The Normative Case for Normative Grand Juries
Wake Forest Law Review
UVA Law Faculty Affiliations
The contemporary criminal justice system disposes of order-maintenance cases without much of any substantive litigation or public influence or oversight. Rather, these prosecutions are typically products of professional decision-making and are resolved by summary guilty pleas. This is no new insight. Indeed, a number of scholars have offered a range of reforms to address the perceived problems of assembly-line criminal justice. Inordinately, however, these adjudicative reforms tend to focus on the wrong question - the question of legal guilt. Instead, the issue with many order-maintenance prosecutions is not that the charges lack legal merit, but that the charges are equitably unfounded. Thus, the more appropriate focus of reform efforts is on the nontransparent discretionary charging decision. In this essay, which I prepared for a conference on community prosecution and defense, I propose a different kind of public participation in criminal justice. What I have in mind is a misdemeanor grand jury that would address only the normative - or extralegal - question of whether a public-order charge is equitably appropriate in the first instance. In offering this proposal, I do not claim that lay intuition is decidedly superior to professional perspective, only that some lay involvement is better than none when it comes to resolving equitable charging questions in normatively borderline cases. And, significantly, such a proposal is also consistent with the grand jury’s traditional role as the robust, transparently democratic, and decidedly equitable voice of the people in the charging process. Of course, questions remain over how to structure an efficient lay equitable screen that minimizes dangers of arbitrary or discriminatory decision-making. However, the possibilities for effective reform at least deserve exploration, and that is all I intend to do here. In any event, I offer this rough-and-ready proposal not as a universal solution, but as a potentially attractive option for prosecution offices that are committed already to the community-justice enterprise.
Josh Bowers, The Normative Case for Normative Grand Juries, 47 Wake Forest Law Review 319-359 (2012).