Criminal Justice

There’s nothing grand about grand juries

(A version of this piece was posted in Medium.)

If the decisions to not indict officers Darren Wilson and Daniel Pantaleo for the deaths of Michael Brown and Eric Garner taught us anything, it’s that Americans have grave misconceptions about the role and work of grand juries.

In the wake of the Ferguson and Staten Island non-indictment decisions, some outlets rushed to note that the grand juries “cleared” Wilson and Pantaleo of wrongdoing, while social media users proclaimed that the “jury had spoken.” Rep. Peter King, for his part, urged New Yorkers to “respect the decision.”

All of this is misinformation because grand juries have nothing to do with justice.

A cornerstone of any system of justice is due process. But grand juries observe none of the due-process safeguards we associate with Law & Order and that are practiced in criminal courtrooms across the country. Not one.

Jury trials are public; grand juries are secret. Jury trials are overseen by a judge; grand juries have no judge. Jury trials are adversarial, with prosecutor and defense attorney going head to head; grand juries are run entirely by the prosecutor. A jury trial assesses guilt at a high standard of proof; a grand jury only assesses whether charges are warranted at a very low standard of proof.

In chart form, the differences between a grand jury and a jury trial are even starker:


The chart shows a grand jury’s function is a very simple one: to get you from the first row to the second row. The second row is what we typically associate with justice.

Prosecutors have absolutely nothing to gain with an indictment—it is such a routine process, that thousands are issued by grand juries on a daily basis, in a matter of hours, and on the strength of very little evidence.

This routineness may explain why the Supreme Court has given grand juries a very short shrift. For one, the court has never recognized a “right” to a grand jury. The Bill of Rights may mention it by name, but the grand jury is not regarded the same way the right to remain silent or the right to an attorney in a criminal case are regarded. These rights are so important, the Supreme Court has systematically applied them to the states to protect the rights of the accused.

But not the grand jury; the Supreme Court has specifically declined to impose it on local governments. That means a state prosecutor can get away with providing no grand-jury review of criminal charges against you, and you’d be out of luck. You can’t sue the state because it didn’t convene a grand jury to review the evidence against you. To date, only about half the states still use grand juries.

Associate Justice Antonin Scalia, known for his originalist view of the Constitution, also thinks little of grand juries. Short of dismissing them outright, he once wrote about them at length in United States v. Williams, a 1992 case involving a man charged with loan fraud.

The short of Scalia’s view: Grand juries have no connection at all to the apparatus of justice. Think first row in the chart above. Scalia called this “operational separateness.”

In denying the man’s arguments, Scalia wrote that “it should come as no surprise that we have been reluctant to invoke the judicial supervisory power as a basis for prescribing modes of grand jury procedure.”

Absent a judge’s oversight, it’s no surprise prosecutors across the country call the shots during grand jury proceedings. That’s precisely what happened in the Michael Brown and Eric Garner cases. Not only did the prosecutors act as parties, advocates, and judges during their presentations—which is normal—but they took an unusually long time to make their case, overwhelmed grand jurors with mountains of evidence, and even asked the accused, Wilson and Pantaleo, to testify. All of this is abnormal.

And because of these abnormalities, the non-indictments in both cases speak louder about systemic problems with grand juries and prosecutors than with the justice system. In this context, the chants of “No justice, no peace” mean something else: the wheels of justice never even had a real chance to turn.

Civil Rights, Criminal Justice

Ferguson’s glimmer of justice: Federal law

The failure by a St. Louis grand jury to indict officer Darren Wilson for the death of 18-year-old Michael Brown in Ferguson, Mo., means the quest for justice in state court is likely over.

Now the attention turns to the federal system, where Brown’s family—and Ferguson as a whole—still has a chance to achieve some measure of justice. But the odds are still long.

First is the possibility of a federal indictment against Wilson. Unlike the state case, a federal case won’t center on homicide charges, but on whether Wilson violated Brown’s civil rights. But the criminal civil rights statute isn’t just an average criminal law.

Conceived during the Reconstruction Era alongside other antidiscrimination laws, the statute was passed to protect the rights of blacks enshrined in the Fourteenth Amendment, which promised equality regardless of race. When enacted in the mid-1800s, the intent of Congress was to punish egregious, state-sponsored abuses of power against blacks—lynchings, mob killings, sham trials, unlawful arrests. It’s the same law under which the police officers involved in the Rodney King case were federally indicted.

In determining whether Wilson’s conduct rises to this level of abuse, a key inquiry for the Department of Justice will be whether the officer willfully deprived Brown of his civil rights. That in itself is a really hard case to make because proving “willfulness” requires federal authorities to essentially get inside Wilson’s mind. Did he shoot Brown and thus deprived him of his constitutional rights because he was black?

That’s a huge piece of evidence, and one that—short of a full confession—is extremely difficult to uncover. This explains why FBI has reportedly interviewed hundreds of witnesses, and Attorney General Eric Holder’s statement that “federal civil rights law imposes a high legal bar.” This investigation will remain ongoing for some time.

A second possibility is a private civil rights suit by Brown’s family against the City of Ferguson and Wilson. This kind of litigation—brought under Section 1983 of Title 42 of the United States Code—is very common in federal courts when police brutality or use of force are involved. Landmark civil-rights lawsuits against New York City—including stop-and-frisk, the Central Park Five case, and the wave of arrests following the 2004 Republican National Convention—were brought under Section 1983.

But these cases, too, are rife with complications. Not only is litigation long and protracted, but case law and courts have erected legal barriers—such as qualified immunity and other judge-made justifications—making it really hard for plaintiffs to hold municipalities and officers accountable. Just this year, the Supreme Court handed down two rulings on the same day shielding government officials from liability in the face of seemingly unconstitutional conduct against citizens.

Those potential setbacks aside, the biggest benefit of a civil lawsuit is allowing the Brown family to shape and present its case to a judge and a jury—in a public forum and in whatever manner they please. None of this was available in the criminal case handled by St. Louis authorities. At the very least, the likelihood of unfavorable press for Ferguson for a case that’s already attracted enough media scrutiny might be an incentive for the city to settle with the Brown family. Money will not atone for the death of Michael Brown, but it could signify a loss for a city that is yet to be held accountable.

Lastly, DOJ’s Civil Rights Division is still conducting a “pattern or practice” investigation into the Ferguson Police Department. This process, which could last more than two years, does not look at the Brown case in isolation, but examines in depth Ferguson’s policing practices—including standards for stops, searches, and arrests, racial profiling, handling of citizen complaints, and issues of diversity within the force. Broadly speaking, the inquiry is concerned with the city’s compliance with the Constitution and federal law.

More than prior administrations, Holder’s DOJ has been extremely active and successful in obtaining important consent decrees from law-breaking municipalities. These decrees are legally binding agreements where cities and localities agree to reduce dramatically incidents involving force, conduct further training, and improve community relations. DOJ closely monitors the progress of the offending police departments, and can sue in federal court in the event of noncompliance.

The above legal scenarios within the federal system will take time to yield results, but they offer a glimmer of justice in the wake of a grand-jury outcome that left many with a sense that justice was not served.

Civil Rights, Criminal Justice, New York

SNL on pot: Off the mark

Thanks to Saturday Night Live, now everyone is up on New York City’s new marijuana policy. If you missed it, here’s the clip.

Now that was funny.

And legally, it was correct: From now on, merely possessing less than 25 grams of weed in public won’t get you arrested. But it will get you a summons, and you’ll have to take a trip to court and pay a fine.

The last part of the video is also correct: Smoking it in public will land you in lockup.

Treating smoking differently probably makes sense from a public-policy perspective; New York City likely has an interest in keeping the air unobstructed and family-friendly for tourists and visitors.

But there’s a fundamental flaw with the video—a detail that, it turns out, is also a key problem with the new pot policy as a whole: Arrests for possession of small amounts of marijuana is chiefly an issue affecting blacks and Latinos, not well-off New Yorkers residing in gentrified areas of Brooklyn.

In the SNL clip, nearly all of the residents awakening to the “new day” of marijuana policing are affluent, light-skinned men and women residing in beautiful, late-19th-century brownstones. The neighborhood looks a lot like Park Slope or Prospect Heights.

That’s a fiction because that’s not the kind of crowd marijuana enforcement has hit hardest. A report issued by the Drug Policy Alliance last month showed that 86 percent of arrestees for pot between January and August—the Bill de Blasio era—are black and Latino. The rate of arrests for whites in the same period was only 10 percent.

The kicker, though, is that the vast majority of arrestees weren’t flaunting the pot in public; they either had it tucked in their pockets or stashed in their cars or belongings. All of this was legal, even before the new mayor took office.

But because of stop-and-frisk and “clean halls,” which subjected hundreds of thousands of young people of color in poorer neighborhoods to unjustified detentions and patdowns, the pot—like magic—appeared in plain view. And once visible to police, it suddenly became a criminal offense.

This, of course, carried a bevy of consequences: a criminal record, difficulty obtaining employment, loss of public benefits and housing, and no more financial aid to pay for school. None of this had an impact on more affluent white kids, even the unlucky few who did get caught.

Which is why the shift to a summons for possessing marijuana is not necessarily better for minority youth. It’s not better because even paying a fine or missing a day’s work can have untold effects. And worse, who’s to say that the NYPD won’t continue targeting young men of color.

A class-action lawsuit pending in federal court in New York contends exactly that: that police issued in excess of 700,000 summonses without any kind of probable cause, just for the sake of meeting quotas. If a judge rules in the class’s favor, there’ll be more reason to doubt the good intentions behind issuing summons for mere pot possession. As it stands, the summons system is a mess.

With so many lingering questions about the new policy, perhaps it’s time New York underwent true marijuana reform, including fairer policing, a more streamlined summons system, and—why not—decriminalization once and for all.

Until then, New Yorkers of color will have little reason to laugh at a dreadlocked Woody Harrelson carrying a bong in public.

Civil Rights, Criminal Justice, New York

De Blasio’s perfect storm

Mayor Bill de Blasio won’t get a break. This week could be characterized as his worst since he took office.

Not because he did something wrong or didn’t do enough, but because his campaign banner, the civil rights of New Yorkers, has been trampled by a number of perfectly timed events.

The main one of all is the ongoing case of Eric Garner, the Staten Island man who died after a police officer applied a chokehold on him. The case is as white-hot as ever.

The Rev. Al Sharpton isn’t pleased. Police unions aren’t pleased. The Garner family is asking for justice. The young man who recorded the video, Ramsey Orta, and his wife, Chrissie Ortiz, were both arrested in separate incidents. The case is a media relations mess.

De Blasio, for his part, hasn’t said much.

Two reports that came to light on Monday did have much to say. The first one has to do with the NYPD’s controversial “broken windows” program, which targets minor offenses in hopes of deterring major crimes.

The findings of the report, published by the Daily News with the help of the New York Civil Liberties Union, revealed that the policy largely affects blacks and Latinos. Of the 7.3 million people who were cited or sanctioned for violations between 2001 and 2013, around 81 percent were minority residents.

Bill Bratton, the city police chief, has defended the practice. He himself implemented in 1990 when he headed the New York City Transit Authority, and later expanded it as commissioner under Rudy Giuliani. De Blasio has backed Bratton. And Sharpton, not to be outdone, has opposed both: he’s planning a march across the Verrazano Bridge to express his disapproval.

The other report was issued by the office of Preet Bharara, the Manhattan federal prosecutor. Bharara and his team investigated widespread abuses suffered by minors while in confinement at Rikers Island. Among the most egregious findings: Excessive use of force by guards; hundreds of youth treated for serious injuries; disproportionate use of solitary confinement; and lack of adequate supervision and resources to work with and tend to the needs of youth, many of whom suffer mental illness.

In other words, there is no rest for de Blasio in terms of civil-rights problems.

So far the mayor has received praise for how he handled the closing of the landmark stop-and-frisk and Central Park Five cases. But those were inherited conflicts. How he handles these new crises could very well end up defining the de Blasio era.

(A version of this column was originally published in Spanish in the print and online editions of New York’s El Diario.)

Civil Rights, Criminal Justice

The low-hanging fruit

Patrick Lynch, the president of the Patrolmen’s Benevolent Association, must work on weekends. Or so it seems.

On Sunday, his organization issued a statement about a mundane arrest in Staten Island—at least mundane in the grand scheme of New York City crime-fighting.

What was so special about the arrest? Nothing, except that the arrestee was Ramsey Orta, the 22-year-old who recorded the viral video depicting Eric Garner’s chokehold death.

The details of Orta’s arrest are unimportant because they’re irrelevant to the Garner case. But if you must know, he was arrested for illegal possession of a handgun. Orta, it turns out, also happens to have criminal record.

Of course, none of this matters. Had the arrestee been anyone else, Lynch probably would not have bothered with a press release, let alone on a day when most journalists aren’t paying attention.

But Orta is not anyone else. To Lynch, he is a “criminal” who “stand(s) to benefit the most by demonizing the good work of police officers.”

Lynch did not say what exactly Orta hopes to gain from the video. A book deal, perhaps. Or maybe a major iPhone sponsorship. Who knows. What is clear is that Orta’s act of recording Garner’s arrest is “demonizing” activity, despite court rulings—most recently from the U.S. Court of Appeals for the First Circuit—that people have a right to do so under the First Amendment.

In law and politics, what Lynch did is called character assassination. More colloquially, Lynch went for the low-hanging fruit.

Orta is the low-hanging fruit because, in the event the Garner case goes to trial—either criminally against Daniel Pantaleo, the officer who employed the chokehold, or civilly against the city—the star witness won’t be a person. It will be the video.

And it’s likely that Orta, as a matter of procedure, will be called to testify to “lay a foundation” for the recording. He doesn’t have to do it—anyone who was present can attest that the recording is an accurate representation of the events—but his naysayers will want him to do it. And heaven knows that any ace defense attorney representing Pantaleo or the city would be remiss to not bring up evidence of Orta’s prior bad acts. Not because they’re relevant to the case—they’re not, in any way imaginable—but merely to question Orta’s credibility. That the jury is not to trust anything he says because he is a “criminal.” Assassinate his character.

Again, all of the above is irrelevant. What is relevant is that the video exists and millions have seen it. That chokeholds are not permitted under NYPD policy. And lest we forget: that the New York City Medical Examiner has ruled Garner’s death a homicide.

Let the investigation and the administration’s response continue. Everything else is just a sideshow.

Criminal Justice, New York

What Harry Belafonte didn’t say about city jails

In a harsh New York Times column, journalist Jim Dwyer slammed Harry Belafonte for not being truthful during his opening remarks at Bill de Blasio’s inauguration. Dwyer called Belafonte’s words “baloney.”

If you’re at all familiar with Belafonte’s career as a singer and activist, you know that he’s not kind to hold punches. After all, it was him who once said that George W. Bush was the “greatest terrorist in the world,” and that music stars Jay-Z and Beyoncé had turned their backs on social responsibility. He’s a firebrand.

In his remarks during the inauguration, Belafonte said that “New York, alarmingly, plays a tragic role in the fact that our nation has the largest prison population in the world.”

Dwyer highlighted that portion of the speech and contradicted Belafonte, pointing out that New York—both city and state—has one of the lowest incarceration rates in the country, citing a joint study by three important policy think-tanks.

It’s true. Thanks to a reduction in the jail population of the city, the entire state reduced its incarceration rate, according to the study Dwyer cited. What’s more, in its 2013 year-end report, the New York City Department of Correction reported a decrease of 36 percent in the city’s penal population in the 12 years Bloomberg was mayor, and that, compared to the national rate, the local rate is 30 percent lower.

But did Belafonte try to “mangle history,” as Dwyer charged?

The answer is no, if you also quote what Belafonte said right after the statement in question, which Dwyer omitted from his column: “Much of that problem stems from issues of race, perpetuated by the depth of human indifference to poverty.”

Therein lies the tragedy. That’s something no one can refute.

Because even though it is true that New York is on strong footing when it comes to its correctional policies—both for people serving time behind bars or on probation—the reality is that the great majority of those imprisoned are either black or Latino. That’s the tragedy that neither New York nor the rest of the nation has been able to solve.

Maybe what Belafonte could’ve said is the following: that out of the 12,000 people incarcerated in city jails on any given day in 2012, 90 percent were black or Latino. And that more than 50 percent of those were young people. Those figures do not come from the Bloomberg administration or a think-tank, but from the city’s Independent Budget Office, which, under the City Charter, operates independently of who is in power.

That’s what Belafonte referred to when he called our system of justice “Dickensian”: that not all are equal under the law, but that some pay more dearly than others for the same crimes, all because of living in poorer neighborhoods or having less access to opportunities.

That is the “tale of two cities” that Bill de Blasio hopes to be able to fix.

(A version of this column was originally published in Spanish in the print and online editions of New York’s El Diario.)