Many commentators in the United States—including a number of GAB contributors—have lamented the lack of robust anticorruption investigations at the state level, and have advocated the creation or strengthening of state-level anticorruption commissions (see, for example, here, here, and here). While there is much to be said for these proposals, the existing commentary often overlooks the fact that states already have a powerful institution with the potential to perform many of the functions that reformers hope to vest with the state commissions. That institution is the state grand jury.
When most people hear the phrase “grand jury,” if they know the term at all, they probably imagine a scene from some TV crime show where a prosecutor endeavors to persuade a group of average citizens to indict someone that the prosecutor believes has committed a crime. And indeed in most states, grand juries’ principal function is to determine whether a state prosecutor has “probable cause” to put a defendant on trial. (After the trial beings, a different jury—the “petit jury”—decides whether the defendant is actually guilty.) But grand juries don’t just evaluate the prosecutor’s evidence at the indictment stage. Grand juries also have robust investigatory powers of their own. Like some state anticorruption commissions, state grand juries have the authority to subpoena documents or other tangible things. But unlike state anticorruption commissions, state grand juries can also compel witnesses to testify, and can hold those who refuse in contempt. (Indeed, while witnesses can invoke their constitutional right against self-incrimination to refuse to testify in a criminal trial, no such right exists in a grand jury investigation.) Moreover, grand juries can not only return criminal indictments (their more familiar function), but grand juries can also issue public reports about unethical and unsavory behavior.
If wielded properly, these immense powers could help unearth evidence of wrongdoing. Moreover, grand juries’ investigative powers may be especially valuable in cases involving corruption. While it might seem radical to propose that grand juries exercise these existing but largely moribund powers to assume the role of anticorruption watchdog, this would in fact be a return to one of the grand juries’ traditional functions.
Grand juries have been a feature of America’s legal landscape since before the American Revolution. In the colonial and post-Revolutionary period, in addition to performing the indictment function, grand juries would issue public reports auditing public funds and evaluating the performance of public officials. In The People’s Panel: The Grand Jury in the United States, Richard Younger describes how early colonists relied on grand juries to protest corruption and government abuses at the local level. Over the next two centuries, many states further empowered grand juries to expose municipal corruption and government abuse through this public reporting function. In places like California, grand juries quickly gained the reputation as “enemies of municipal corruption.” For example, in the late 19th century, a grand jury in California took on the corrupt political bosses running San Francisco, issuing a public report that not only denounced fraud in local government but also identified by name individual city officials who had personally benefited at the city’s expense. The grand jury’s report led to the indictments of public officials for fraud and bribery and, also, to a new committee that set about drafting a city charter to remedy corruption in San Francisco. Some refer to that report as “the first attempt at a comprehensive search under forms of law for the causes and persons ultimately responsible for the class of municipal dishonesty now known as ‘grafting.’”
While California’s state constitution still requires that one grand jury “shall be drawn and summoned in each county” each year, other states have ceded the power of grand juries to district attorneys, thereby limiting the grand jury’s role in conducting investigations and issuing public reports. For example, grand juries only exercise reporting authority in about half the 50 US states. Furthermore, the scope of what grand juries can investigate varies considerably. In some places grand juries can publish reports critical of private parties, whereas in other states grand juries can only criticize public officials through their investigations.
Public reporting by grand juries has likely declined for many reasons, but two in particular stand out. First, as state prosecutors have become more professionalized, they have taken over many of the investigatory functions grand juries once performed independently. Second, critics have raised substantive concerns about grand jury reports, emphasizing that grand juries could, through their public reporting, harm individuals’ reputations with little legal or political accountability. Because the public is unable to distinguish between an “indictment” (which carries a formal criminal charge and requires probable cause) and a grand jury report (which does not), critics worry that those accused by grand jury reports would face substantial reputational harms without meaningful legal protections. Some critics have alsoworried that state prosecutors may pressure grand juries to issue reports suggesting malfeasance by the government’s political opponents in cases where the prosecutors lack sufficient evidence to secure a criminal indictment.
Though these concerns may be valid, they do not negate the value of state grand jury reports. Indeed, one of the major reasons that grand jury reports have proven so valuable is precisely because they can capture misconduct that is not formally indictable. In the words of the New Jersey Supreme Court “No community desires to live a hairbreadth above the criminal level, which might well be the case if there were no official organ of public protest.”
Given the immense power of state grand juries to investigate and report on corruption, civil society organizations should consider how to reinvigorate their use, while at the same time ensuring sufficient checks to prevent abuse. One idea might be for states to use state grand juries as a supplement to state anticorruption commissions or state ethics commissions, which exist in nearly every state. For example, states might consider legislation recommending that state grand juries review state anticorruption commission reports and, where necessary, conduct further inquiries using their immense investigative powers. In this way, state grand juries would bring these powers to bear only when another body—the state anticorruption commission—has raised sufficient suspicion that something unethical has transpired. State grand juries could, in turn, make their final reports public to ensure maximum transparency and accountability. To minimize the risk to individuals’ due process rights, state grand reports should not publicly accuse individuals of a crime unless the grand jury simultaneously returns an indictment. In this way, grand jury reports will not accuse individuals of criminal wrongdoing when there’s insufficient evidence to support the charge, but will still call public attention to unethical behavior. States could also provide for pre-publication judicial review of state grand jury reports to ensure that state grand juries do not use misleading phrases suggesting a legal offense has been committed, while still allowing the reports to identify behavior that is unethical or wrongful.
Activists and commentators have rightfully been looking for ways to empower state anticorruption commissions. But the state grand juries are actually more promising, given that they have important powers that anticorruption commissions typically lack (and are not likely to get in the near future). Activists pressing for more accountability at the local level should take a cue from the past and find ways to invigorate the use of state grand juries in the antcorruption fight.
CORRECTION: I say above that witnesses before state grand juries “can’t invoke their constitutional right against self-incrimination.” This statement is slightly misleading and deserves further clarification. As a formal matter, witnesses before grand juries do retain their fifth amendment rights and may invoke them. However, the important caveat is that witnesses before a grand jury cannot assert their fifth amendment rights when they’ve been granted immunity as a condition for their appearance. Because certain states, like NY, routinely grant immunity, witnesses appearing in those states cannot invoke the fifth amendment.