Structural Inequities in the Criminal Justice System: A Personal Account
By: Phil Basso
To quote a colleague, I was "woke." For me, serving as the deputy of a national human services association, being woke feels like being foolish—for not knowing before what I now know in my bones. But it also feels like being cleaner, wiser, and more equipped. My summons to serve on a District of Columbia (DC) grand jury came in a small official-looking envelope. Mandatory service it said, with no exceptions. I had been called to petit jury service before—the 12 people comprising a trial jury—and had been picked for one. But this was a grand jury, and I had no idea what it was or did.
Criminal grand juries in DC serve for five straight weeks, hearing witness testimony or other evidence for prospective criminal felony cases from DC government prosecutors. The role of a grand jury is to determine whether the prosecutor and government have "probable cause" to bring such a case to trial, in the form of criminal "indictments." Did the crime probably occur, and did the accused probably do it? The evidence provided is limited to a prosecutor's objective of meeting probable cause tests or requirements that fit the criminal charges in question. There are no defense attorneys involved. A DC grand jury has 23 people on it, and votes to indict or not when the prosecutor asks them to do so. A simple majority of 12 "yes" votes results in an indictment.
On our first morning of service, we were told that we were upholding the U.S. Constitution's Sixth Amendment, which guarantees the rights of criminal defendants—including the right to a public trial without unnecessary delay, the right to a lawyer, the right to an impartial jury, the right to know who your accusers are, and the nature of the charges and evidence against you. Were we a shield as envisioned by the Founding Fathers and envied the world over? Going into my grand jury service, I sure thought so, and I was dedicated to being an excellent jurist.
I. "Lost Potential" and "Suffering"
As Grand Jury One, we were given the prospective felony cases that were the hardest to listen to: murders, assaults, sexual felonies, child abuse and domestic violence. I've had the opportunity to recite this list a few times to live audiences, and almost a year later, I can't do it without starting to cry:
- A child is sent to stay with "friends" for the summer and returns in shock and with various injuries we see in evidence photos;
- A young girl tells us about her being prostituted many times daily on drugs in a basement, with a chip on her shoulder and a teddy bear in her arms;
- A man comes to visit DC from a small town in the South to visit his old flame, is stabbed repeatedly, and then dragged along a bloody floor by a jealous ex-boyfriend;
- Two sisters testify about a history of sexual abuse from their stepfather, never having told each other until now, in the hope that he would focus on one of them and ignore the other.
I was also deeply troubled each day by how people—just like me when they started out—experience long histories of abuse and neglect in their relationships and material circumstances. They don't get the help they need early enough, and then sometimes become abusers themselves, learning about violence from those around them, unlike the role models I had growing up. Then they find themselves in front of a grand jury, where there is no chance for that support or empathy. Where they are demonized, despite who they really are and who they might have become. Today's felon is yesterday's vulnerable child.
Grand juries don't hear one case at a time, with all the live witnesses and evidence lined up in sequence by the prosecutor, as they would do for a regular trial. We heard evidence on 73 criminal felony cases. Any given case was presented to us piecemeal, over any number of days or weeks. By the time we were asked to deliberate and vote on a case, our sole yellow legal pads served as our best recall. The average time we had to deliberate and vote was around 20 minutes per case, including cases with more than 10 "counts" or elements of criminal behavior. When asked to vote on an indictment, it was often near the end of a day or near our lunch break.
Throughout this cycle of evidence and indictment votes, we were reminded that our role was to determine probable cause, and not guilt beyond a reasonable doubt. That was the job of the trial jury— 12 people who would have to vote unanimously to find someone guilty. We were told that probable cause was the "lowest legal bar" for the court to establish. This continual reinforcement served to focus us on DC's written probable cause standards for the different felony counts before us. And in the earliest days of our jury duty, my primary focus for each case was simple: "Did the crime probably occur? Did the accused probably do it? Is the evidence credible?"
II. Starting to Really Understand
"Don't think about what happens after your vote." I knew what our court liaison meant when she reinforced this principle with us—the prosecutors had been reminding us daily that probable cause is different than guilt beyond a reasonable doubt. But I couldn't help thinking that we were assuming a lot about what happens to the accused later in the criminal justice process. Once they were indicted, we were assuming that people were then going to have a trial with a petit jury and a defense lawyer in their corner. We were assuming that the entire jury would have to find them guilty beyond a reasonable doubt for them to go to jail or otherwise pay for these crimes. We were assuming much more preparation and evidence would be needed by our prosecutors for a jury trial and conviction to happen. "Thinking about what happens after I vote" started to seem awfully important in reality, compared with what we were being told in theory.
Back home in front of the Internet, it was easy for me to quickly find out the following things:
- Most criminal indictments never see the light of day. They never get in front of a petit jury, because they are plea bargained.
- In 1977, 25 percent of criminal indictments resulted in jury trials. That has since shifted to 3 percent to 8 percent today, depending upon the jurisdiction in question. Why so few, and why this big shift?
- Due to evolving case law from our country's higher courts, the complexity and therefore cost of criminal trials has risen dramatically since the Sixth Amendment was written.
- Minimum sentencing laws, especially for some drug-related crimes, have created much greater differences between a plea bargain and what will happen if a person is convicted at trial.
- Almost all poor people who are indicted for a crime plea bargain. For the most part they don't have enough money for bail and for a good defense attorney.
- Public defenders may be good at the law and at trial, but they are compensated for the number of cases they handle and close, not for winning cases at trial.
A large majority of the accused in the cases we were hearing were poor people and minorities, African American, or Hispanic. Once we voted to indict them, it was very unlikely that they were ever going to trial. In other words, we were, in essence, giving them a felony record right then and there, and much more than that depending on their ultimate plea bargain. And it gets worse, illustrated by this additional finding:
- Grand juries support indictment requests from prosecutors at such a high rate that, according to legal scholars, "a competent prosecutor can indict a ham sandwich."
Of the 20-plus indictment requests our grand jury voted on, we rejected one. And that time, the prosecutor returned and asked us a range of questions on where they went wrong. Why? Because prosecutors can go to another grand jury and ask for an indictment again. I began to realize that the way things were set up, a grand jury was not so much a Constitutional shield as it was a rubber stamp for indictments and plea bargains, with no "reasonable doubt" test ever being met by anyone! And sometimes—maybe 1 percent or maybe 10 percent of the time—innocent people were pleading guilty to felonies. That is, poor, minority people were sometimes pleading guilty to felonies, even if they were innocent.
III. The Same People from the Same Neighborhoods
All places have great strengths and potential—even ones facing serious problems and public safety challenges or struggling economically. These places are often more feared than supported outside their own boundaries, and the approaches taken by police, educators, and landlords are sometimes morepunitive, the opposite of privilege, than is warranted or effective. The forces within these communities close ranks among themselves much of the time as a result.
Our jury learned right away that the court process was itself not trusted by most of the people brought before us. Ratting and snitching were viewed by many as akin to the crimes we were reviewing. One witness sprang away from the stand, claimed to be "on every drug" and begged to be let go out of fear for his family. Others calmly lied to us, and others laughed and joked as they were lying. These place-based conditions may result in a cycle of crime and community-based fear, but not because the people living there are genetically predisposed, or are not possessed of American values. There's just no trusted substitute for those with influence who live in the community itself.
One day when we didn't have anything on our regular docket, we were told we would be handling the "RIP" cases that day. RIP cases are for potential drug indictments. These were brought to us to complete, soup to nuts, in less than an hour. A detective or police officer was interviewed by the prosecutor, we were given instructions, and we voted. While most of these cases struck us as credible, two related concerns arose. First, drug use in middle-class or affluent places is also high—witness opioid abuse—but since the methods of dealing are more visible and dangerous in poor places, we were only seeing those. Second, since the drug trade in poor places requires arming one's self, almost all the indictments carried counts of violent crime that result in a much harsher outcome for those involved.
I recently shared with a friend my sense of not being able to move past the experience. She reminded me that what I cannot "move past" is healthy, in the sense that I can no longer dispense with empathy and disregard painful things taking place in my community. According to this friend, "it makes the 'knowing' worth the pain, as we can become more tender and compassionate beings." I think she's right. So I'm no longer trying to move past these and other profiles from my community:
- Mom. She was one of our first cases, a young mom who was street smart and street tough. She was a witness to her own assault by a recent boyfriend. Near the end of her testimony she looked to our jury, tears rolling down, and begged us to help her find another place to live so she could focus on her kids' education and get a good job.
- Bird of Prey. Some witnesses came before us in orange jumpsuits and shackles. This man in his 50s had seen it all. He looked at us with the curiosity and quiet intensity of a bird of prey. At first he scared me. But by the end of his testimony, I just realized he was a quiet, introspective man, aware of and accepting his fate in life, with stoicism and a well-schooled alertness to the next situation where he'd have to glide away or attack.
- Zac. My son's name. He's in the Marine Corps, which was a reasonable decision on his part given his limited "executive functioning" capacity. This witness, also in shackles, spoke in the same cadence and determined but easygoing tone of my own son. He was able to repeat from memory five different accounts of a carjacking gone to murder, told to him at different times. His accounts were so consistent, yet at the same time so varied and nuanced, that they broke my heart, thinking of his lost, brilliant potential.
- Off-Duty Guard. A man supports his wife and two daughters, one with severe learning disabilities. The other daughter befriends a loafer who refuses to leave this man's house for months. He finally calls the police, who briefly visit and tell him there's nothing they can do. Thirty minutes later, 911 is called on a shooting and cold-blooded murder. The man who was licensed and trained to use a firearm at work to protect others' property will no longer be able to protect or occupy his own home. We voted to indict this man with great reluctance.
- Responsible Family. On TV, certain families from hard places can be depicted as loony, irresponsible, and full of drama. Upon hearing of their 16-year-old son's involvement in a high-profile shooting being broadcast on local news, this family gathers up their son and turns him in. They stay with him and support him as he faces multiple felony indictments, but never waver in their conviction that their son needs to learn responsibility. This from one of DC's "bad neighborhoods."
- Phone and Metal Pipe Pals. Two 20-something friends get into a cellphone beef, with one taking the other's phone and running away with it. The other friend chases him into an alleyway, where the phone thief picks up a metal pipe to back away his temporary foe. A 911 call sets the process in motion for a multicount felony indictment request, including the parents, for obstruction of justice. Our jury voted this one down, not due to the probable cause test, but because "if this happened in an affluent place in DC, it would be never have gotten to us."
Both the accused and the victims we came to know often brought us pain and sorrow—the "knowing" so eloquently understood by my friend. But they also brought us hope and inspiration—especially victims of abuse. Especially the children we met, who at times were shrugging off what we could hardly hear.
IV. "Thank God for Grand Juries"
One other important thing I took away from grand jury duty was a fuller awareness of the strong motivation among the professionals we encountered to meet their own immediate and case-driven objectives, which were to secure a "yes" vote for the requested charges and an official indictment as efficiently as possible. At one point a prosecutor who was getting to know us well said, "Thank God for Grand Juries." Prosecutors know that a thoughtful grand jury will ask questions that help them think through their cases and address flaws in their arguments and evidence. But more important, grand jury votes—almost always affirmative—enable the targeted multicount indictments to go on record and put the plea bargaining process in motion. Here are some of the specific examples of the things prosecutors say that reinforce my perspective:
- "I've clearly established probable cause—any questions before you vote?" This was a commonly used device that prosecutors used on a lay jury to basically intimidate them to give a "yes" vote. Prosecutors would almost invariably ask us this question, staring at us with keen readiness to argue down any thoughts of a "no" vote, before we were left to the deliberation and voting tasks.
- "You've seen enough evidence to determine probable cause." Grand juries technically may call additional witnesses or request additional evidence, yet we never once did so. Why? Because prosecutors were highly skilled in redirecting our requests into explanations and reinforcement that we were not a petit jury, and only needed enough evidence to determine probable cause.
- "You have 15 minutes, and today is my deadline." On occasion prosecutors explained to us that a 100-day allowable period to secure an indictment on a case was expiring that very day or the next. Given our dockets and scheduled breaks and end times each day, we were regularly in a situation where we had to rush through deliberations and votes to support that process.
- "So now that you've agreed to put your video interview on the record…" Some prosecutors would ask victims to go back over their recorded testimony, to the point where they became upset in front of us. They would do this gently and supportively in tone, but we often asked each other afterward, "Why was that necessary when we could just read or watch what's on the record?"
- "Oh, is that still on the screen?" Again, some, but not all, prosecutors would leave upsetting pictures on a video or overhead screen for a few extra seconds while they searched their papers, making sure we were too upset to let anyone get away with the crime at hand.
- "This is technically assault and kidnapping with a deadly weapon." The written laws and standards for things like assault and kidnapping can be "jacked up" by prosecutors, I think to add counts to indictments without them really being appropriate. We had a case where the accused allegedly grabbed and held a victim who was falling, and were told that this justified a kidnapping count.
- "Danny." This quote looks different than the others, right? For a contrasting example, one prosecutor actually explained both sides of the argument for indicting the accused before we voted on the case. He even shared with us what he thought the chances of conviction were in a petit jury trial. He went back over the facts of the case and answered our questions until we had none left.
We found the police officers we met to be reasonable, respectful, and diverse in their backgrounds (age, race, gender). The detectives we encountered were also generally credible. What was troubling about law enforcement officers involved in our cases was how different their practices seemed to be in high-crime neighborhoods. Their approach appeared to be far less relational and much more task oriented than I've experienced when calling an officer or other emergency response professionals myself. I now understand that the "structural" elements of what happens in reality—how work, policies, and procedures operate and result in outcomes and impacts that may be expedient, and may seem normal, but are unfair and inequitable.
V. What We Can Do
This list of suggestions is by no means conclusive, and my hope is that many of you have better and more ideas than these:
- A grand jury attorney. If our grand jury had our own legal counsel as a nonvoting member, they would have called out the above-mentioned prosecutor strategies, which would have the effect of limiting them in the first hand. They would have also reinforced the probable cause rules we applied for each count that sometimes were unclear to us as laypersons. Finally, they would have provided the sort of closing guidance that Danny provided us.
- Time to process and request more evidence. There are rules for how many days a prosecutor can take to build a case into a request for indictment. How about rules for giving a grand jury the time they typically need to deliberate and vote on a complex case? We had the same amount of limited time for all our cases, regardless of how much evidence we heard or how many counts we were voting on.
- Grand jury and foreperson training. How about a full-day training orientation for new grand juries, including some observed role play and coaching on deliberating and voting? This training would be followed up on periodically—maybe every week or two—to check on how the grand jury was operating. When we were told ours was working well, we were also told that other juries were dysfunctional.
- Increase the number of required votes for indictment. When you have 23 jurors and only need 12 for an indictment based on a probable cause test, it's nearly impossible NOT to get them. For the more controversial cases we heard, they would garner 14 to 16 votes, but still move along as if we had voted unanimously. So, set the bar at 15 instead of the simple majority of 12.
- Independent review of plea bargains. Why not have negotiated plea bargains reviewed by an independent judge who has to approve them in light of the grand jury record? This would serve to expand the role of grand juries so we could easily have recorded advice on the overall strength and seriousness of the charges within a case, and the strength of the evidence we heard, rather than voting and disappearing.
- Minimum sentencing laws and compensation of public defenders. I've put two ideas together as they both are root causes for the trend toward plea bargaining that were not in the minds of the Constitutional framers. These laws and reward structures need to be researched for their impact on due process under the Sixth Amendment. I would add here that rules might be needed to limit "trumping up" charges that might be technically correct but not appropriate.
- Patrol and respond to 911 calls with caseworker support. Stepping further outside the grand jury room, I'm aware that in some major cities this very strategy is being tried for homeless populations or calls to the police involving domestic violence. Human services professionals are very well-equipped to join forces with law enforcement to ensure the responses are de-escalated as often as possible and those involved can be supported longer term.
- Increased public awareness about criminal grand juries. There needs to be a strong push here, including prosecutors and detectives speaking about their work to the public they serve. This education would also include the courts publishing and posting data similar to what I was able to find so easily on the Internet, including how often criminal indictments result in plea bargains instead of jury trials, and the related patterns and trends by poverty level and race.
- Use criminal indictments as data for preventive human services. It's one thing to punish felons and separate them from the society. But it's another to use aggregated data to support investing in neighborhoods needing to break out of the chronic cycles being identified. Instead of bringing constant patrol cars or a vigilante to a neighborhood with a youth loitering problem, bring a ball field or basketball court, employment center, or volunteer center.
- Changing the narrative about crime and criminals. As long as we depersonalize what goes on in poor and minority areas—or respond to it with fear translated to some form of putative anger— we won't succeed in helping all Americans achieve their potential, or at least have a fair shake at doing so. Using communication research to reframe the conversation about "weatherproofing" these neighborhoods and families is the work at hand.
This experience and reflections marked the beginning of related strategies we're advancing at APHSA.
I can't stop empathizing with those voices: Mom, Zac, the Responsible Family, the Phone and Metal Pipe Pals, the Off-Duty Guard, and even the Bird of Prey.
And I can't stop wanting to cut down on how many Grand Jury Ones we need.
Phil Basso is the Vice President of Strategic Mobilization at APHSA.