Should We Get Rid of Grand Juries?

An illustration of Michael Brown next to his coffin. (Getty Images, BBC)

The failure of a grand jury in Ferguson, Missouri to indict Officer Darren Wilson in the shooting death of Michael Brown has dominated headlines recently. Most of this media attention has focused on the fires and looting in Ferguson, making for a morbid form of entertainment and social media discussions have endlessly argued if, and to what extent, race factored into the incident and the return of “no bill” by the grand jury.

Libertarians have long argued against the justice system in place in America today. Fellow SFL blog team member Jason Byas is even doing a series on this very topic. (See part 1 and part 2 from November, with parts 3-5 on the way.) In these two articles, he argues against any sort of punitive criminal law system in favor of a system of tort law which only provides for restitution. This would certainly be an ideal libertarian justice system, one that prevents individuals from being victims of aggression, while also not engaging in aggression itself.

A less drastic, yet still effective, reform is possible and achievable in light of the Ferguson tragedy: the elimination of grand juries. With its foundation in English common law, grand juries were gradually incorporated into the American legal system. Before the advent of American independence, grand juries were seen as a counter against the powers-that-be. Mark Kadish of Florida State University Law Review notes a 17th century example in which pro-Protestant grand juries in London refused to indict enemies of King Charles II, a Catholic, preventing the creation of a theocratic monarchy. The grand jury was thus seen as an institution “capable of being a real safeguard for the liberties of the subject,” not merely a tool for enforcing the dictates of central government.

Officer Darren Wilson.

In the Ferguson case, the grand jury was a nearly perfect antithesis to its early predecessor. It had nine whites and three blacks decide whether to indict Officer Wilson, and needed exactly nine votes to indict. That means that even if all three black jurors decided the officer should be indicted, they would still need to convince two-thirds of the whites in the grand jury that an indictment was warranted. The grand jury also operated drastically unlike almost any before it, allowing Wilson to testify and exculpatory evidence to be presented, both of which helped Wilson.

One similar case was argued before the U.S. Supreme Court in 1992. In United States v. Williams, Justice Antonin Scalia discussed the purpose and history of the grand jury. In his decision, he wrote:

It is the grand jury’s function not ‘to inquire… upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

This shows that although most criticism of the Ferguson jury has come from the left, even right-wing legal experts like Scalia would agree that the grand jury in this case greatly erred in allowing evidence and testimony from the defense when the same possibility is not afforded to almost anyone else. In fact, according to 2010 data, only 11 out of 162,000 federal cases failed to return an indictment. For police, however, it’s a much different story. In Texas, no Houston police officer has been indicted since 2004, and only one indictment was issued for 81 police shootings between 2008 and 2012.

While many talking heads in the media focus predominantly on race in their analysis of the Michael Brown shooting, another elephant in the room is the real culprit: a flawed justice system that does a disservice to all Americans, regardless of race. By analyzing the justice systems of other nations, especially the many that have abandoned grand juries, we can identify and implement a better way to ensure justice is secure for all Americans, whether or not they happen to be wearing a blue uniform.

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