Here are two fictionalized cases where the arrested individuals were fortunately not indicted.
Case 1. A young male stormed out of a court room after the judge indicated he should leave. In storming out, he banged the door against the wall and the door knob put a hole in the wall. He was arrested and charged with interference with government property. This would be a $20 repair and, if convicted, the young man would have a felony record.
Case 2. Young man drove through a red light and a police officer pulled him over. The officer claimed she smelled marijuana coming from the vicinity of the young man’s car as he was going through the red light. This, she claimed, gave her probable cause to search the car. She didn’t need that probable cause though, as the driver consented to the search. No marijuana was found. The officer did find two pills—Adderall. These were the only drugs found. The young man is college-age; the drug is commonly used in college to help students concentrate. (Often without prescription; this is not wise.) The driver was arrested for possession of a controlled substance and running a red light. If convicted, he would have a felony record.
Here’s the thing.
Police officers use discretion when they decide to arrest or not to arrest any particular individual. They do not pull over every car that runs a red light. They do not pull over every individual they believe has marijuana. (They certainly do not pull over every individual that has Aderall without a prescription.) They use discretion.
The District Attorney and his or her subordinates also use discretion. Always. In fact, there they are quite clear about this. For one sort of example, in GA, they do not bring charges of sodomy even though it is against the law* (that is, they don’t bring such charges unless using it as a way to convict a rapist or child molester or someone charged with some other actually harmful charge). They use their discretion in this way because they realize many people engage in the activity for consensual and enjoyable activity wherein no one is harmed–and those people shouldn’t face penal sanction for this morally innocent activity. Indeed, the DA’s staff knows that the majority of voters do not want such people (themselves!) to face penal sanction. This entire set of crimes is thus simply ignored. Police officers do not seek to arrest anyone for sodomy since they know the DA won’t prosecute those cases.
Differently, the DA also uses discretion about what charges to bring against an arrested party. One DA might charge someone with battery while another would charge the same person in the same case with assault. Or aggravated assault. One may add the charge of making terroristic threats; another might not. Frequently, the charges that the DA seeks indictment for are the charges they think that they can make stick in a trial—and only those. Sometimes this has to do with who the judge will be (and the ADA handling the case knows which judge it will be.)
So the question: Why shouldn’t the members of the grand jury asked to indict a case also use their discretion? I would submit that grand juror’s should use their discretion in order to send messages to the DAs that they will not indict certain sorts of charges. If the DA gets this message about those sorts of charges, they will send the message to the police and the police will not arrest people for violating those laws. Just as the police don’t arrest people for sodomy because the DA does not prosecute people for sodomy, for example, police would not arrest people for possession of marijuana if they knew the DA could not indict anyone for it.
Some people, of course, think that we should have laws against marijuana usage and so will want to indict people for violating those laws. But some people on grand juries don’t think these are just laws or don’t think they are a good use of state resources even if they are just. I think those people should try to persuade the others. It may be that the others have never really thought about these things. It may be that they are just responding as humans typically do and following the authority’s (the ADA) demands. If people saw through the issues and would refrain from indicting the young men in cases 1 and 2 above, they might be persuaded to do so more often.
*Added: a friend reminds me that such laws were rendered unconstitutional by Lawrence v. Texas. The general point remains.
This piece was originally published at Bleeding Heart Libertarians. You can read part two in the series here.