This needs to be part of any reform of the legal system in this country.
To critics, this means that the charging process essentially rigs the game against defendants from the outset. Civil libertarians regard this as a dangerous gap in our rights: While the police who investigate and arrest us are bound by strict limits on what they can do, and courts must abide by procedures designed to treat defendants fairly, there are hardly any guidelines in place to protect us during the charging phase. The result—as any “Law & Order” fan knows—is a system where the prosecutor loads up as many charges as possible to force a guilty plea, and moves on to the next case.
“What we really have is a plea bargain system with a thin froth of showy trials floating on top,” said Glenn Reynolds, a professor at the University of Tennessee College of Law who published a widely circulated paper earlier this month on the topic of prosecutorial overreach.
Changing this, say reform-minded experts like Reynolds, would not necessarily require a radical reworking of how prosecutors do their jobs. Instead, it would be enough to strengthen an institution that’s already in place, though widely marginalized: the grand jury, a panel of citizens who are supposed to watch over the shoulders of prosecutors to make sure their fellow citizens aren’t being improperly charged, bullied, or targeted arbitrarily.
Grand juries today are required by law in just 19 of the 50 states—Massachusetts among them—and even there, they’re used only to indict felons. Officially, their job is listen to the prosecutor lay out the evidence and determine whether there is probable cause to charge the suspect with a crime. But in practice, grand juries tend to serve as rubber stamps, indicting almost everyone who comes before them. (It was a federal grand jury that indicted Aaron Swartz on felony charges in July 2011.) The joke in legal circles is that any prosecutor worth his salt could convince a grand jury to indict a ham sandwich.
To restore grand juries’ power to protect people from prosecutors, one important change states could make, Simmons says, is to give suspects the right to testify at their own hearings, and their attorneys the right to present exonerating evidence. Currently, there are only four states in the United States where those rights are in place; among them is New York—and, tellingly, approximately 6 to 10 percent of New York’s criminal cases are struck down by the grand jury, vastly higher than the national average. When Simmons was a prosecutor in New York earlier in his career, he said, there were several times when people he was trying to indict—a young military veteran accused of cocaine possession, a man who tried to bribe a police officer so he wouldn’t have to spend the night in jail—spoke up on their own behalf, and convinced the grand jury they didn’t deserve the proposed charges. In those cases, Simmons says, there was clearly probable cause to indict, but the jurors decided there was something about the situation that made the prospect of criminal punishment seem unfair