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“We Need More Ferguson-Style Grand Juries”: A Model For How To End The Over-Incarceration Of African-Americans Today

We need more grand juries like the Ferguson grand jury. In an ironic twist, Ferguson’s grand jury provides a blueprint for a radical civil rights revolution that could help end the worst racial injustice in America today. Here’s why.

Many observers have noted that the grand jury result in Darren Wilson’s case is highly unusual. Federal grand juries indict in more than 99 percent of cases; state grand juries aren’t quite at that level, but still indict in an overwhelming number of cases. The grand jury deck is heavily stacked to favor prosecution. For instance, prosecutors have no obligation to present all of the evidence in a case, just enough evidence to get an indictment. The old adage is that if a prosecutor asked them, a grand jury would indict a ham sandwich.

Other than sandwiches, who are grand juries indicting, and how? They disproportionately indict young African-American men, and they usually do it very quickly. Grand juries often hear dozens of cases in a single day, and may hand down an indictment based on ten minutes or less of testimony. As one news article notes, “Prosecutors present as many as 40 cases a day to grand juries,” who in turn “indict most suspects in less time than it takes to brew a pot of coffee.”

This is why the grand jury in Darren Wilson’s case was so unusual. It isn’t just that the result was out of the ordinary— the process was also unique. The grand jury heard an incredible 70 hours of testimony from 60 witnesses over a three month period. In another unusual move, the grand jury considered not only the basic elements of the crime, but also affirmative defenses. Ashby Jones writes at the Wall Street Journal blog that “It’s not disputed that Ferguson police officer Darren Wilson shot and killed 18-year old Michael Brown on August 9. The question jurors were likely asked to consider went beyond that: whether Mr. Wilson was justified in shooting Mr. Brown.” And in yet another atypical move, prosecutors presented this grand jury not just a cherry-picked case for prosecution  but “absolutely everything … Every scrap of paper that we have. Every photograph that was taken.”

This approach should not be condemned; it should be expanded upon. While cases like the Mike Brown and Trayvon Martin killings receive media attention, they aren’t actually representative of the way that most African-American young men interact with the justice system today. Instead, today’s criminal justice system mostly interacts with young Black men by putting them behind bars at an alarming rate. In recent years nearly one million African-Americans have been incarcerated at the federal, state or local levels. As many as one in three Black men born today will spend time incarcerated.

When they do leave prison, these men are largely unemployable and ineligible to vote, and often end up back in the system. This mass incarceration is destroying the Black community — it is, as Michelle Alexander writes, the New Jim Crow. And it depends on grand juries who act as a conveyor belt, quickly funneling tens of thousands of young Black men into prison.

The contrast with the Wilson grand jury is a stunning illustration of the racial double standards in criminal justice. We should undo that double standard by offering similar protections to every young Black man who is arrested in this country. If grand juries across the United States regularly deliberated for twelve weeks rather than twelve minutes, it would become physically impossible to incarcerate a million African-Americans. If every grand jury heard seventy hours of testimony from sixty witnesses over three months, it would mean the end of mass incarceration in America.

Of course, racial double standards have been lived reality throughout American history. But perhaps the sheer visibility of the grand jury in this case will call attention to the problems of how grand juries usually operate. Ironically, the Ferguson grand jury provides a model for how to end the over-incarceration of African-Americans today. I hope that a thousand more grand juries will follow its lead.


By: Kaimipono Wenger, Thomas Jefferson School of Law in San Diego, California; The Daily Beast, November 30, 2014


December 3, 2014 Posted by | Criminal Justice System, Ferguson Missouri, Grand Juries | , , , , , , | Leave a comment

“A Badge Does Not Confer Credibility”: Bias Can Strain An Already Difficult Standard In Prosecuting Police

Average people find it difficult to place themselves in the shoes of police officers who live everyday knowing their next call could be their last. So when faced with a shooting by a police officer in questionable circumstances, they give deference to the officer’s decisions.

Jurors usually find that such officers reasonably believed the slain person posed a threat of serious bodily harm or death, justifying deadly force under legal standards.

Prosecutors are keenly aware of this tendency and know they will have difficulty prosecuting such cases. It would be hard, however, to create an alternative legal standard that could better ensure both an officer’s right to safety and the individual’s right to be free from excessive force.

Many minority citizens fear that jurors’ racial biases expand the notion of when it is reasonable for an officer to use deadly force. Indeed, one of the first questions many commentators asked when the decision was announced in the Michael Brown shooting was whether the grand jurors who declined to indict Darren Wilson, the officer who shot him to death, were split along racial lines.

Perceptions of racial bias undermine the legitimacy of the criminal justice system, splitting citizens along racial lines when a white police officer kills an unarmed racial minority.

While we cannot eliminate the possibility for bias in prosecutions, we can make the process more transparent. Local prosecutors should not be faced with the choice of bringing charges against members of the police departments they rely on every day. These cases should automatically be referred to the state attorney general’s office or a special prosecutor who does not have the same perceived conflict of interest.

Jurors should be given clear instructions that an officer’s testimony carries the same weight as that of any other witness and that a badge does not confer credibility.

Criminal prosecutions, however, are not the most effective way to address systemic problems in a department because they focus solely on the actions of an individual officer and not on the organizational culture that likely shaped that conduct. To force broader changes in police practices, advocates should focus on institutional factors that encourage police misconduct, such as the failure to identify, supervise and discipline officers who are prone to misconduct.


By: Kami Chavis Simmons, Former Federal Prosecutor, Professor and Director of the Criminal Justice Program at Wake Forest University School of Law; Room for Debate, The New York Times, November 25, 2014

November 30, 2014 Posted by | Criminal Justice System, Grand Juries, Police Officers | , , , , , , , | Leave a comment


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