Abolish the grand jury.
Welcome back! Yesterday many of you emailed with one question: is there anything we CAN do to block this Supreme Court appointment? And aside from calling your senators, we don't have much power to exercise as citizens. But we can get more involved in other aspects of our justice system, which matters more than you may think. I was going to publish this next week, but I feel Jami's thoughtful analysis of the grand jury is a strong follow-up from our conversation yesterday. Read and let me know what you think.
Tomorrow is Study Hall – our weekly reflection on the topics we unpacked this week (and there was a LOT we covered). Send me your questions / thoughts by responding to this email.
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TAKE ACTION
Write to your state legislators asking to abolish the grand jury process for criminal indictments (Connecticut and Pennsylvania already have!)
Spread awareness about the injustice in the grand jury system, as many people do not understand how it works
Reflect: What privilege(s) may you have based on your identity that shapes your understanding of the criminal justice system?
GET EDUCATED
By Jami Nakamura Lin (she/her)
Many of us are still reeling from the grand jury decision that brought no charges against the police officer that killed Breonna Taylor, as we covered in a previous newsletter. And yet, of course, many of us were not surprised. We’ve seen this before. We’ve seen how the grand jury cleared the officer that killed Michael Brown in Ferguson (NYTimes), and how things haven’t changed since then. We’ve seen how rarely officers are convicted even if they do get charged (FiveThirtyEight). We have learned not to expect justice from our legal system.
“The police and law were not made to protect us Black and Brown women.”
Tamika Palmer, Breonna Taylor’s mother (VOA News)
Clearly, the grand jury process failed Breonna Taylor. But what is important to note is that it’s not that this grand jury failed her, it’s that all grand juries are inherently structured in a way that is unjust. At a grand jury, there are no defense attorneys present (that is, the defendant does not have access to counsel). There is no judge. The prosecutor is the one asking all the questions, the one who decides what to charge the defendant with, what sentencing to recommend, and whether to offer a plea deal (Harvard Law Review). In other words: all the power lies with the prosecutor, and the prosecutor works for the government as a district or state’s attorney, or in Breonna Taylor’s case, Kentucky Attorney General Daniel Cameron (NPR).
A grand jury differs in many ways from a trial jury. A trial jury is what we think of when we think of the word “jury”: a group of people that decides whether or not the defendant is guilty. This takes place in a courtroom with a judge, with lawyers for both the defense and the prosecution (US Courts). The trial itself is usually public, and the defendant’s counsel can call its own witnesses.
On the other hand, a grand jury happens before a trial. It consists of a group of 16-23 people that decides whether or not there is enough evidence to believe that the defendant has committed a crime (US Courts). As Stanford University law professor Robert Weisberg explains, “A grand jury doesn’t decide guilt or innocence. It decides the preliminary question of whether there’s enough evidence to justify [sending] him to trial in the first place” (Louisville Public Media). It’s an additional step, so it’s used for higher-order crimes. About half the states require a grand jury to press felony charges. In the other half, it’s up to the prosecutor whether to require a grand jury or whether to skip to a trial (FindLaw).
People have been concerned about the injustices inherent in the grand jury system for many years. England, from whom we inherited the system, by and large stopped using the grand jury in 1910s and formally abolished it in 1933 (Journal of Criminal Law and Criminology); its other former colonies, including New Zealand, Australia, and Canada, all have done the same (Slate). The United States has kept this process despite the overwhelming evidence that grand juries “do not (and cannot) protect the accused” (Cornell Law Review).
But these police shooting cases show that the problem is more complex than that. In Breonna Taylor’s case, the police officer was the accused (NPR). And yet he was the one protected by the process, because the grand jury system protects who the prosecutors choose to protect. In most capital criminal cases, they have no motivation to protect the accused—except when the accused are the police.
“Prosecutors work with police day in, day out, and typically they’re reluctant to criticise them or investigate them,” law professor Samuel Walker told The Guardian. In the Guardian’s analysis of 2015 police killings, they found that in one-third of the killings that were ruled as justified “the criminal inquiry work was done by the officer’s own police department, meaning the evidence used to decide if an officer should be prosecuted was prepared by the officer’s co-workers” (The Guardian).
"[Grand juries] are said to be 'putty in the hands of the prosecutor.' In other words, the prosecutor really tells them what he or she wants and they will go along with it,” legal writer Joshua Rozenberg told the public radio newsmagazine The World. Because of the prosecutor’s power in a grand jury, he added: “It must be even easier [to get an acquittal] if that is what the district attorney may actually want." And there are many other problems with the grand jury process that we don’t have space for here. (Harvard Law Review presents a thorough overview of other problems although they call for reform, not abolition.)
Kentucky Attorney General Daniel Cameron was supposed to be prosecuting the police officers but his actions show that he was defending them. “I never had faith in him,” Breonna Taylor’s mother, Tamika Palmer, wrote (NBC News). “I knew he had already chosen to be on the wrong side of the law the moment he wanted the grand jury to make the decision.” The court even released the tapes of the usually-secret grand jury proceedings because of a juror’s complaints against Daniel Cameron (NPR).
Cameron claimed the jurors decide independently of the prosecutor, but that is clearly not the case. In grand juries, the prosecutors shape the case: Cameron had only recommended the charge of wanton endangerment (CBS News). He claims he did this because he would not be able to prove other charges, were the case to go to trial—but convening a grand jury is an easy way to pass the blame onto jurors while also not holding the police accountable.
While a lot of energy is now devoted to defunding and abolishing the police and prisons, we also need to focus on the legal institutions that link these two systems. We need to eliminate the grand jury and reimagine our legal system in general. Though only an amendment to the Constitution could remove the grand jury on a federal level, many states could eliminate it through legislation (Al Jazeera). Connecticut and Pennsylvania have already abolished the use of a grand jury in criminal indictments (FindLaw), so I believe it is possible to make change, state by state.
So contact your legislators. Increase awareness. Promote understanding of the flaws in the system. The grand jury did not bring justice to Breonna, so we need to bring justice to the grand jury. It must be abolished.
KEY TAKEAWAYS
The grand jury is an inherently unjust system. It is a secret proceeding whose power lies in the hands of prosecutors who work for the government.
In one-third of “justified” police killings, the “evidence used to decide if an officer should be prosecuted was prepared by the officer’s co-workers” (The Guardian).
The grand jury did not bring justice to Breonna, but we need to bring justice to the grand jury. It must be abolished.
England and its former colonies have all abolished the grand jury system—except for the United States (Journal of Criminal Law and Criminology).
RELATED ISSUES
9/20/2020 | Make the justice system more diverse.
7/6/2020 | Abolish qualified immunity.
7/2/2020 | Remove police from our public schools.
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