Jury-Rigged

Sidestepping the Constitution

The federal government has transformed grand juries into "inquisitorial bulldozers that run roughshod over the constitutional rights of citizens," warns a new study from the Cato Institute. The study argues that grand juries, once checks on prosecutorial power, have become an extension of the investigative process.

Historically, grand juries empowered citizens to combat overzealous criminal prosecution. In colonial Boston, juries regularly refused to indict citizens accused of violating the Stamp Act and other unpopular policies.

Today, law enforcement uses the grand jury system to sidestep constitutional limitations, such as bans on unreasonable seizures and compulsory self-incrimination. Suspect won't talk? Try a grand jury subpoena. No search warrant or probable cause? No problem—grand juries have nearly unlimited power to obtain private documents, as the public learned when Kenneth Starr demanded that a Washington, D.C., bookstore dig up records of Monica Lewinsky's purchases.

Traditionally, the wide reach of this subpoena power has been mitigated by the secrecy of grand jury proceedings: Any testimony or documents, however sketchily obtained, as least stayed within the courtroom. The PATRIOT Act swept away this limitation, granting federal prosecutors the right to share grand jury material with a host of government agencies.

Timothy Lynch, co-author of the Cato report and director of Cato's Project on Criminal Justice, warns that in the event of another terrorist attack, "we could see Congress rush to pass a PATRIOT II?type package without serious deliberation." Lynch notes that the FBI "has always wanted its agents to have subpoena powers, even though it is startling how much power they already have."