After the grand jury decisions in the cases of Eric Garner and Michael Brown, both of which declined to present formal charges against two police officers involved with their deaths, a growing movement has begun to call for changes in the centuries-long legal tradition originally meant to shield the people from the power of the state.
This week, Rep. Hank Johnson (D) of Georgia unveiled a number of proposed reforms to the federal grand jury process, presenting a bill that prohibits the use of out-of-public-view grand jury hearings when it comes to cases where a police officer has killed a citizen. The bill also would require an outside prosecutor to investigate officers in such cases.
The grand jury decisions in the cases of Mr. Garner and Mr. Brown, two unarmed black men who died at the hands of police, have prompted a national debate in basic civics. What is the purpose of these mostly secret grand jury proceedings, and why are police so rarely indicted?
The debate, too, comes amid angry street protests that continue across the nation – protests that have drawn gestures of solidarity from NBA and NFL players. And on Thursday, 150 African-American congressional staffers and representatives, led by Senate chaplain Barry Black, walked off the job, also to express solidarity with the protest movement and call for changes in the criminal justice system.
But Representative Johnson’s proposed reforms include the two most discussed by critics: making the grand jury process more transparent and using outside, independent counsel instead of local district attorneys when it comes to seeking indictments for police officers.
“The goal of any reforms should be to give the grand jury more independence from prosecutors, and also to make the system more transparent,” says Harvey Silverglate, a criminal defense and civil liberties lawyer in Boston and the author of "Three Felonies a Day: How the Feds Target the Innocent." “There should be a presumption that grand jury proceedings are either public, or at the end of the process, whether it’s an indictment or not, the proceedings are opened up so that anybody wanting to look at the transcript or look at the evidence can do so.”
In the wake of the Garner and Brown decisions, states such as New York are considering reforms, including having the attorney general step in to oversee cases where a police officer has killed a citizen. Earlier this year, Wisconsin Gov. Scott Walker signed a first-in-the-nation law mandating that two outside prosecutors be appointed in cases where someone has been killed by the police, and that a report be made public if no charges are brought. If passed, Johnson's bill would take such reforms to the federal level.
The Fifth Amendment of the US Constitution requires a grand jury indictment for the federal government to bring serious charges against citizens, making reforms more than just a change to federal law. This applies only to federal prosecutions, however, and states have their own varying grand jury rules.
Reformers point out that grand juries have become virtual rubber stamps for the wishes of prosecutors – said to be able get a grand jury to indict “a ham sandwich” if they wished. In 2010, federal prosecutors sought indictments in about 162,000 cases, according to the US Bureau of Justice Statistics. Grand juries returned indictments in all but 11 cases.
The debate is occurring at a time when it appears that fatal shootings by police are on the rise. According to FBI statistics, police officers across the nation shot and killed 461 felony suspects last year, the most in 20 years.
But this number is based on the limited number of local law enforcement agencies who voluntarily submit their numbers to the FBI, many observers point out. And since there is no federal requirement to keep track of such statistics, the numbers could be much higher. According to a tracking database at killedbypolice.net, police officers have killed 1,039 citizens so far in 2014 alone.
On average, four police officers are indicted for these killings each year, according to a study by Bowling Green State University in Ohio.
Such statistics, along with the protests sparked by the Garner and Brown decisions, have driven nationwide scrutiny of the grand jury system, and spurred proposed reforms like those of Johnson.
Over the centuries, the theory of the grand jury was to provide a bulwark against the power of the state. As Chief Justice Earl Warren wrote in a Supreme Court case, the grand jury is a citizen buffer serving as “primary security to the innocent against hasty, malicious and oppressive prosecution.”
And in order to further protect the reputations of those brought before grand juries, which only determine whether the state has “probable cause” to make an accuse a person of a serious crime, these proceedings have for centuries been mostly out of public view and kept secret – another protection for the innocent.
“But on balance, I think that transparency is more important than the protection of privacy today,” says Mr. Silverglate. “I do think that we’re in an age when when transparency has triumphed over privacy ... and I have found that [Supreme Court Justice] Louis Brandeis’s dictum, that ‘sunlight is said to be the best of disinfectants,’ was right when Brandeis said it and is right today.”
In Missouri, District Attorney McCulloch was permitted by state law to release all of the evidence he presented to the grand jury in the case of former Ferguson Police Officer Darren Wilson – an unusual step in an unusual case that took nearly four months.
In New York, however, Staten Island District Attorney Daniel Donovan was only permitted to release limited, mostly logistical information in the case of New York Police Officer Daniel Pantaleo.
Critics also contend that local district attorneys work hand-in-hand with local police, and have little incentive to pursue indictments against the officers on which their work depends. And, given how easy it is to secure indictments, the relative dearth of police indictments indicates a problem, critics contend.
Still, some observers are less enthusiastic about the appointment of special, independent counsels to investigate police wrongdoing, citing the abuses of independent investigations in the past and their own lack of accountability.
“I am in favor of taking local cases out of local district attorneys and putting them in the hands of attorney generals,” says Silverglate.
This week, New York Attorney General Eric Schneiderman proposed as much, asking the governor to grant him this power with an executive order.
“State attorney generals are high elected officials,” Silverglate continues. “If you can’t trust the elected attorney general, you can't trust the government. At a certain point, you've got to trust the people you vote for.”