It’s difficult to write about the grand jury’s decision so soon, so I will only be providing a few of the central contradictions in American criminal justice that have led to this moment. African Americans have for ages fought hard for control over local systems of government, and as we see in Ferguson, they have not always won. Last night’s decision and the unprofessional, unempathetic announcement by the prosecutor highlights the result: black lives in America don’t matter.
Grand juries in the United States are a typically large body of people selected in secret to hear cases brought by prosecutors who seek indictments for criminal cases. Jurors hear evidence from county prosecutors and judge the merits of the case solely on whether or not there is any probable cause that the defendant may have committed a crime. The bar is low for indictments because the defense offers no evidence. They get their day in court after indictments are brought. Grand jury proceedings are basically pre-trial screenings, ensuring that silly cases with no evidence don’t make it in front of a judge.
If your house is robbed and the police catch a suspect, they take the evidence to a prosecutor. The prosecutor surveys the evidence and presents it to a grand jury in secret. The jury then decides whether or not to indict the defendant of burglary. If they do not, the defendant walks. If they do, charges are officially brought and the defendant gets their day in court where they can offer evidence of their own innocence.
The bar for indictments is extremely low due to the fact that they are bare pre-trial screenings. Guilt or innocence is not declared by grand juries. They only decide whether or not a crime may have been committed by the defendants. In the 1980s, Sol Wachtler, a former New York State judge, famously said that a good prosecutor could indict a ham sandwich if they wanted to, referring to how much influence prosecutors have over the system.
The numbers seem to back that up. Citing the Bureau of Justice Statistics, Ben Casselman at FiveThirtyEight, “U.S. attorneys prosecuted 162,350 federal cases in 2010, the most recent year for which we have data. Grand juries declined to return an indictment in 11 of them.” For you stats lovers, that means for every case a grand jury declined to send to trial, 14,729 were approved. Only %0.00007 of grand jury presentments were declined.
Last night’s decision exposed a deep contradiction that Sol Wachtler was trying to help expose back in the 1980s, and that historians have long known. Prosecutors have tremendous influence over the system. If they want to indict, they do–and with remarkable efficiency. But in cases where they don’t, such as when police are involved, they don’t.
District attorneys and the police protect one another. When police are even brought before a grand jury (which, according to Reuben Fischer-Baum’s research, is quite rare), they seem to be much less likely to be indicted. There are no full statistics of officer-involved shootings, but a 2013 report by the Houston Chronicle offers damning information from Texas. In Houston, of the 121 civilians shot by Houston police officers show between 2008 and 2013, not a single officer was indicted. The last time a county officer was indicted for a shooting was 2004.
Charges in police shootings also are rare in other large cities. In Dallas, only one police officer was indicted from 2008 to 2012, after grand juries reviewed 81 shootings involving 175 officers. The most recent Chicago police officer to be charged in an on-duty shooting was in 2007.
As it happens, grand juries are susceptible to influence from the prosecutors who bring their cases, especially when a prosecutor has deep family ties to the police, as was the case in Ferguson.
The central irony of a supposedly blind system of government that is in fact run by the whims of county prosecutors runs up against a long-running theme of black life in America: lack of representation in local government. Ferguson, Missouri is a black town controlled by affluent white people. Five of its six city council members are white. Its mayor is a white man. Its chief of police at the time of Brown’s death is a white man. The prosecutor who brought the indictment to the grand jury is a white man. Yet, the city is 67 percent black.
Disproportionate control of grand juries is yet another result of Jim Crow. Modern American governance was built upon the exclusion of black men and women from it. Without control over the systems of justice that allow the majority of Ferguson residents to police the police that represent a select minority, African Americans are rightly upset that this system results in their bodies, their property, and their lives mattering less than those of white people.