Monday, July 30, 2007

Jury Duty: Legit, or a Taking?

There may be problems with the jury system that we all understand, such as the cottage industry that has grown up around selection and manipulation.

But KL writes with a straight-up objection that is interesting. He was prompted by a piece in the NYT:

"Ann Blakely, the clerk of the Superior Court in Lee County, said sending
deputy sheriffs to find jurors at random was done very rarely, and only when
a judge was about to begin a case without enough jurors...Courts across the
country have been going to extraordinary lengths to get people to report for
jury duty, which many people would do almost anything to avoid."
(July 29, 2007)

As KL goes on to say, in his email:

The Constitution states that private property cannot "be taken for
public use, without just compensation." Given that "time equals money", the
current (trivial) compensation policy for jury duty arguably constitutes an
improper taking. Meanwhile, it is entirely possible that the cost-benefit
ratio of the current jury system is worse than the cost-benefit ratio of
alternative mechanisms of due process.

Reference is the 5th Amendment, of course:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

It is interesting that there is a trend, at the federal level, to rule against "commandeering" of state government officials for use by Federal agencies, or statutes (New York v. U.S., 1992, and Printz v. U.S., 1996, for example).

So, can local governments "commandeer" the time of private citizens for jury duty? Is this like a military draft (which presumably has some emergency justification, so there is a sufficient state interest to justify the "taking" of the body of soldiers), or is it something else? Why isn't jury duty commandeering, and subject to a bar as a taking?

Good one, KL.

(Postscript: Yes, I know commandeering in NY and PRINTZ is a 10th Amendment issue. But commandeering is also a form of taking; why isn't jury duty a taking, for that reason? We can force people to serve as jurors, but we have to offer fair compensation.)