On Aug. 9 2014, Darren Wilson, a police officer in Ferguson, Missouri, killed Michael Brown, 18, an unarmed African-American by shooting him twelve times. But on Nov. 24 a “grand jury” decided that the officer should not be charged for his action.
The shooting in August and the grand jury’s decision last month sparked protests all over the United States. Fueling the anger are deep-seated feelings in the African-American community that the grand jury system has been used consistently against them. Typically grand juries side with prosecutors against young African-Americans when they are suspected of committing crimes and rule against them when they fall victims to police brutality. Similar recent grand jury decisions in New York and other jurisdictions have only confirmed those feelings.
At the heart of the protests is the “grand jury” system, which is one of the peculiarities of the American legal system. A “grand jury” is used by prosecutors to assist them in deciding whether a case should go to trial or not. A grand jury is different from a “petit jury” or a “trial jury,” which is the regular jury that decides the guilt or innocence of a defendant. They differ in their functions, procedures and the way they are regarded by legal scholars and civil rights advocates.
Those who have studied in American law schools probably remember their first exposure to the grand jury system and subsequent bafflement about the longevity of this antiquated system that goes back to medieval times. The grand jury system came to America via British colonial rule and was later enshrined in the US Constitution for “capital, or otherwise infamous” crimes. However, Britain itself did away with grand juries over 80 years ago, as did other former British colonies. Within the US, while all 50 states still use trial juries, only about half of them use grand juries.
A grand jury consists of between 12 and 23 “ordinary” citizens, who are supposed to help the prosecutor decide whether to bring criminal charges against suspects. Lawyers and civil rights advocates believe that the grand jury system cuts corners when it comes to delivering justice. In the case of a trial jury, procedures are strict and controlled entirely by the judge, while before a grand jury anything goes, almost. For example, in grand jury investigations there are typically no attorneys present to assist the parties, while attorneys are required before a trial jury. The rules of evidence are also different: The grand jury system allows a lot of evidence that is typically inadmissible before a trial jury. Similarly, a grand jury can raise any question and can ask for any evidence it wants, while evidence before a trial jury is carefully chosen by each party and must adhere to a set of rules designed to ensure its reliability. And a trial jury is rarely given the opportunity to ask questions.
Grand jury critics say that juries have become little more than rubber stamps for prosecutors. For example, in 2010, federal prosecutors sought indictments in about 162,000 cases, according to the Bureau of Justice Statistics, and grand juries agreed with them on all but 11 cases. The rate of indictment is 99.99 percent, indicating that the grand jury has become a mere formality. The rates are similar in state and county grand juries.
The only exception that grand juries typically make is when the suspect is a police officer accused of brutality or use of excessive force, where they invariably rule in favor of the police, especially if victims are African Americans or members of other minorities.
According to a study by Bowling Green State University in Ohio, every year in the US, police officers kill about 1,000 citizens in the line of duty, but only four officers are indicted for causing gun-related deaths on duty. In some jurisdictions, grand juries have not indicted a police officer in a decade. In others, indictment average is about one percent.
There are many reasons for the failure of grand juries to deliver justice when it comes to African Americans in particular, but race is chief among them. In a society where racial tensions are common, stereotypical misperceptions could color a person’s judgment, making it difficult to rely on the grand jury system to decide guilt or innocence. Grand juries rule by majority, and that majority may be from one particular racial group.
The grand jury system was probably once useful in England, where communities were homogenous, but it lost usefulness in post-industrial America where preconceived notions against minorities cannot be ruled out.
Recent cases have convinced more people that the grand jury system is due for reform. In New York, where cases of police brutality and use of excessive force are common, there are renewed calls for reform, especially after a police officer in Staten Island choked to death Eric Garner, an African-American man, and the grand jury ruled in favor of the cop. One reform calls for creating a special prosecutor position to investigate police-related incidents. Another is to make the grand jury process and testimony more transparent.
In April, Wisconsin became the first state to adopt legislation requiring an outside investigation whenever a person dies in police custody. The new law requires a team of at least two outside investigators to lead reviews of such deaths and a public report to be released if criminal charges are not filed.
On Dec.1, President Barack Obama announced that the federal government would spend $75 million on body cameras for law enforcement officers, as one of the measures taken in light of the protests. Last September, shortly after the killing of Michael Brown in Ferguson, the US Justice Department launched an investigation of the city’s police to examine its use of excessive force and racial profiling.
While these measures may be useful, phasing out the outdated grand jury system is a key ingredient in any reform effort.
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