What We Can Do

By Phil Basso, Deputy Executive Director, APHSA VIEWS 3

As for me, this is the end of a blog series but more so the beginning of related strategies we’ll be advancing at APHSA...


(This is part 8 of an ongoing series, Structural Inequities in the Criminal Justice System: A Personal Account.)


Ever since my grand jury duty and in writing this blog, I’ve been reflecting on the ways that the structural inequity I was awakened to could be impacted over time for the better. Looking back on my own postings, there are actually quite a few practical ways to do so. This list of suggestions is by no means conclusive, and my hope is that many of you have even better ideas than these:


A Grand Jury Attorney. In my last posting I noted a number of ways that prosecutors skillfully worked to achieve their objective of a vote in support of their requested indictment. If we as a grand jury had our own legal counsel as a non-voting part of our group, they would have called out these prosecutor strategies which would have the effect of limiting them in the first hand. They would have also reinforced the probable cause rules we applied for each count—sometimes these were unclear to us as laypersons. Finally, they would have provided the sort of closing guidance that Danny provided us.


Time to Process and Request More Evidence. There are rules for how many days a prosecutor can take to build a case into a request for indictment. How about rules for giving a grand jury the time they typically need to deliberate and vote on a complex case? We had the same amount of limited time for all our cases, regardless of how much evidence we heard or how many counts we were voting on.


Grand Jury and Foreperson Training. Our training consisted of a video and our foreperson received a bit more 1-on-1 support, but not much. How about a full-day training orientation for new grand juries, including some observed role play and coaching on deliberating and voting? This training would be followed up on periodically—maybe every week or two—to check on how the grand jury was operating. When we were told ours was working well, we were also told that other juries were pretty dysfunctional.


Increase the Number of Required Votes for Indictment. When you have 23 jurors and only need 12 for an indictment based on a probable cause test, it’s nearly impossible NOT to get them. For the more controversial cases we heard, they would garner 14 to 16 votes, but still move along as if we had voted unanimously. So set the bar higher instead of the simple majority of 12.


Independent Review of Plea Bargains. Getting a bit broader-minded with these strategies, why not have any negotiated plea bargains reviewed by an independent judge who has to approve them in light of the grand jury record? This would serve to expand the role of grand juries in that we could easily have recorded advice on the overall strength and seriousness of the charges within a case, and the strength of the evidence we heard, versus voting and disappearing.


Minimum Sentencing Laws and Compensation of Public Defenders. I’ve put two ideas together as they both are root causes for the trend towards plea bargaining that were not in the minds of the Constitutional framers. These laws and reward structures need to be researched for their impact on due process under the Sixth Amendment. I would add here that rules might be needed to limit “trumping up” charges that might be technically correct but not appropriate.


Patrol and Respond to 911 Calls with Caseworker Support. Stepping further outside the grand jury room, I’m aware that in some major cities this very strategy is being tried for homeless populations or calls to the police involving domestic violence. Human services professionals are very well-equipped to join forces with law enforcement to ensure the responses are de-escalated as often as possible and those involved can be supported longer-term.


Increased Education and Awareness about Criminal Grand Juries. I had no idea how common grand juries are and what they do. There needs to be a strong push for public awareness, including prosecutors and detectives speaking about their work to the publics they serve. This education would also include the courts publishing and posting data like what I was able to find so easily on Google, including how often criminal indictments result in plea bargains instead of jury trials, and the related patterns and trends by poverty level and race.


Use Criminal Indictments as Data for Preventative Human Services. It’s one thing to punish felons and separate them from society. But it’s another to use aggregated data to support investing in neighborhoods needing to break out of the chronic cycles being identified. Instead of bringing constant patrol cars or a vigilante to a neighborhood with a youth loitering problem, bring a ball field or basketball court, employment center, or volunteer center.


Changing the Narrative about Crime and Criminals. So I saved the best and most difficult idea for last. As long as we depersonalize what goes on with crime, victims, and criminals in poor and minority areas—or respond to it with fear translated to some form of putative anger—we won’t succeed in helping all Americans achieve their potential, or at least have a fair shake at doing so. Using partners and communication research to reframe the conversation towards providing a solid foundation and weatherproofing for these neighborhoods and families is the work at hand. See our blog posts on Framing.


I hope you’ve enjoyed reading along with this blog series, and that some of the ideas here can be advanced or reinforced in your work. As for me, this is the end of a blog series but more so the beginning of related strategies we’ll be advancing at APHSA.


I can’t stop empathizing with those voices any more: Mom, Zac, the Responsible Family, the Phone and Metal Pipe Pals, the Off-Duty Guard, and even the Bird of Prey.


I can’t forget my fellow grand jury members and the combination of thoughts, feelings, and attitudes with which we all struggled together to perform our service.


I can’t forget the data I easily found about a Constitutional shield becoming a rubber stamp factory.


I can’t shake off knowing that Crack Islip is actually a pretty cool place to spend time with neighbors.


And I can’t stop wanting to cut down on how many “Grand Jury Ones” we need.


*Check back soon for voices from the grand jury. Catch up on the full series here.