It is time to abolish the grand jury system

On Jan. 6, a Texas grand jury indicted the state trooper who arrested Sandra Bland last July for perjury in filing his arrest report but not for his treatment of Bland. The Chicago-area woman was pulled over for not signaling a lane change and later found dead in her jail cell. In December, the grand jury declined to hold anyone responsible for Bland’s death.

The decisions bookend an Ohio grand jury’s refusal to indict the police officer who shot and killed 12-year-old Tamir Rice in a Cleveland park. Grand juries indict in almost every case they consider — except for cases against police officers. It is time to abolish the jury system that time and again lets killer cops walk free. 

Police in the United States kill far more people than those in most other countries. And the killings, non-lethal shootings, beatings and other abuses by law enforcement disproportionately target blacks and Native Americans. Michael Brown, Eric Garner, Freddie Gray, Walter Scott, Sandra Bland, Tamir Rice: the litany of names goes on and on, some nationally known and others remembered only by their families or communities. Even as members of the Black Lives Matter movement protested the grand jury failures in Texas and Ohio, Chicago police shot and killed Quintonio LeGrier, an emotionally disturbed 19-year-old college student home for holiday break, and Bettie Jones, his neighbor and a 55-year-old mother of five.

As journalist Ta-Nehisi Coates trenchantly argues in a Dec. 30 Atlantic column, the legitimacy of the U.S. policing and criminal justice system is at stake. When police kill or abuse their power and communities demand justice, prosecutors often hide behind the cover of the grand jury system.

Grand juries are typically composed of 16 to 23 individuals. Jurors hear evidence presented by prosecutors and decide whether to charge an individual with a crime. Grand juries indict almost every case that prosecutors bring before them. In 2010, according to Department of Justice statistics, federal grand juries failed to return an indictment in less than one-half of one percent of cases. However, the numbers are reversed in cases involving charges against law enforcement officials: Grand juries almost never indict police officers.

The grand jury began 850 years ago, as part of English common law to protect people by improving the criminal justice system. The jury was comprised of 12 men, named by the local sheriff, who heard accusations and evidence and decided whether to bring charges. In theory, a jury was less likely to be corrupted than a judge or to bring false charges than local officials or barons. Sometimes the system worked. Often it did not, leading England to limit the grand jury system, and eventually abolish it in 1948. Today, the United States is one of very few countries that still use grand juries.

The United States enshrined the grand jury system in the Bill of Rights, with the Fifth Amendment guaranteeing that no one could be charged with a “capital, or otherwise infamous crime” except by a grand jury indictment. While the constitution establishes the grand jury in federal criminal cases, each state has its own rules: Some jurisdictions mandate grand juries and some do not.

Grand juries decide whether enough evidence exists to charge an individual with a crime, but they do not determine guilt or innocence. They operate in secrecy and under near-complete control by the prosecutor. The prosecuting attorney calls witnesses, questions them, instructs jurors on the law and on what charges should be brought. Neither a judge nor any member of the public is present during grand jury proceedings. Witnesses may not even have their lawyers in the room.

The grand jury system no longer serves any useful purpose or offers any protection from abuses of power. In most cases, jurors hear from a single witness, usually a police officer, and return dozens of indictments in a day. In 1985, New York Judge Sol Wachtler famously said, “a prosecutor could get a grand jury to indict a ham sandwich,” commenting on the potential for prosecutorial abuse.

Most of today’s criticism of the grand jury system focuses on prosecutors hiding behind the shield of the jury in police misconduct cases. By sending police shooting cases to grand juries, prosecutors can claim that the decision not to charge officers is not their responsibility — in effect, saying, “The grand jury made me not do it.”

Abolishing grand juries would increase transparency in police shooting cases. Prosecutors would not be able to hide behind the secrecy of closed-door jury proceedings. They would have to take responsibility for their decisions to charge or not to charge.

At the federal level, only a constitutional amendment could abolish grand juries. Some states, including Colorado, Connecticut and Illinois, allow abolition by the legislature, while others would require amendment to the state constitution.

Abolishing grand juries may take years or decades to accomplish. In the meantime, the system can be reformed to eliminate some of the current abuses. For example, last year California banned the use of grand juries in police shooting cases. More states should follow suit. When outright abolition is not possible, state legislatures can make grand jury proceedings open to public view. U.S. Rep. Hank Johnson, D-Ga., has introduced the Grand Jury Reform Act of 2015 in Congress, which would require states to appoint a special prosecutor for each police shooting case and to hold a probable cause hearing, open to the public, before a judge. Congress should pass this bill, which was referred to committee almost a year ago, with no action to date.

Ultimately, no reform of the grand jury system can eliminate police racism or shootings. Reforms can provide greater transparency and accountability. The U.S. must join other nations in abolishing a system that has outlived its usefulness.