Up until now, I have not had anything to say about the events in Ferguson. I’m not an expert on policing or racial profiling, and sometimes you have to know your limitations. But I am fascinated by the deliberations of the grand jury, which are a throwback to another time.
The most common phrase that goes with “grand jury” nowadays is “ham sandwich.” Not so here. Ordinary citizens are carefully considering whether an indictment or “true bill” should issue in a controversial case. This is what the Framers had in mind when they wrote the grand jury into the Fifth Amendment, and they were drawing on a rich colonial and British tradition of grand juries shielding people from wrongful accusations or expressing the community’s view on a criminal prosecution.
The trouble now is that this only works when the case reaches an astronomical level of visibility. In ordinary cases, an information is at least as good, if not better, at serving the functions of a grand jury (especially when combined with some form of prosecutorial accountability.) This may explain even ardent supporters of incorporation seem uninterested in reversing Hurtado and making the grand jury requirement applicable to the states.