Policy & Practice December 2017

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 rea- sonable 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.

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 Poor, minority peoplewere sometimes pleading guilty to felonies, even if they were innocent.

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 ques- tions 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 sup- ported outside their own boundaries, and the approaches taken by police, educators, and landlords are some- times more punitive, the opposite of privilege, than is warranted or

“Thinking about what happens after I vote” started to seem awfully impor- tant 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 com- plexity, and therefore the cost, of criminal trials has risen dramati- cally since the Sixth Amendment was written. � Minimum sentencing laws, espe- cially for some drug-related crimes, have created much greater differ- ences between a plea bargain and what will happen if a person is con- victed 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

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December 2017   Policy&Practice