St. Louis County prosecutors should have seen this coming. Photographer: Michael B. Thomas/AFP/Getty Images
Nov. 25, 2014 (Bloomberg) -- When was the last time you heard of a grand jury decision causing a riot? Well… never.
That's because grand juries are obscure relics of past practice, not designed to bear the full weight of a politically and symbolically important decision like the nonprosecution of police officer Darren Wilson for the death of Michael Brown in Ferguson, Missouri. The decision by St. Louis County Chief Prosecutor Robert McCulloch to put the issue neutrally before the grand jury was intended to create a sense of public legitimacy for whatever result followed, and also no doubt to deflect blame from the prosecutor's own exercise of discretion. It failed on both counts -- and with good reason.
The grand jury has its origins in a medieval English practice: the king, through his sheriff, would order a group of people to appear and report to the authorities the combination of rumor and common knowledge concerning who had committed a crime and needed punishing. The classic history of English law describes it this way: “The ancestors of our ‘grand jurors’ are from the first neither exactly accusers, nor exactly witnesses; they are to give voice to the common repute.” Long before there were police forces, the government had to rely on informed citizens to know what was going on.
The practice developed into an institution that validated accusations and therefore commenced prosecution. In the era when private individuals could bring criminal charges, the grand jury was a useful check on allegations, assuring that they had enough substance to go forward before the accused would be brought to the dock.
The Founding Fathers believed that grand juries had another use: blocking the government from bringing wildly unpopular prosecutions. In the grips of the republican spirit, the state ratifying conventions insisted on putting the grand jury into the Bill of Rights. That's why the federal government still uses them -- and a big reason that roughly half the states use grand juries in some form.
Since the 18th century, however, things have changed.
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