Melissa Harris-Perry: I'm Melissa Harris-Perry, and this is The Takeaway. In California, if you're summoned and then selected to serve on a jury, you're currently paid $15 a day, and that starts the second day of service. With some cases lasting weeks, many low-income or self-employed or gig economy workers, they simply have to opt-out of jury service due to financial hardship.

Now, the result is that juries are wealthier and less racially diverse than the communities they serve, and the defendants whose cases they hear, but a new pilot program in San Francisco is trying to change all that. The Be The Jury pilot program will start paying $100 dollars a day to jurors who meet particular financial criteria. For more on this, The Takeaway spoke with Elizabeth Hilton, a senior attorney at the San Francisco Public Defender's Office. She drafted Assembly Bill 1452, which establishes the pilot program in San Francisco. The bill was signed into law by California Governor Gavin Newsom last week, and is set to start in January 2022.

Just a side note, Elizabeth Hilton, well, she's also my big sister. In the interest of journalistic integrity, I pass the mic to my WNYC colleague, Kai Wright, who's the host of the show United States of Anxiety.

Kai Wright: Let's just start with some basics here about how things exist now. Right now, what happens in San Francisco if someone who is part of, say, the gig economy, gets called in for jury duty, how much are they compensated?

Elizabeth Hilton: All people in California are only compensated $15 a day for their jury service starting the day after their first day, but what happens is most people who are part of the gig economy, who won't get paid for jury service, most of them, especially when it's a trial that takes longer than a few days, which most trials do, they usually ask for an economic hardship, which means that they tell the judge, "Hey, I just can't afford to not get paid for jury service. May I please be excused?" Many of the members of the gig economy here in San Francisco don't even make it onto a trial.

Kai Wright: Because first off, $15 a day is just silly. What does that then do if those folks aren't making it onto a trial? What does that do that little bit of compensation to the jury pools in San Francisco?

Elizabeth Hilton: What we have been seeing, especially in the public defender's office, and I've been here for 26 years, we're seeing our jury pools become wealthier and wider because especially with the gig economy here in San Francisco, 78% of the gig workers in San Francisco are people of color, people who are from small businesses who don't get paid by their employers. Most of them don't even make it into the pool so that they can be selected. The resulting juries, especially those juries for more serious complicated cases like homicides or three strikes cases, cases that last up to six weeks, we're seeing those jurors ultimately becoming wealthier and wider here in San Francisco.

Kai Wright: Some people might be like, "Okay, so what difference does it make?" Just on this really simple point about jury of your peers, why does it make a difference to you? For if even setting aside race, for low-income people not to have someone who is of their peer in terms of class on their jury. Why does this make a difference in a real-world way?

Elizabeth Hilton: I think it's really important because jury of our peers it should reflect both the economic and racial diversity of our community. People see situations through different perspectives, and so we need a wide variety of perspectives on a jury when evaluating a case. I had a trial in the fall of 2018 that involved a Black man who was homeless, meth addicted, who got into an altercation with another man and ended up hitting him on the head and that man died. Trying to explain what it feels like to be a homeless, drug-addicted man of color in San Francisco, it's really difficult for people who live in Pac Heights or who have never had to worry about where their next meal is going to come from. For them to understand that perspective, we need a variety of perspectives in order to really analyze cases and understand the stories of people who are struggling.

Kai Wright: I gather that that case you're describing was one of the things that sort of sparked this idea for you about higher compensation for low-income jurors, and is it the case that part of it is that just the trials are taking a longer time in order to-

Elizabeth Hilton: Yes.

Kai Wright: Why is that?

Elizabeth Hilton: It's the unintended consequence of becoming a better funded public defender office here in San Francisco. Cases are becoming more complicated because all of the police officers now have body-worn camera video. We have more technology. We have more science, DNA, ShotSpotters. We are able to hire experts. There's defense experts and prosecution experts.

We have more resources for investigation, and so because of that, we're able to put on a better defense, and because of that, cases just take longer. I've been doing complex cases for the last seven years, and I have yet to have a case that takes me less than six weeks to try. We compensate people if we take away their property, but if we take their time, we don't compensate them for their time. We want people to be able to concentrate on the jury, on the issues, on the evidence, all the experts that we're presenting. We don't want them to be distracted by how am I going to make this month's rent.

Kai Wright: At six weeks and $15 a day, I can't imagine myself even. There's no way I could do six weeks at $15 a day if that's all I was making to be on a jury.

Elizabeth Hilton: The majority of the people are compensated by their employees. Most government employees, most large businesses, people with good benefits, they're not just getting $15 a day. They're getting compensated by their employee, because in San Francisco or in California, an employer has to allow you to serve on a jury, but they don't have to compensate you. In 2019, we had almost 4,000 people in San Francisco asking for an excuse based on economic hardship. This is really what that bill targets is to try to allow those 4,000 people that could not serve because of an economic barrier to bring them onto the jury and to at least allow them the opportunity to be chosen to serve.

Kai Wright: How will it work? How will the program work if it goes into effect?

Elizabeth Hilton: It's rather simple. We're hoping to get a lot of information out there so that jurors are aware of this compensation project, but essentially what will happen is if you tell a judge where you say I can't serve because I'm not going to get paid, then the judge will say, "Hey, there's this compensation that you can apply for." If you are 80% or below the median income in San Francisco, and you meet one of the four following criteria, your employer does not compensate you for jury service, or your employer does not compensate you for the estimated duration of jury service, or you're self-employed or you're unemployed, then you can apply and you get $100 a day for every day that you serve on jury service.

That includes jury selection, as well as if you're ultimately chosen to be on the jury for your time serving as a juror on that particular trial, and it will only at this point target criminal cases, because we want to see, at the end of the pilot, we want to look back and see whether it worked, how many people were able to serve as a result of this compensation, and what did these people look like? Did we really truly increase both the economic and racial diversity of our jury panels?

Kai Wright: That's the big question. It's $100 a day which is what the program would offer. That is below minimum wage in California.

Elizabeth Hilton: It's below minimum wage in California and even more below minimum wage in San Francisco.

Kai Wright: How did you arrive or how did the state arrived at that number, and is there concern that it wouldn't be enough?

Elizabeth Hilton: We actually started brainstorming this pilot project way back in March of 2020, right at the beginning of the pandemic. Our little racial justice subcommittee at the public defender's office started designing this pilot project together, and then from there, we brought in the San Francisco Financial Justice Project, which is from the Treasurer's Office, and they were able to raise philanthropic funds, and we talked a lot with them, and we also then brought in the district attorney's office, we brought in the private bar, to brainstorm what we thought this pilot project should look like, and we settled on $100 as being a nice round number close enough to what minimum wage would look like. Because minimum wage at $8 an hour or eight hours a day, it would be more, but jurors usually typically serve about six or seven hours. We were taking into account, "$100 seem like a nice, good round figure. Let's see how that addresses the issue."

Kai Wright: It's interesting because I think most people when we think about juries and inequity in juries, we think about the ways that lawyers, prosecutors, in particular, will go in and game the jury pool. That's what we've heard about. That they go in and they find the young Black man that they don't think should be on the jury for a police shooting case, for instance. I don't think many of us think about this sort of economic hardship that would keep people out of it. Have you struggled to get people to understand this element of it? How does it relate to the thing we normally think about in terms of prosecutors or other lawyers gaming the demographics of a jury?

Elizabeth Hilton: That's a great question. I think the way to increase racial diversity and economic diversity on a jury is a three-part process. It's a three-prong approach. It's very exciting just by happenstance that all three of those prongs will be addressed in January of this year. It's very exciting. The very first aspect is casting your net wide enough to actually bring in jurors. SB-592 is adding the franchise tax board to voter roll. We're going to get more people being summoned for jury service.

Then our little pilot project is going to target getting them from being called actually into the room where the attorneys can start selecting them. What I'm focusing on is I want to get them into the room to have them have a chance to be selected. The part that you're talking about, which was very well-written about by Elisabeth Semel in her book, Whitewashing the Jury Box, that's preventing the district attorneys from using race-neutral questions to get rid of jurors of color.

Interestingly enough, AB 3070 is going to make certain criteria for excusal presumptively invalid because those have traditionally been race-neutral criteria that have been used to systematically remove people of color. For example, let's say someone's had a negative interaction with police officers. The prosecution will say, "I want to get rid of that person," and that's race-neutral, but that will become a presumptively invalid reason to excuse someone under AB 3070, which will also go into effect in January of 2021. We're really going to be targeting all three stages to get more people of color into jury panel.

Kai Wright: Just to clarify in case listeners didn't follow that. When you say race-neutral, it's things that sound like they're race-neutral, but in fact, sort people out by race. Just to clarify.

Elizabeth Hilton: Absolutely.

Kai Wright: It's a pilot for that's coming out of the San Francisco Public Defender's Office, but this is also something that might expand nationally. I imagine you hope. What else do you think supporters of it are likely to encounter if it can grow from here?

Elizabeth Hilton: Obviously, I think probably the number one obstacle is going to be cost because anytime we're paying people more money, there's got to be a price tag. The reason why I think this passed so easily is because our pilot, the Treasurer's Office did a fantastic job of getting philanthropic funds to fund it. It's fully funded. It's not going to cost the court or the city anything to do this pilot. If we were to make it permanent, if we were to expand it to California, to the nation, obviously it would come with a price tag. We just have to convince people that having jurors that more adequately reflect our communities, racial and economic diversity is worth the cost.

It could also be, too, that if we're paying some jurors compensation and not others, there may be some people that look at that like, "Well, isn't that unfair?" If you're thinking about it, isn't it unfair that someone can't serve on a jury because they can't afford it? You have to look back to 1875 when the Civil Rights Act extended jury service to people of color, ex-slaves. Then some of the southern states passed laws, making it economically prohibitive for people of color to serve. You had to pay. Isn't this the same thing in reverse?

Kai Wright: That's a good point. Elizabeth Hilton is an attorney at the San Francisco Public Defender's Office. Elizabeth, thanks so much.

Elizabeth Hilton: Thank you. It was a pleasure.

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