Should we just get rid of grand juries altogether? That’s a big question many folks are rightly asking, from average citizens marching through streets for justice on freezing days to thought leaders and activists searching for next steps as frustrations boil over. The question isn’t new, either, especially in discussions of police brutality, misconduct and excessive force.
The United Kingdom, for instance, actually abolished its grand jury process 80 years ago, with other British Commonwealth nations, including Australia and New Zealand, following suit. But here, grand juries are still as all-American as apple pie and baseball.
With recent high-profile and controversial decisions handed down in Ferguson, Mo., and Staten Island, N.Y., even many of the usual tough-on-crime conservatives are wondering, “What gives?” In Staten Island, the death-by-choke-hold cop caught on tape avoids indictment, but the congressman charged with fraud doesn’t? And there’s plenty of side-eyeing skepticism to go around as grand jury proceedings commence in the police killings of Tamir Rice in Cleveland and Akai Gurley’s case in Brooklyn, N.Y.
So what to do? The Take talked to some leading advocates and thinkers on the subject, each offering different paths to the same goal: accountability. Gracious enough to offer insight was National Urban League President and former New Orleans Mayor Marc Morial, former NAACP President Ben Jealous and Urban Institute Senior Fellow John Roman.
Marc Morial, National Urban League: I think the key is, we need to reform the process. The grand jury process in the Brown [Ferguson] and Garner [Staten Island] cases did not work because of the way the prosecutors managed the process. What I mean by that is, both prosecutors decided to do a document or an evidence dump. Both prosecutors in these cases allowed the targets of the investigation to come before the grand jury and not cross-examine them. Both prosecutors felt like they would seek to release the testimony that went before the grand jury. And both prosecutors did not ask for an indictment. So the process was mismanaged by both Robert McCulloch in St. Louis County and Daniel Donovan in Staten Island.
The process is flawed because of how these prosecutors manage. In light of that, you need reforms. One reform is the appointment of a special prosecutor in these cases. For example, you’ve now got two cases pending: Akai Gurley in Brooklyn and Tamir Rice in Cleveland. It will be interesting to see how those prosecutors manage those cases. In the Gurley case, you have the prosecutor who was involved in the Abner Louima case. In Cleveland, we don’t really know this prosecutor and his history. All eyes are watching.
Benjamin Jealous, Kapor Center for Social Impact: What is most pressing at hand is making sure that our prosecutors represent our communities. When Kamala Harris is the district attorney in San Francisco, or when you have four black elected district attorneys—like Seth Williams in Philadelphia and Craig Watkins in Dallas—who are representing cities with populations over 200,000 people, that is a good thing. What you see when a progressive—whether they are black or white—becomes district attorney, law enforcement makes huge advances very rapidly. Watkins, in Dallas, created an Office of Innocence Protection in a city and a state that historically sends lots of innocent people to jail and to death row.
John Roman, Urban Institute: Going back centuries, the original purpose of the grand jury was to prevent elected officials from using the criminal courts as a bludgeon against their political enemies—a means of forcing some due process into a corrupt system. Today, in a world of 24-7 news coverage, that reasoning is nonsensical; unjust political backbiting will surely be uncovered.
Morial: The other option we have is stronger empowerment of federal prosecutors. So federal prosecutors will have purview and authority to conduct an investigation in these excessive-force cases. The law overseeing these cases is over 100 years old, so there’s a question of whether or not we need a new law and a new 21st-century standard that gives federal prosecutors the opportunity to do a thorough job. Federal prosecutors are somewhat independent of the local law enforcement and somewhat insulated from the local politics in that community.
A newly reformed process could involve a state determining that whenever there is a case involving excessive force by police, this should automatically trigger a special prosecutor to conduct oversight and manage the investigation—these would be appointed by the governor or the attorney general. Or special prosecutors could be appointed only in cases of death.
Still, we want to be careful in carrying out an absolute remedy. In some cases, we want to make sure the prosecutor is not politically compromised. For example, lots of police officers and city employees live in Staten Island, and there are lots of political considerations. So we have to be careful here, but we definitely need to implement new reforms.
Roman: In 2014 the reality is that if a prosecutor wants to take a case to trial, the grand jury is a rubber stamp. Perhaps one in 15,000 cases put forward by a prosecutor are declined. Why are they declined? Because in those cases, the prosecutor doesn’t want a conviction and sees the grand jury as a shield to provide political cover. It’s time to get rid of this antiquated, undemocratic process.
Jealous: The biggest change we can make in the system is getting involved in it. When Harris became the district attorney, she was able to increase the employment of formerly incarcerated residents. In each case, both district attorneys began to reduce the numbers of wrongful or questionable prosecutions, but they also raised the bar for the position of prosecutor.
In the Brown and Garner cases, you have the specter of prosecutorial misconduct and no one submitting that there is a conflict of interest, because their offices have worked very closely with the police. I also think that more states’ attorneys general should also exhibit more leadership in these types of situations, similar to Eric Schneiderman, recently, in New York, who commented that no longer should local district attorneys be permitted to prosecute police-misconduct issues in their own jurisdiction.
Charles D. Ellison is a veteran political strategist and a contributing editor at The Root. He is also Washington correspondent for the Philadelphia Tribune, a frequent contributor to The Hill, the weekly Washington insider for WDAS-FM in Philadelphia and host of The Ellison Report, a weekly public-affairs magazine broadcast and podcast on WEAA 88.9 FM Baltimore. Follow him on Twitter.