Fordham Law Review Volume 76 Issue 5 Article 3 2008 Restoring the Grand Jury Kevin K. Washburn Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Kevin K. Washburn, Restoring the Grand Jury, 76 Fordham L. Rev. 2333 (2008). Available at: https://ir.lawnet.fordham.edu/flr/vol76/iss5/3 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Restoring the Grand Jury Cover Page Footnote 2007-08 Oneida Nation Visiting Professor, Harvard Law School; Professor, University of Minnesota Law School. The author benefited from the comments of gracious participants at faculty workshops at the law schools of the following universities: Arizona, Arizona State, Colorado, Harvard, Marquette, Minnesota, UCLA, Vanderbilt, and Virginia. Particular thanks to Jack Chin, Richard Frase, Jonathon Gerson, John Goldberg, Jerry Kang, Nancy J. King, Wayne Logan, Marc Miller, and Kevin Reitz. The author also appreciates the able research assistance provided by Lotem Almog Levy, Mara Michaletz, Thomas Phillips, and Michael Reif. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol76/iss5/3 RESTORING THE GRAND JURY Kevin K. Washburn* Though it is enshrined in the Constitution, the grandjury is one of the least respected institutions in American criminal justice today. Scholars regard the grandjury just as doctors regard the appendix: an organicpart of our constitutional makeup, but not of much use. While scholars have proposed reforms, most of them seem only loosely related to the fundamental purpose of the grand jury. In an era of plea bargains, the grandjury can serve a crucial role in insuring popular legitimacy in the criminaljustice system. In light of the criticism, however, the grand jury seems to be failing in that role. This Article theorizes that, as the United States has become more diverse, the grand jury has lost its role as "the voice of the community. " Since a grandjury functions by majority vote and is drawn from the entire jurisdiction, the grandjury has lost its role as a countermajoritarianforce of the local community against central authority. Ironically, the problem may have developed from efforts to insure diverse representation in criminal justice through unthinking adoption of the principle that trialjuries should be drawnfrom panels representing a 'fair cross-section of the community. " As the grand jury has become a microcosm of the broader melting pot, each community's voice has been lost amid a cacophony of voices from other communities within the same jurisdiction. This has harmed citizens in poor and minority communities where legitimacy issues are most salient. No jurisdiction is just one community, and no grand jury can serve its purpose of representing a community if it is drawn from all communities. Grandjuries should be reconstituted so that each grand jury represents an actual community of people who are likely to share common concerns about local issues of criminaljustice. TABLE OF CONTENTS IN TROD U CTION ........................................................................................ 2335 I. ESTABLISHING THE GRAND JURY: THE GRAND JURY IN CONTEXT... 2340 * 2007-08 Oneida Nation Visiting Professor, Harvard Law School; Professor, University of Minnesota Law School. The author benefited from the comments of gracious participants at faculty workshops at the law schools of the following universities: Arizona, Arizona State, Colorado, Harvard, Marquette, Minnesota, UCLA, Vanderbilt, and Virginia. Particular thanks to Jack Chin, Richard Frase, Jonathon Gerson, John Goldberg, Jerry Kang, Nancy J. King, Wayne Logan, Marc Miller, and Kevin Reitz. The author also appreciates the able research assistance provided by Lotem Almog Levy, Mara Michaletz, Thomas Phillips, and Michael Reif. 2333 2334 FORDHAM LA W REVIEW [Vol. 76 A . Why Juries?............................................................................ 2340 B. The GrandJury in American Narrative................................. 2342 C. The Meaning of the Conventional Rhetoric and the H istoricalN arrative.............................................................. 2345 D. GrandJuries Versus Trial Juries in Contemporary Policy.... 2347 1. Plea Bargaining, Citizen Participation, and the Grand Jury ..................................................................................2 34 7 2. Trial Jury Nullification and Grand Jury Discretion ......... 2349 II. SCHOLARLY CRITICISM OF THE MODERN GRAND JURY AND LEADING PROPOSALS FOR REFORM ............................................. 2351 A. Conventional Criticism of the GrandJury ............................. 2352 B. Existing GrandJury Reform Proposals.................................. 2354 1. Proposals to Improve the Grand Jury Through Staffing and E xpertise ................................................................... 2354 2. "Information Empowerment" Proposals .......................... 2355 III. RECONSIDERING THE ROLE OF THE GRAND JURY AS A CHECK ON PROSECUTORIAL POW ER ..............................................................2356 A. The GrandJury as a Check on Runaway Prosecutorial P ow er .................................................................................... 2357 B. Wrong Turns in GrandJury Scholarship ............................... 2361 1. Criminal Justice as a Contest Between the Prosecutor and D efendant ................................................................. 2361 2. Independence as a Contest Between the Prosecutor and Grand Jury ....................................................................... 2363 3. Grand Jury as Executive, Judicial, or Legislative Actor.. 2364 C. The Deeper Ramifications of GrandJury Discretion............. 2368 IV. THE GRAND JURY AS BAROMETER OF LEGITIMACY AND A THEORY OF WHAT WENT WRONG ............................................... 2369 A. A Theory of What Went Wrong with the GrandJury .............2371 B. The Failureof the Cross-SectionalIdeal ............................... 2373 C. The Perniciousnessof the Cross-SectionalIdeal in the GrandJury Context............................................................... 2375 V. RESTORING THE INDEPENDENCE OF THE GRAND JURY ..................... 2376 A. The "NeighborhoodGrand Jury" or the "GrandJury by Z ip C ode "............................................................................. 2378 B. The Advantages of Neighborhood GrandJuries for Local Offenses ................................................................................. 2380 1. Expanded and Improved Educative Benefits of Jury Service ............................................................................. 2380 2. Improved Community Representation and Legitimacy in C rim inal Justice ............................................................... 2381 3. Increased Power of the Community Relative to the Prosecutor ........................................................................ 2382 20081 RESTORING THE GRAND JURY 2335 4. A Color-Blind Solution to Racial Problems in Criminal Ju stice .............................................................................. 2 3 83 C. PotentialDisadvantages of NeighborhoodGrand Juries ...... 2383 D. The Neighborhood GrandJury Vis--Vis Other Reforms ...... 2387 C O N CLU SION ........................................................................................... 2388 INTRODUCTION The American criminal justice system has long suffered withering criticism related to race and discrimination. While such criticism tends to rise and fall with news cycles and specific incidents with racial overtones, many communities seem to have a low baseline of trust in the criminal justice system. For almost as long as Americans have sought to address racial issues in criminal justice, the jury has figured prominently as part of the solution. The jury is a natural place to work to address such problems because it imbues criminal justice with a strong democratic element.' Jury service provides a concrete opportunity for meaningful participation by everyday citizens in one of the most important-and high stakes- activities of government. 2 And through their participation on juries, ordinary citizens become invested in criminal justice and government itself. Indeed, it is largely on citizen participation that the legitimacy of the American criminal justice system rests. While tremendous attention has been devoted to the trial jury in addressing problems involving race, scarce attention has been devoted to the other important American jury, the grand jury. In light of the scarcity of trials in modem criminal justice, the lack of attention to the grand jury is unfortunate. The grand jury could play a significant role in restoring the legitimacy of American criminal justice, particularly in communities of color that lack trust in the criminal justice system. Today, the grand jury draws mostly skepticism when it draws any attention at all. Though enshrined in the Fifth Amendment and praised in U.S. Supreme Court opinions, it garners very little respect among legal academics or practitioners. 3 The claim that the average grand jury would 1. See Miller-El v. Dretke, 545 U.S. 231, 272-73 (2005) (Breyer, J., concurring) (quoting Alexis de Tocqueville's