The case for grand jury abolition

Jim Harrington from the Texas Civil Rights Project authored a column in the SA Express-News arguing for abolition of grand juries in Texas, a suggestion your correspondent also recently proposed. The article opened thusly:

The United States has had to discard anachronistic institutions throughout its history, and it is now time to bury another — the grand jury. Most other countries based on English common law long ago jettisoned this unworkable relic of the past. And only about half of the states in the nation still use grand juries.

The Ferguson and Staten Island grand juries that recently cleared police in the killings of Michael Brown and Eric Garner, respectively, underline starkly how perverted the grand jury system has become. There is no way to reform the system; all cries to reform it are “pie in the sky” and inherently doomed. Grand jury reform is impossible. Abolishment is the only viable alternative if we want a more just system.

The grand jury originally had two functions. One was to shield people against the arbitrary government power. The other was where individual citizens brought criminal cases they wished to prosecute against someone else, and the grand jury would give the go ahead or not. This was before the institutional development of district attorneys and prosecutors in our criminal justice system.

In modern times, the grand jury has become an irrepressible tool of the district attorney. With the exception of a few blips here and there, prosecutors manipulate and bend the grand jury to their will. After all, the prosecutor tells the grand jurors what needs to be done “in the interest of justice” and presents and tailors the evidence and witnesses accordingly — all in a secret, non-transparent proceeding, without the customary due process protections for the accused. As the saying goes, any prosecutor, who so desires, can “indict a ham sandwich.” An overstatement, perhaps, but close to the truth.

The American grand jury has become the new “Star Chamber,” which was the English monarchy’s secret court system that wrought injustice and abuse of power until abolished by Parliament in 1641.

The American grand jury is its reincarnation, and should meet similar demise.

Especially in instances of police violence, the grand jury can never function with justice. District attorneys are beholden to the police to work up cases they prosecute and upon which they conduct their law and order campaigns for re-election. It is an understandable symbiotic relationship, but one which always will misfire in allegations of police violence or abuse.

Moreover, police unions will put their votes and money behind district attorney candidates who support them, not prosecute them.

Grand juries have become a hand-washing machination for prosecutors. They hide behind a grand jury decision in favor of the police, even though they have manipulated its inevitable outcome. 

See also similar arguments made in Slate (Dec. 9) regarding why grand juries should be abolished. Others argue for keeping them but requiring greater transparency. (If we're going to keep them, personally I think recordings or transcripts should become public records once the grand jury's term ends.)

In a related story, the Houston Chronicle reported Dec. 19 that "Hispanic representation on Harris County grand juries far below population." The paper found that not only were Hispanics and Asians underrepresented but people from law enforcement fields were overrepresented. "The Chronicle found that 58 percent of grand juries had at least one person with law enforcement or legal experience. Almost a third of grand juries had two people meeting that criteria."