust compensation practice is both necessary and well received.

The current state of jury service in California

Generally speaking, California jurors are paid $15 per day starting on their second day of jury service.

As of January 1, 2023, the minimum wage in California is $15.50 per hour.

What that means is that the state’s lowest wage earners will earn less in an entire day of jury service than they will for just one hour of work.

For full-time minimum-wage earners, that means they will lose roughly $109 for every day that they serve on a jury (with a $124 loss on the first day of service). Given that over 3 million Californians are living paycheck-to-paycheck, it’s clear that jury service is not a viable option for many of the state’s residents.

Moreover, although California has attempted to incentivize employers to support their employees’ participation in the jury system, the truth is that many companies can’t afford to pay people who aren’t working.

Add all of this together, and what you end up with is a system where many state residents on the lower end of the socioeconomic scale have to be excused from jury duty simply in order to live.

The impact of the current system on litigants

The exclusion of low-wage earners from the jury system has significant impacts on litigants.

Americans are guaranteed a trial by “a jury of one’s peers” by the 6th and 14th Amendments to the U.S. Constitution (and jurisprudence interpreting those provisions).

Now, consider the fact that 80% of felony criminal defendants cannot afford their own defense attorneys. Moreover, many civil litigants (especially wage and hour plaintiffs, personal injury plaintiffs, and mass tort plaintiffs) are only able to get into court under contingency fee agreements.

In other words, many of those seeking justice come from lower socioeconomic groups.

These realities beg the question: if the socioeconomic peers of these litigants cannot afford to serve on jury duty, are these justice seekers getting a “jury of their peers” in reality?

The answer, in all likelihood, is no.

The Be the Juror pilot program

Enter San Francisco’s Be the Juror program, which began in March 2022 and is slated to be renewed in March 2023 for further study.

In short, it allows jurors whose annual compensation falls below certain thresholds to apply for a $100 per day compensation for jury service. It was created to foster “a more racially and economically diverse pool of jurors.”

Guess what happened when the program was put into place?

Jurors and potential jurors suddenly reported a much higher interest in fulfilling their civic duty.

More importantly, the program was believed to facilitate much more thoughtful deliberations among jurors as people who would normally be unable to serve are participating more frequently.

In other words, the more diverse jury pools are talking about more diverse perspectives when it comes to law and justice.

What are the challenges?

The benefits of this type of program are obvious: increased juror participation, a more diverse jury pool, and ultimately, greater justice.

But what are the drawbacks?

The first and most obvious challenge is cost.

While San Francisco was able to find the necessary funds for the limited-time program within the treasurer’s coffers, it remains to be seen whether and for how long other jurisdictions could make this work. After all, $85 more per day, per juror adds up fairly quickly (roughly $1,000 per day for your standard 12-person jury – or over $200,000 per courtroom per year).

It also remains to be seen whether California’s electorate would vote for bonds or other funding measures for something that many people believe does not impact their day-to-day lives.

Once you have people applying for funding, you also have a small percentage of people willing to commit fraud. A prolonged program would likely need administration and enforcement components.

That said, for a recycled trial attorney like myself, this program is a no-brainer.

To work properly, the justice system needs full participation from a willing population. It needs diverse perspectives on just about every legal issue imaginable. It needs to be representative of the people.

Most days, it seems to be none of those things under the current system.

It’s hard to say whether this program will catch on but one thing’s for sure – we’ll be watching and reporting.

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