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“What we really have is a plea bargain system with a thin froth of showy trials floating on top,” said Glenn Reynolds, a professor at the University of Tennessee College of Law who published a widely circulated paper earlier this month on the topic of prosecutorial overreach.
Changing this, say reform-minded experts like Reynolds, would not necessarily require a radical reworking of how prosecutors do their jobs. Instead, it would be enough to strengthen an institution that’s already in place, though widely marginalized: the grand jury, a panel of citizens who are supposed to watch over the shoulders of prosecutors to make sure their fellow citizens aren’t being improperly charged, bullied, or targeted arbitrarily.
Grand juries today are required by law in just 19 of the 50 states—Massachusetts among them—and even there, they’re used only to indict felons. Officially, their job is listen to the prosecutor lay out the evidence and determine whether there is probable cause to charge the suspect with a crime. But in practice, grand juries tend to serve as rubber stamps, indicting almost everyone who comes before them. (It was a federal grand jury that indicted Aaron Swartz on felony charges in July 2011.) The joke in legal circles is that any prosecutor worth his salt could convince a grand jury to indict a ham sandwich.
To restore grand juries’ power to protect people from prosecutors, one important change states could make, Simmons says, is to give suspects the right to testify at their own hearings, and their attorneys the right to present exonerating evidence. Currently, there are only four states in the United States where those rights are in place; among them is New York—and, tellingly, approximately 6 to 10 percent of New York’s criminal cases are struck down by the grand jury, vastly higher than the national average. When Simmons was a prosecutor in New York earlier in his career, he said, there were several times when people he was trying to indict—a young military veteran accused of cocaine possession, a man who tried to bribe a police officer so he wouldn’t have to spend the night in jail—spoke up on their own behalf, and convinced the grand jury they didn’t deserve the proposed charges. In those cases, Simmons says, there was clearly probable cause to indict, but the jurors decided there was something about the situation that made the prospect of criminal punishment seem unfair.
Josh Bowers, an associate professor at the University of Virginia School of Law and a former public defender, believes that grand juries would be more useful if we relied on them more explicitly for this deeper kind of judgment, and recast them as a sort of grass-roots branch of government “that serves to reshape the rough edges of the law in a decidedly populist fashion.”
Instead of being asked to make yes/no determinations about probable cause in felony cases—at heart a technical legal matter—Bowers argues that grand juries should instead be asked to weigh the fairness of all kinds of charges, including subway turnstile hops, public urination, graffiti, and marijuana possession, and throw them out if they don’t meet basic moral standards.
“Laypeople are bad at applying law to fact,” Bowers said. “I think they are much better when it comes to moral reasoning—using everyday wisdom and their experience and existence in the world to make moral judgments about what we ought to do.” In a recent paper, Bowers invokes the morally ambiguous story of a doctor in New Orleans charged with homicide after euthanizing people stranded in a flooded hospital after Hurricane Katrina; in that case, after deliberating for months, the grand jury declined to indict.
The principle that ordinary people can serve as a sort of moral compass also drives a proposal by Laura Appleman, an associate professor at Willamette University College of Law, who argues that we should respond to the new realities of the legal system by creating a new kind of jury entirely—one that oversees plea bargaining. This group of people would take into account the circumstances of the defendant’s arrest, the charges that were originally brought by the prosecutor, and finally, the terms of the guilty plea. “The hope would be to cast some transparency and some sunshine and some legitimacy on the process,” Appleman said. “If the plea jury, as I call it, thinks [the deal] sounds fair enough, they’d sign off on it. And if they said no, the court would have to take a closer look.”
Though grand jury reform has achieved traction in some circles, most experts in the legal field are skeptical that bringing laypeople into the charging process is the right way to curb prosecutorial overreach. For one thing, there are practical concerns: Though having ordinary citizens weigh in on every little misdemeanor and every plea deal might make the system less ruthless and less mechanical, it would also slow it down severely, and require a bigger time commitment from citizens who are already inclined to treat jury duty as a huge imposition.Continued...