Economics is one of the various disciplines that has made a repeat appearance on the blog (example, example, another example, and even last week). This is because, before law school, I was an economics major. I was also raised in an entrepreneurial family where financial and economic literacy were taught at a very young age.
Let's rewind a bit to just before I graduated with my bachelors in economics. The year is 2016. Harambe is still alive and no one outside of virologists think about coronaviruses regularly. A young Dewy decided to take on a senior thesis to graduate with distinction because I've never been good at making things easy for myself. I knew that I was headed to law school and wanted to write something that bridged the disciplines.
I had also been called for jury duty for the first time the preceding summer. Thankfully, I was interning for a judge, who totally understood and didn't care. But a few days after my jury duty, I received a check in the mail to compensate me for my time. I wondered how much money is expended in administering the right to a trial by jury. And I had my topic.
Not to spoil much, but I did pretty well with the paper. I presented it at the 2016 Colonial Academic Alliance conference and it won the Manya and Max Tenenbaum Endowed Memorial Prize in Economics. Though, do remember that all these facts and figures are from 2015/2016. I doubt the overall point has shifted much, but the underlying data is likely out of date to a degree.
Also, this was done before I went to law school and learned the superior citation method that is the Bluebook, so this is in Chicago (shudder).
Pictured: A younger Dewy who was still pretending to be a man.
Though, I would wear suits like this all the time because they felt less gendered (breadcrumbs that I didn't realize were breadcrumbs).
Well, I spent a lot of time on it, so I figured it should be immortalized here rather than living as a random word document on my computer. So here you go!
***
Section 1: Introduction
Many Americans are familiar with the feeling of getting picked for jury duty. After reporting at an ungodly hour of the morning, prospective jurors are shuffled around between courts and spend much of their day listening to various officials and lawyers talk in confusing terms. A majority of the prospective jurors are sent home by midday while others are selected to actually sit on panels and listen to cases. Although the opinion of many disgruntled jurors is that jury service can be a waste of time, the right to a trial by jury is a cornerstone of American democracy. Indeed, the right to a jury trial has been guaranteed in the Bill of Rights since the inception of the United States. More precisely, the Sixth and Seventh Amendments of the Constitution guarantee the right to a trial by jury in criminal and civil matters respectively. The original purpose of these rights was so that decisions on innocence and guilt would be made by peers instead of the rich and powerful. Although the right to a jury trial is generally held to be a cornerstone of American democracy, whether or not they are a socially efficient institution is a matter that requires an evaluation of their costs and their benefits. This thesis primarily focuses on quantifying the costs of this institution.
Unfortunately, within most sources that cite or discuss “the cost” of justice or juries, a reader will commonly see that the cost of juries remains either ambiguous, undefined, or simply misunderstood. For instance, in a press release by Macomb County in Michigan, the county attorney’s office discusses a signed bill that “reduces jury costs” without ever specifying exactly what those costs were or by how much they were reduced[1]. Another example of this method of discussing “the cost” of juries was taken by Bertel Sparks in his writing for the Foundation for Economic Education. When discussing criticisms and costs of the jury system, Sparks mentions many issues, including time, expertise, and even the charm of attorneys[2], but blatantly ignores the extra monetary expenditures that the jury system requires. Some institutions, such as the Center for Jury Studies, have compiled large quantities of data regarding number of jury trials per year and have provided estimates on how much inefficiency within the jury trial system costs, but are yet to calculate how much the entire system costs.
In short, there does not currently appear to be any study on this aspect of the American jury system. Most scholarly discussions on juries do not focus on the cost of juries but instead focus on jury selection and fairness. For instance, Michael Saks and Mollie Marti dove into the effects of the size of a jury and concluded that “it appears that larger juries are more likely than smaller juries to contain members of minority groups, deliberate longer, hang [not agree unanimously] more often, and possibly recall trial testimony more accurately.”[3] In other words, according to Saks and Marti, it is more desirable to have a larger jury for a variety of reasons. Another issue that is discussed about juries is the currently growing phenomena in which more and more civil cases are choosing to avoid the jury trial altogether. For instance, the Wall Street Journal has written that “fewer than 1% of federal civil cases are resolved by juries these days, down from 5.5% in the 1960s[4]. When asked about this phenomenon, Judge Robin Darr of the 385th District Court of Texas replied that “Civil cases as a whole, and certainly the civil jury trial… are diminishing. Since I’ve been on the bench [11 years], I think I’ve only tried 5-6 civil jury trials.”[5] Though the effects and issues discussed in the law community about juries are certainly important, the bulk of studies about juries does not help answer the question of the cost of juries.
The goal of this project is to estimate the annual cost of the American jury system. Because a bench trial is similar to a jury trial in almost all aspects (except for having a jury), it is a good baseline to measure additional costs that are exclusively attributable to the jury system. By identifying the resources that the jury system requires and that the bench trial system does not, I develop an estimate of the cost of jury trials at the level of individual states (including DC). Furthermore, I identify a few second-order (or indirect) effects of having a jury trial system, such as extra jail time or higher settlement rates, and provide some basic estimates of their cost. The estimates are based on data for all state level jury trials within the United States, including both criminal and civil trials. In short, the government accounting costs for maintaining this right is approximately $131,791,000 per year and the opportunity cost is approximately $1,707,916,000 per year. Both of these costs are low when compared to other benchmarks.
The next section defines the parameters of the jury trial and discusses the basic assumptions behind the cost measurement exercise carried out in the paper. Moreover, I give reasons for excluding certain procedures, such as family cases and grand juries. In section 3, I calculate the approximate yearly cost to taxpayers by state. Section 4 presents my estimate of the annual opportunity cost of the jury system, which includes the opportunity costs from jurors’ and court personnel’s time. Section 5 briefly discusses costs that are not quantifiable but are still of significance while section 6 offers inferences and conclusions.
[1] Steve Bieda “Governor Signs Bill Reducing Jury Costs,” Macomb County Clerk, April 28, 2005, http://clerk.macombgov.org/Clerk-Jury-News-JuryCosts
[2] Bertel Sparks, “Trial by Jury vs. Trial by Judge,” The Freeman, The Foundation for Economic Education, 1 October 1995, http://fee.org/freeman/trial-by-jury-vs-trial-by-judge/
[3] Michael Saks and Mollie Marti, “A Meta-Analysis of the Effects of Jury Size,” Law and Human Behavior 21, no. 5 (October 1997): 451-467.
[4] Joe Palazzolo, “Reversing the Decline of the Civil Jury Trial,” The Wall Street Journal, Dow Jones & Company, Inc. 28 July 2015, http://blogs.wsj.com/law/2015/07/28/reversing-the-decline-of-the-civil-jury-trial/
[5] The Honorable Robin Darr, email message to author, October 30, 2015.
Section 2: Defining Parameters
A modern petit jury trial is well defined and formalized. First, individual summons are sent to a large number of people within the district of the court. Unfortunately, up to 80% of jury summons are either lost in the mail or simply ignored by the recipient[1][2]. Because of this, courts are forced to send far more jury summons than they would need to if all individuals summoned would appear in court. On the day of the trial, the courthouse staff keeps track of how many people show up. If there is more than one court in a courthouse (which is generally true), those who appear are separated into panels of approximately forty to seventy people and assigned to a specific court. At this point, the jury goes through what is known as “voir dire” or jury selection. Within voir dire, the lawyers involved in a case or the judge of the courtroom makes a brief presentation to the prospective jury and asks questions of the panel. Then, each side has the option of striking members of the prospective jury that they did not like or are unqualified to serve. The first twelve unstruck individuals are selected as the jury for the case (only the first six are selected for misdemeanor cases)[3]. One or two alternate jurors can also be selected at this stage. After selection, each side’s attorneys are given the opportunity to make an opening statement to the jury. Then, evidence is presented by both sides. At the conclusion of the evidence, the judge charges the jury with a set of instructions and both attorneys make a closing argument. At this point, the jury retires to a secluded room and is not allowed to emerge until a verdict is reached. The jury then presents their verdict and the trial is over. In some instances, there are phases of trials. For example, within criminal cases, sometimes guilt or innocence is decided and then there is a separate phase of punishment. Likewise, within civil cases, liability can be decided in a separate phase before damages are decided. If a trial needs to move onto a different phase, the process simply repeats itself with different evidence from the opening arguments phase (with the same jury). A bench trial has a similar process to a jury trial, with the distinction that the case is heard by a judge instead of a jury. Instead of merely presiding over the proceedings, a judge in a bench trial is the individual who determines facts, guilt, punishment, liability, or damages.
There are many trials and courts that will be considered within the scope of this research paper. The first distinction to make is the types of courts that will be included. Generally, the three branches of law that are heard within a courtroom fall into three categories: criminal, civil, and family. Criminal law is the most famous of the three and encompasses most cases that are prosecuted by the government. Within criminal law, there is a distinction between felony cases and misdemeanor cases. Although cases such as Duncan v. Louisiana states that felonies are the only cases to which the Sixth Amendment guarantee applies,[4] guaranteed jury trials for misdemeanor cases are still common throughout the United States and will therefore be included in calculations. Civil cases are cases in which a plaintiff sues a defendant for damages. Though less common, civil cases are also guaranteed a jury trial in any dispute over $20 as per the Seventh Amendment. Finally, family courts handle cases such as child custody or divorce. Because many proceedings within a family court do not use juries and such cases are not guaranteed a jury trial by the constitution, this paper focuses on criminal and civil trials.
It is also important to note that the right to a trial by jury can be waived for a variety of reasons. For instance, “a prosecutor [in a criminal case] will sometimes prefer a bench trial, if the issues relating to the crime charged are believed to be too technical for the average juror to comprehend… A prosecutor might also prefer a bench trial where a criminal defendant has achieved some sort of popularity… A defendant might seek a bench trial for similar reasons.”[5] In the civil realm, parties might wish to have a bench trial for similar reasons or simply to save money or time. Generally, a waiver of jury trial is made explicitly within a contractual clause, much like an arbitration clause. If both parties agree to set aside this portion of a contract, a court may hold a jury trial. However, in the case of a disagreement between the two parties on this matter, the language in the contract will prevail and the court will hold a bench trial. These circumstances can only be overcome if a party can find a compelling reason to exclude this language (lack of capacity, mutual mistake, fraud in fact, etc.). However, the right to a trial by jury can also be waived implicitly through inaction. When asked about this, Patrick McKeown, a bar admitted attorney of 29 years noted that “A defendant in a civil or criminal matter may waive a jury by not making a timely demand for such, in the manner prescribed by applicable procedural law. In civil litigation, a Plaintiff files a Note of Issue, to state that all pre-trial procedures have been completed and that the case is ready for Trial. If the Plaintiff has sought a non-jury trial, the Defendant has twenty days in which to Demand a Jury Trial, or the Court presumes the Defendant wants a non-Jury trial as well.”[6] In short, this means that more cases are eligible for a jury trial than actually occur. Because the calculations made within this study disregards trials in which the right to a trial by jury has been waived, there is a much higher potential cost for this right than the cost that will be calculated.
This study will focus exclusively on the costs of petit juries, leaving aside expenses pertaining to grand juries. Although grand juries are also constitutionally guaranteed by the 5th Amendment, grand juries take place in a completely separate part of the judicial process and focus on whether or not to indict an individual for a crime, rather than pass a judgment of guilt or punishment. It is unclear what method would be used to replace this aspect of the judicial system, and therefore unclear what costs associated with a grand jury could be considered unique. On the other hand, petit juries, which can decide guilt or punishment, are the panels that sit in on cases within the courtroom. There is already an alternative trial method (bench trial) that can be used instead of a petit jury that is established and widely used when a party waives their right to a jury trial. Because of this established alternative system, it is easy to compare the differences between a jury and bench trial and see what aspects of a trial would be considered essential. Because of the lack of a clear alternative and that the right to a grand jury originates from a different amendment within the Constitution, any mention of a “jury trial” or “juries” refers to a petit jury trial.
[1] The percentage of people who ignore a jury summons varies greatly from county to county. It is also worthwhile to note that some counties routinely punish those who do not respond to a jury summons. Mariah Wojdacz, “Jury Dodgers: What Really Happens if You Ignore Your Jury Summons?,” legalzoom, September 2009, https://www.legalzoom.com/articles/jury-dodgers-what-really-happens-if-you-ignore-your-jury-summons
[2] Witherspoon, Tommy, “Waco judges drawing the line on jury duty no-shows with fines,” Waco Tribunal. 28 November 2015, http://www.wacotrib.com/news/courts_and_trials/waco-judges-drawing-the-line-on-jury-duty-no-shows/article_14a06cff-e567-52d3-8438-3cffe5f3a637.html
[3] The seventh amendment right to a jury within a civil trial has not been officially incorporated due to the lack of a trial reaching the Supreme Court with this as the issue. However, all states “may not eliminate trial by jury as to one or more elements [of a trial].” Essentially, the right to a trial by jury is guaranteed. See Cornell University Law School, “Seventh Amendment,” CRS Annotated Constitution. 2016, https://www.law.cornell.edu/anncon/html/amdt7frag1_user.html
[4] Duncan v. Lousiana. 391 US 145 (1968)
[5] Patrick McKeown, Esq., email message to author, October 18, 2015.
[6] Patrick McKeown, Esq., email message to author, October 18, 2015.
Section 3: Government Accounting Costs
There are two types of costs incurred by having a jury trial system. The first are “accounting costs” or what is spent in direct payments. The other type are “opportunity costs” which includes what is given up to accomplish something. This section is devoted solely to finding accounting costs. This section further narrows the scope of costs by solely looking at direct expenditures by the government. Though this is not the entire cost of the right to a trial by jury, it is the amount that must come directly from taxes. These expenditures include what is paid explicitly by the government to jurors and any direct costs associated with the summoning process.
All states pay jurors a fee to compensate people for their time. This amount varies from as little as $4 per day (Illinois) to $50 per day (South Dakota).
Source: National Center for State Courts
Also, many states have a graduated system in which they pay jurors. For example, Texas pays jurors $6 for their first day of service, but $40 per day for each subsequent day. Variation between states and graduated rates can be seen in Chart 1 and Table 1.[1] It is important to note that this data is a minimum amount that will be paid by the government. The data within Chart and Table 1 is the minimum amount the government will pay someone, even if they are employed. There are, in some states, an additional fee that will be paid by the juror’s employer. If the individual is unemployed, the government will pay this fee instead. This additional fee was not included as the amount that is expended by the government and the amount expended by private employers is unknown. This means that a portion of the total accounting cost is paid by private employers. Some states also have juror fees that vary from county to county. For purposes of this paper, I utilized the minimum state rates for states in which the fee varied within the state. Also, even though some states do compensate jurors for miles traveled, I have left this out of the calculation due to lack of data on average distance traveled. Furthermore, most states require that jurors must actually serve on a jury to be compensated, so I calculated this amount by utilizing the number of jurors used in trial rather than the number of people who responded to summons. The amount of money spent by state governments in juror fees can be expressed as:
The previous equation was used where n is the number of trials and f is juror fees payable to one juror for a trial of average length. fl refers to felonies, ms refers to misdemeanors and cv refers to civil trials. N is multiplied by twelve in case of felonies and civil trials and by six in case of misdemeanors to reflect the number of serving jurors.
According to the State of the States Survey of Jury Improvement Efforts conducted by the Center for Jury Studies, the national average length of a criminal jury trial is 5 days while the average length of a civil jury trial is 4 days[2]. The Center for Jury Studies Survey also provides information about the total number of jury trials that occur in each state per year as well as the percentage of civil and criminal cases that the state tries. Based on this information, Table 2 presents estimates of the number of civil and criminal trials that occur in a state within a year. Using this data with estimates on average length of trials and on juror fees, each state's yearly expenditures on juror fees can be estimated (see Chart 2). Overall, the national amount spent on juror fees is approximately $123,523,000.
Mailing all juror summons is another large expense unique to the jury system. The number of juror summons sent annually is staggering; approximately 31.8 million summonses are sent out each year, equivalent to about 15% of the US adult population[3]. Though postage rates do not perfectly measure the cost of sending a piece of mail, it is still the amount that courts pay. Because all jury summons are sent through the United States Postal Service, it is far easier to calculate this expenditure as USPS rates are equal throughout the country. Although the normal rate for postcard type letters is $0.35 per piece, high volume customers get to send postcards for the lower price of $0.26[4]. Assuming this lower price is given to courts, courts spend an additional $8,268,000 in mailing costs.
There are more government expenses such as juror mileage, juror meals, and alternate jurors that, due to a lack of data, are unique to the jury system but not quantifiable. However, juror fees and mailing costs alone account for an estimated expense of $131,791,000 per year. Given that there are approximately 136,100,000 taxpayers within the United States[5], this means that the burden per taxpayer is a mere $0.97. However, because these expenditures are incurred by state governments (see Chart 2), there is considerable variability across states in terms of the financial burden of the jury system on taxpayers. Because states use various forms of taxation, including sales taxes, to finance their expenditures, state-level estimates of the individual cost of the jury system vary on a per capita basis. Using census population data (Table 3), such estimates are presented in Chart 3. The highest burden can be found within North Dakota with a rate of $2.12 per person whereas the lowest burden can be found within Georgia with a rate of $0.09 per person. Though the burden per person does shift dramatically between states, the absolute amount remains very low.
This calculation is a lower bound estimate of what states spend. As mentioned earlier, because of limited data availability, mileage reimbursements and other incidentals such as meals for jurors could not be taken into account as there was no way to objectively quantify how much is spent on these items. However, the level of government spending and individual tax burdens are low. For instance, the state of New York alone granted $1,900,000,000 within its judiciary budget request for a single year of expenses[6]. This means that single state’s judicial spending overshadows the juror expenses of the entire country. This tax burden of less than $10 is also very low when compared to the 1.3 trillion dollars paid every year by individuals in Federal Income Tax (approximately $10,076 per taxpayer annually)[7]. In short, even if the true amount spent is triple what this lower bounds estimate is, these accounting costs are dwarfed by other government expenditures and taxes.
[1] Because laws governing exactly how much jurors are paid are complicated and often have multiple contingencies, the data that I am using contains best estimates of juror fee rates for each state.
[2] United States of America Embassy, “Jury Service in the United States,” Bureau of International Information Programs, 1 July 2009, http://iipdigital.usembassy.gov/st/english/publication/2009/07/20090706162635ebyessedo5.389911e-02.html#axzz44Dooegvy
[3] Gregory E. Mize, Paula L. Hannaford-Agor, and Nicole L. Waters, “The State-of-the-States Survey of Jury Improvement Efforts: Executive Summary,” Center for Jury Studies, 2006,
[4] United States Postal Service, “Business Price Calculator” USPS, 2016, https://dbcalc.usps.com/
[5] Kyle Pomerleau and Andrew Lundeen, “Sumary of Lates Federal Income Tax Data,” Tax Foundation, 22 December 2014, http://taxfoundation.org/article/summary-latest-federal-income-tax-data-0
[6] State of New York, “Judiciary 2016-2017 Budget Request Executive Summary,” State of New York, 2016, https://www.nycourts.gov/admin/financialops/BGT16-17/2016-17-UCS-Budget.pdf
[7] Internal Revenue Service, “Internal Revenue Service Data Book, 2012,” Internal Revenue Service, 2012, https://www.irs.gov/pub/irs-soi/12databk.pdf
Section 4: Opportunity Costs
In this section, I am concerned with finding the opportunity costs of the right to a trial by jury as opposed to a bench trial. The costs calculated within the previous section do not reflect the true economic cost of the right to a trial by jury because they do not fully compensate jurors for the time spent in trial. Furthermore, the previous calculation does not account for court personnel time spent in selecting a jury. To more accurately reflect this cost, we must calculate a separate estimation of opportunity cost. The first opportunity cost comes from jurors themselves. By taking six or twelve individuals and placing them within a jury box for the length of a trial, one impedes their ability to engage in other productive activities. Because the jurors would not be present at all during a bench trial, the entire trial time can be considered as a loss of productivity for the jurors. Court personnel also present an opportunity cost. However, judge and attorney time would be utilized throughout a bench trial and therefore must be calculated differently than juror time. To calculate this opportunity cost, we turn to the only section of the jury trial that is not present within a bench trial, voir dire or jury selection. Any time spent by court personnel within jury selection could be considered unique to the jury process and therefore an opportunity cost. To calculate this I would need to calculate both the amount of extra time that is used in a jury trial as well as place a value on that time. After calculating each individual loss, I would then calculate the sum of all the losses of time to calculate total opportunity cost.
The first item that can be calculated is the loss of productivity from the jurors themselves. Because they would not be in the courtroom otherwise, I can treat the entire duration of the trial as lost productive time. I can calculate the total number of days spent in trial in the same manner as I did earlier by multiplying the number of criminal trials by 5 and the number of civil trials by 4 (these averages include the process of voir dire within total trial length). I can then multiply this number by twelve (six for misdemeanors) because twelve jury members are present at each trial. Once I find the amount of time spent by jurors within the courtroom, I need a way to value that time. Because jurors are summoned randomly within each state, the state’s median income is an appropriate measure for the value of juror time. Because median income is not a perfect fit as attorneys are allowed to strike prospective jurors for various reasons[1], I also performed the calculations using the lowest quintile incomes and highest quintile incomes for each state to get a establish a range of possible values. Because these income statistics (Table 4) are yearly figures, I divide them by 261 (the average workdays within a year)[2] to get the value of a single workday. By doing this for each state, I can calculate that the value of the lost juror time is equal to approximately $615,500,000 when using lower quintile numbers, $1,457,850,000 when using median income, and $3,065,000,000 when using the highest quintile.
Courts also lose productive time because of the jury trial. For instance, the entire voir dire section of the trial would not occur without a jury trial because there is no jury to select. The time of the two attorneys, the presiding judge, and court personnel would not be used in voir dire if there was no jury. Though this time is explicitly billed to either the government or a client, this calculation is included within this section because that same time could be used for other cases. Therefore, I can consider this as a form of lost productivity. To calculate the amount of time lost, I can take the average time spent in voir dire by state (Table 5) and multiply it by the number of trials per state (Table 2). It is important to note that the average time spent in voir dire differs between civil and criminal trials, so these are calculated separately and added together for accuracy. By doing this for each state, I can calculate the amount of time spent in voir dire by state (Chart 4).
To find the value of this time lost in voir dire is more complicated than finding the juror value. I cannot use median income because the individuals working are not a representative sample of the state, but only a single profession. To solve this, reliable estimates of value of each profession are needed. By using the United States Consumer Law Attorney Fee Survey, I can find a reliable measure of value for attorney time by state. Likewise, I can use the National Center for State Courts’ Survey of Judicial Salaries to create a measure of value for a judge’s time by state (See Table 6 and Chart 5). While the attorneys’ time is already at the hourly level, the measure of the judges’ salary is yearly. To make this an hourly rate, I divide it by 2087 (average workweek hours in a year)[3] to establish an hourly rate.
Source: National Center for State Courts and Ronald L. Burdge
For court reporters and bailiffs, there is no data by state. However, the Bureau of Labor Statistics has stated that the hourly mean wage of bailiffs working in state and local government is $23.97[4] while the hourly mean wage of court reporters working in state and local government is $28.04[5]. By taking the total time in voir dire and multiplying it by each hourly value by state, I see that the time lost for attorneys is worth $213,484,000 and the time for judges is worth $24,894,000. Additionally, I can take the total time used in voir dire and multiply it by the national hourly wage for bailiffs and court reporters to find that the time is worth an additional $3,418,000 from their labor. The total labor cost of the court staff and attorneys that can be attributed to the jury trial is approximately $241,800,000.
Mailing costs should also be included within the total opportunity costs as employees of the US Postal Service use valuable time to sort and deliver summons. Unfortunately, it is impossible to calculate the exact amount of time devoted to these tasks. However, if we assume that postage covers the value of all resources used up in mailing a letter, we can utilize the total postage cost as calculated within the previous section as a rough estimate of the mailing costs. By adding the value of the juror’s lost time, the court personnel, and mailing costs, I can calculate that the total opportunity cost from the jury trial system is between $857,300,000 (using lower quintile) and $3,306,000,000 (using highest quintile). We can also show how much each state contributes to the opportunity cost calculated (Table 7) and the opportunity cost per trial by state (Table 8 and Chart 6). Like the explicit cost calculated above, this range is a lower bound estimate as it assumes that there are no losses of time for court personnel or attorneys except for voir dire. Even though procedures besides voir dire are identical between bench and jury trials, bench trials tend to take a fraction of the time that a jury trial takes[6]. This is because judges are familiar with legal terms and procedures and they do not have to be explained like they do to a jury. This loss of productivity is impossible to calculate as there is no objective way to measure exactly how much time could be saved by having a bench trial[7]. Likewise, this calculation assumes a minimum number of personnel (one judge, one court reporter, one bailiff, two attorneys). However, some trials do have additional bailiffs or attorneys. For instance, multiple attorneys working on a single side is not uncommon, especially within civil cases. The time lost for additional personnel is not counted in this calculation. However, given the relative size of courtroom personnel losses to the juror loss, it is likely that the true productivity costs are not far from this estimate.
[1] Sherilyn Streiker, “Jury Selection in Criminal Cases,” NOLO, 2016, http://www.nolo.com/legal-encyclopedia/jury-selection-criminal-cases.html
[2] US Office of Personnel Management, “Pay & Leave,” OPM, 2016, https://www.opm.gov/policy-data-oversight/pay-leave/pay-administration/fact-sheets/computing-hourly-rates-of-pay-using-the-2087-hour-divisor/
[3] US Office of Personnel Management, “Pay & Leave,” OPM, 2016, https://www.opm.gov/policy-data-oversight/pay-leave/pay-administration/fact-sheets/computing-hourly-rates-of-pay-using-the-2087-hour-divisor/
[4] Bureau of Labor Statistics, “Occupational Employment and Wages: 33-3011 Bailiffs,” United States Department of Labor, May 2015, http://www.bls.gov/oes/current/oes333011.htm
[5] Bureau of Labor Statistics, “Occupational Employment and Wages: 23-2091 Court Reporters,” United States Department of Labor, May 2015, http://www.bls.gov/oes/current/oes232091.htm
[6] Theodore Eisenberg and Kevin M. Clermont, “Trial by Jury or Judge: Which is Speedier?,” Cornell Law Faculty Publications, Paper 228, 1996, http://scholarship.law.cornell.edu/facpub/228
[7] If I assume that a bench trial would allow courts to finish twice as many trials (as the Eisenberg/Cermont article suggests), this would be equivalent to an additional $2.4 billion of value (number of trials times court personnel value for average trial length) provided by court personnel. However, the article also mentions that bench trials tend to face more delays before trial, disrupting efficiency. It also only utilizes the average length of federal trials rather than state trials. Therefore, it is left out of the main calculation but it is an interesting side point.
Section 5: Non-Quantifiable Costs
In calculating the above estimates, there are several costs, both explicit and implicit that cannot be quantified. Although these factors are unmeasurable, they should be mentioned. For instance, throughout my calculations, I have ignored the value of time of individuals who were summoned and not utilized within a jury and solely focused on sworn jurors. Unused jurors are costly. The Center for Jury Studies, calculated that a single unused juror could cost the American taxpayers between $800 and $1000 in administrative costs, jury fees, lost income, and lost productivity[1], a hefty price tag for a wasted resource. Within this study, the CJS goes on to state that “costs for poor juror utilization are substantial.” Because of the unpredictability of the jury summoning system, there are jurors who are summoned but not impaneled. This presents a separate unique cost that cannot be calculated.
Another effect of having a jury trial system is that it is slower than a bench trial system[2]. As mentioned earlier, a jury trial takes almost twice the time of a bench trial[3]. An effect of each trial taking longer means that fewer trials are finished per year. This in turn causes case buildup and backlog. Defendants who cannot post bail can find themselves imprisoned for a substantial period of time awaiting a trial. This is exactly what happened to Kalief Browder in New York. He was jailed on Rikers Island for over three years awaiting his trial. Eventually, the charges against Kalief were dropped[4]. Being jailed for a substantial period of time without a trial conflicts with another constitutional right, the right to a speedy trial. Human rights aside, people being jailed for a longer period of time is another cost to productivity. This is another cost of the jury trial system that cannot be quantified.
Another issue that is brought up, but difficult to quantify, is the potential cost of the jury system. As mentioned previously, the calculations within this paper reflect the actual number of jury trials rather than the potential number of jury trials. Most cases never make it to trial as they are settled out of court, settled with a plea bargain, etc. If all cases that were eligible to go to trial actually did, the number of jury trials would go from approximately 144,000 per year to 27,000,000 per year (see National Center for State Courts data on incoming caseloads). If we assume all these trials went to a jury trial with the same associated expenditures and opportunity costs, costs would go up to approximately $28,000,000,000 in government accounting costs and $350,000,000,000 in opportunity costs. However, the current court system could not handle this many jury trials. For example, there would also have to be 320,000,000 jurors serving each year, roughly equivalent to the entire US population.
This has interesting implications as having the right to a jury trial is dependent on the vast majority of eligible cases not having one. As mentioned earlier, this is most certainly the case with only 144,000 cases of 27,000,000 eligible cases being tried to a jury, a utilization rate of approximately half a percent. This is because of the large number of guilty pleas and settlements that take place within our court system. Currently, over 97% of criminal trials are resolved with a guilty plea[5] while 97% of civil trials are settled out of court[6]. At first glance, this would seem to devalue the benefits from the right to a trial by jury as most people are choosing to not take advantage of this right. However, these choices not to use the right to a trial by jury could come from perverse incentives. For example, the average sentence for federal drug offenders who entered a guilty plea was only five years and four months while the average sentence for federal drug offenders who faced a trial is sixteen years[7]. Obviously, far lower sentences being offered through guilty pleas incentivizes giving up the right to a trial[8]. This low utilization of the jury trial does not mean that the jury trial is not beneficial, but instead highlights the pressure that is put on defendants to plead guilty. This is an issue that is beyond the scope of this paper, but should still be brought up.
[1] Paula Hannaford-Agor, “Saving Money For Everyone: The Current Economic Crisis is an Opportunity to Get Serious About Improving Juror Utilization,” Center for Jury Studies, 2009, http://www.ncsc-jurystudies.org/~/media/Microsites/Files/CJS/What%20We%20Do/SAVING%20MONEY%20FOR%20EVERYONE.ashx
[2] As mentioned in footnote 25, bench trials face more delays than jury trials (the time between indictment and trial is longer) while the actual process of a trial is shorter in a bench trial. In most cases, delays are not considered case backlog because they originate from the parties in a trial rather than the court.
[3] Theodore Eisenberg and Kevin M. Clermont, “Trial by Jury or Judge: Which is Speedier?,” Cornell Law Faculty Publications, Paper 228, 1996, http://scholarship.law.cornell.edu/facpub/228
[4] James C. McKinley Jr, “Calls Mount for Changes to Speed Criminal Cases to Trial,” New York Times, 17 June 2015, http://www.nytimes.com/2015/06/18/nyregion/calls-mount-for-changes-to-speed-criminal-cases-to-trial.html
[5] Matthew T. Mangino, “How Plea Bargains Are Making Jury Trials Obsolete,” The Crime Report, 4 January 2014, http://www.thecrimereport.org/viewpoints/2014-01-how-plea-bargains-are-making-jury-trials-obsolete
[6] Phoenix Business Journal, “Government Survey Shows 97 Percent of Civil Cases Settled,” Phoenix Business Journal, 27 May 2004, http://www.bizjournals.com/phoenix/stories/2004/05/31/newscolumn5.html
[7] Human Rights Watch, “An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty,” Human Rights Watch, 5 December 2013, https://www.hrw.org/report/2013/12/05/offer-you-cant-refuse/how-us-federal-prosecutors-force-drug-defendants-plead
[8] It is important to note that in this scenario, the simple right to a trial, bench or jury, is being given up. Therefore, we cannot seem to talk about a threat to being tried to a judge vs a jury as trials altogether are being avoided.
Section 6: Conclusions and Brief Benefit Analysis
The key finding of this paper is that the jury trial system costs at least $131,791,000 in government accounting costs[1] and at least $1,707,916,000 in opportunity costs. It is important to note that these two costs are separate types of costs and cannot be added as there would be a partial double counting. It is also important to reiterate that both of these costs are lower bound estimates. Another key finding that originates from these calculations is the difference between the amount paid by state governments and the actual opportunity cost as the principle behind the government expenditures is to compensate jurors for the opportunity costs of serving on the jury. However, the amount paid by the government is miniscule when compared to the actual cost. Another finding is that, although these may seem like very large sums of money, they are dwarfed by the scale of the United States economy. For example, I calculated earlier that the largest extra tax burden on the individual level was a mere $2.12. As mentioned earlier, a single states’ judicial budget is almost twenty times the national yearly expenditure while the average American pays almost ten thousand times more tax in income tax alone. Similarly, when I look at the productivity loss of 1.8 billion dollars (assuming median income), this is overshadowed by the total productivity within US as the US GDP is 17.4 trillion dollars[2]. Even if the loss of productivity was taken directly out of our GDP, it would only be a meager 0.01% loss or a GDP per capita loss of $5.66. In short, the current cost of having the right to a trial by jury appear to be very modest.
Generally, within economics, one compares a cost to the benefits received to determine whether an action is efficient. Obviously, when the bill of rights was originally passed, it was seen as having a benefit. For instance, within the Anti-Federalist papers, Brutus (likely Robert Yates) voiced his concerns about this right. He stated that “no man is secure of a trial [without this right].”[3] He goes on to voice strong opposition to appellate bench trials that would take place within the proposed constitution[4]. Likewise, at the time of the creation of the constitution, all thirteen states had declared independently that “in all controversies at law, respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable.”[5] In economic terms, the early states of America believed that this right provided an immeasurable benefit.
However, the benefits received from this right may have changed since the inception of the United States. For example, as mentioned earlier, very few individuals in modern times who are eligible to use this right actually utilize a trial by jury. To attempt to quickly calculate the modern benefit of these rights, I performed a quick survey of college students and professors in a preliminary attempt to quantify willingness to pay for the right to a trial by jury. I asked each individual taking the survey whether they would be willing to bear $5 in extra taxes to maintain the right to a trial by jury, then $50, then $100, followed by $1000. I received a total of 44 responses (See Table 9), with the most common response being that the individual would be willing to pay $100, but not $1000. Only 2.2% of participants reported a willingness to pay that is less than the estimated cost per taxpayer. Even if one assumes an actual cost of ten times the estimated cost, fewer than 10% of participants would have an issue. Although this survey is just a preliminary venture into the calculations of benefits from the right to a trial by jury, it supports my original conclusions that the costs of the right to a trial by jury are small when compared to the benefits.
[1] The government costs that were calculated are not the full accounting cost incurred by the jury system. For example, if an employer pays a salaried employee for his time spent on a jury, this is a separate accounting cost. This is an example of a private accounting cost that is incurred, but not calculated within this paper due to lack of data.
[2] World Bank, “Data: United States,” The World Bank, 2016, http://data.worldbank.org/country/united-states
[3] Brutus, “The Anti-Federalist Papers #2,” Constitution Society, 1 November 1787, http://www.constitution.org/afp/brutus02.htm
[4] It is important to note that the constitution that Brutus was arguing against did not have the bill of rights and therefore did not guarantee the right to a trial by jury (yet).
[5] Qtd in Brutus, “The Anti-Federalist Papers #2,” Constitution Society, 1 November 1787, http://www.constitution.org/afp/brutus02.htm
Data Appendix
Sources within Thesis:
Gregory E. Mize, Paula L. Hannaford-Agor, and Nicole L. Waters, Center for Jury Studies
Theodore Eisenberg and Kevin M. Clermont, Cornell Law
Bertel Sparks, The Freeman, The Foundation for Economic Education
Michael Saks and Mollie Marti, Law and Human Behavior
Mariah Wojdacz, Legalzoom
Internal Revenue Service
Steve Bieda, Macomb County Clerk
The State of New York
James McKinley Jr, New York Times
Sherilyn Streiker, Nolo
Patrick McKeown, Esq.
The Honorable Robin Darr
Kyle Pomerleau and Andrew Lundeen, Tax FoundationUS Bureau of Labor Statistics
US Embassy, Bureau of International Information Programs
US Office of Personnel Management
US Postal Service
US Supreme Court, Duncan v. Louisiana
Tommy Witherspoon, Waco Tribunal
Joe Palazzolo, The Wall Street Journal
World Bank
Tables with raw data can be found below if you want to look or if it sounds interesting.
If you've made it this far, I hope you enjoyed. This was quite the project.