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Volokh Conspiracy

Harvey Silverglate on 'Ferguson's Unexpected Lessons'


In recent days I've seen many people suggest that the lesson of recent events in Ferguson, Mo., and New York suggest that we should eliminate grand juries. Harvey Silverglate presents a contrary opinion in a Boston Globe column, "Ferguson's Unexpected Lessons," arguing that the real problem has been the gradual gutting of the grand jury over time and that this has increased the power of prosecutors. He argues instead, that the Ferguson grand jury process is a model to be emulated generally:

While the grand jury's decision not to indict may, to some, taste of injustice in this particular case, one should always be wary of wishing for a more zealous prosecutorial approach that infantilizes citizens and robs them of their rightful role in deciding who should, and should not, be charged with serious felonies. In fact, the role played by the grand jury in Ferguson demonstrates the wisdom of our English common law forebears, and poses a challenge to courts and prosecutors nationwide who in recent decades have turned this one-time citizens' shield against prosecutorial abuse into a sword aimed at the heart of liberty.


First, grand juries should be relied on more, not less, especially in cases that arouse popular suspicion, passion or cynicism. Grand jury reforms should be enacted, on both the state and federal level, requiring that grand juries proceed in much the manner that McCulloch ran the St. Louis County grand jury, with an impartial prosecutor, the lawyer representing the target if the lawyer requests to be present, and with full transparency at the end of the process. For those upset by the Ferguson decision, they should know that this sort of grand jury reform will almost certainly result in decreasing the conviction of the innocent and, not so incidentally, lowering the incarceration rate of, among others, many young, black men who now populate our prisons at such a disproportionate rate.

More generally, if the larger concern about the American justice system is that innocent minorities are too often indicted and convicted by the criminal justice system (and, of course, the indictment is often tantamount to a conviction because of the frequency of plea agreements), it isn't obvious to me why giving more power and discretion to prosecutors and taking away power from ordinary citizens sitting on grand juries is an effective strategy to address that concern.

I guess that one could argue that the system would be more "fair" and "equal" if prosecutors were able to indict more innocent whites and minorities alike, but that seems like a peculiar sort of goal in this realm. In a world in which the criminal laws are so broad and vague that almost anyone can be indicted at any time for almost anything they do, one would think that we'd want to have greater, not lesser, intervention by ordinary citizens against prosecutorial discretion.

These concerns about overcriminalization of ordinary life and the power it gives to prosecutors has been a long-standing concern of Silverglate's (see here where Bill Frezza writes about Silverglate's book, "Three Felonies a Day: How The Feds Target the Innocent").

Harvey wrote this after Ferguson decision but before New York jury's vote, but I doubt the conclusions that he draws here-that "sunlight is the best disinfectant"-would be changed even if he disagrees with the result in that case.