Bond was created as a way to allow people who are awaiting trial to get out of jail, so that they would not be punished for merely being accused of having done a criminal act. Over time, bond has become a tool to keep people in custody rather than helping them to get out of custody pending trial.  We are used to thinking of the 8th Amendment in terms of cruel and unusual punishment, and the death penalty.  However, that same amendment guarantees the right to be free from excessive bail.  We should pay attention to the whole amendment.

It is not uncommon for bond to be set at a level that is out of reach for the defendant as a means of “keeping the community safe”, or ensuring that the defendant shows up for trial. Intentionally setting bond at a level that cannot be paid, turns the system on its head.

There are good reasons for wanting to keep a community safe, but since bond is inherently a financial tool, all it does is keep the community safe from poor people. According to this system, an accused murderer with financial means is somehow less dangerous than a poor person accused of trespassing or public drunkenness.  It sounds an awful lot like the issue in the affluenza case, in Texas where a teen was given probation after killing 4 people while driving drunk because he was too spoiled to understand the difference between right and wrong.  If you have enough money to make a high bond, you may have enough money to flee to a jurisdiction where you can hide and avoid appearing in court.

Speaking of appearing in court, there is no correlation between the amount of bond that is paid by an individual, and their reliability in appearing for court.  There are much better metrics to measure the likelihood that a defendant will appear in court than if they can make bond.

It seems like we forget sometimes that people are innocent until proven guilty not innocent until arrested.  It is unconstitutional to punish a person for being poor, just like it is unconstitutional to punish a person for merely being accused.

Inspired by this great story on NPR yesterday.

“Is America Engaged in a Vicious Cycle of Jailing the Poor?”

We are at an inflection point. What is the power of a search warrant? Is it legal to intentionally create a space beyond the power of that warrant? And is it legal to force a person/company to create a new way into a product they created?

The modern electronic communication space pits two legal concepts from 1789 to determine privacy rules in 2016.On one side is one of the most well known rules of the land, the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
And the All Writs Act:
(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.


The general rule for search is that barring some exceptions if the government wants to search a person, their papers, their home, or person, they needed a search warrant. There has always been a special level of protection that was provided to a house. There has long been a presumption that any search of the house of an individual required either the consent of the individual (or a person with the right to admit someone into the house) or a search warrant.

Until 2014 in Riley v. California there was no similar requirement for a cell phone. A cell phone was considered to be like a wallet or purse. An inventory search of a person when they are arrested, gives the police the right to inventory the contents of that wallet or purse.

Cell phones were a treasure trove for the police, “inventorying” pictures and text messages could not only build the case against the person arrested, but against their friends and associates. In Riley, the Supreme Court determined that cell phones contain so much intimate information that they are much more like a home, than a wallet.
Partially, in reaction to the revelations of Edward Snowden, and an attempt to compete in international markets, electronics manufacturers began to create stronger encryption, and more secure phones. This new level of strong encryption makes it nearly impossible to get into a locked cell phone. The government addressed this issue in Riley, saying that the encryption along with the time it takes to get a warrant could make it too easy to destroy the information on the phone. The Court did not find this possibility to be sufficiently persuasive to allow a warrant exception.

Having a phone with strong encryption can potentially make it warrant proof. It would be like hiding evidence in a place where the only way the government could get to it would destroy the evidence, like a sealed vault in a heist movie. Any attempt to access the contents could destroy them.

Since a search warrant is ineffective against a “black box vault” like a top of the line modern cell phone, the government had to explore other options. Thankfully for them, they were able to find a potential skeleton key law from 1789, the All Writs Act.

Using this law, the FBI, and the US Government asked a court to issue a writ (a court order) to force Apple to create a piece of software that would prevent an iPhone from automatically wiping its memory after too many attempts to unlock.

This is the legal question that needs to be addressed. Under current law, is it legal for the government to force a person or company to speak against their will? Computer code is generally considered speech, and falls under First Amendment protection. There is a long tradition in this country of not forcing speech, even if it is self incriminatory in nature. It is not at all clear that the code Apple is being asked to create would undermine security in newer iPhones since the phone in question is an iPhone 5C.

The larger legal issue is if a court decides that the All Writs Act can force code for one phone, then that rationale will spread to more and more phones. The limiting principle is what is agreeable to the usages and principles of the law.
In another case of the FBI asking Apple to unlock a phone, and Federal Magistrate Judge ruled that the All Writs Act does not apply where Congress had the opportunity to act. In the eyes of the court in that case Congress could have acted proactively to say that companies must allow for a back door to access phones. The failure to do so, does not give the courts the right to step in to that open space.

While there is no law against making a black box safe. A safe like that would be prohibitively expensive. What terrifies law enforcement, and potentially a large section of the population, is that these black box safes are in the pockets of most people you see on the street. That much information hidden from the reach of law enforcement can rapidly become a block to effective criminal investigations.
Both of the laws that are at issue here are from 1789. It is time for the people to decide how much privacy we want. Unless new laws are written, the government most likely cannot force a company to unlock a device.

“Are you saying that there are circumstances under which burning someone alive would be constitutional?”

Justice Samuel Alito asked that question to Robin Konrad, the Assistant Federal Defender arguing against the current protocol, which Oklahoma and a number of other states use to carry out the death penalty.

For most of the history of the United States, the death penalty has been legal at least in the case in the case of certain crimes. We find ourselves at a potential turning point when it comes to the death penalty in the United States.  The constitutionality of capital punishment is determined by the eighth amendment to the United States constitution.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” 

The Supreme Court addresses capital punishment by determining what, is cruel and unusual punishment.  Capital punishment jurisprudence breaks down into three categories, 1) What crimes are worthy of execution 2) Who can be executed 3) What are acceptable means of carrying out that execution.  Over the course of this article we will address the evolution of these three questions.  Then we will analyze the current, rapidly changing landscape of capital punishment, including states which have abolished capital punishment, states which have instituted moratoria, and those that have moved to re-authorize previously discarded methods of capital punishment.




What Crimes Are Worthy Of Execution?

Throughout the history of the United States the list of crimes which are worthy of capital punishment has changed significantly.  In colonial times, crimes such as “striking one’s parents”, and “denying the one true God” were punishable by death.  Famously rustling cattle was at one point punishable by hanging.  For much of our history rape, kidnapping, and treason in addition to murder were crimes that merited the imposition of capital punishment.  The list of crimes that are punishable by capital punishment has grown shorter and shorter over time.  Now capital punishment is limited primarily to crimes where a death has occurred, and generally even then only when the crime was especially gruesome, or where multiple deaths are involved.  That change in when the death penalty can be applied is commonly referred to as “evolving standards of decency.”  This standard came about in Trop v. Dulles in 1958.  While it was not a death penalty case, the language of evolving standards of decency was quickly adopted in capital punishment jurisprudence, and has been used in many cases by the Court.  We will discuss this theory’s effects on who can be sentenced to capital punishment in a later section.

At this time there are two very well known capital cases in the news, the capital sentence of Dzokhar Tsarnaev, and the trial of James Holmes (the Aurora Theater shooter.)  In both of these cases, the crimes are particularly barbaric and created a spectacle.  These are the poster cases for capital punishment, killings of multiple people where the killer survived (and pleaded guilty.)  The modern standard of decency has evolved to the point where crimes, which result in the death of one or more people, are eligible for capital punishment.[1]  Treason and the hijacking of an airplane are still considered death eligible in most if not all jurisdictions, there have not been any cases challenging the constitutionality of these provisions.  The last documented execution for treason was in 1862 John Conn was executed by the Confederacy for treason.  The Rosenbergs, were executed in 1953 for espionage.  I am not aware of any executions for hijacking an airplane, presumably because the hijackers did not survive, or they landed in a foreign country.  Just as the range of so called capital crimes has narrowed over time, so have the categories of defendants who are eligible for capital punishment.

Who Is Eligible For Execution?

This is where the Supreme Court has been most active since re-instating the death penalty in 1976, after a four year moratorium.  In determining eligibility for the death penalty, the Court has developed three main criteria.  The most significant criteria is the culpability of the individual.  Culpability goes beyond merely if they are guilty of the crime for which they were convicted.  That has already been determined by the trial court.  This is a more in depth question of how well did they truly understand what they did, and what it means to take the life of another person.  Here again, evolving standards of decency play a role in determining what category of person is eligible for the death penalty.  This evolution is most clearly visible when it comes the age of those sentenced to death.  Maryland was the last state to execute a prisoner who was under eighteen at the age of execution.  Leonard Shockley was seventeen on April 10, 1959 when he died in the Maryland gas chamber.[2]

In 1988 the Supreme Court heard the case, Thompson v. Oklahoma, where the imposition of the death penalty on a fifteen year old was challenged based on the failure of the trial court to properly instruct the jury as to the mitigation of Thompson’s age on his culpability.[3]  The Supreme Court found that the imposition of the death sentence on a juvenile under the age of 16 was in violation of the 8th Amendment prohibition on cruel and unusual punishment.  The Court looked to both science and the actions of states who do allow capital punishment.  The Justices found that there was diminished culpability on the part of a juvenile, because the juvenile brain is still developing, and that all other states confronted with the question of a minimum age for the imposition of the death penalty have decided that crimes committed by persons under sixteen were not eligible for the death penalty.

The Court again confronted the question of the minimum age at the time of commission of a crime should be eligible for execution in Roper v. Simmons (2005).[4]  Roper was challenging the constitutionality of imposing the death penalty on a juvenile.  Roper rested his challenge on the lack of moral culpability on the part of a juvenile, because they are still maturing, and their brains are not sufficiently formed to develop sufficient culpability and maturity to be eligible for the death penalty.  They also cited the fact that a consensus had developed among the states, that execution of juveniles was no longer allowed in the majority of states.  Roper also emphasized the fact that execution of juveniles was no longer common in western countries, or in the world as a whole.  Fifteen years prior the Supreme Court had found that there was not a sufficient consensus among states to find that the evolving standards of decency in our society had determined that capital punishment was cruel and unusual in violation of the 8th Amendment.[5]  Between 1989 and 2005 the national and international landscape had evolved sufficiently that the Court agreed with Roper, and found that the execution of a juvenile was cruel and unusual under the 8th Amendment, and therefore unconstitutional.  Roper was one of the first 8th Amendment cases where the Court looked explicitly to legal practices outside of the United States to determine if a punishment was cruel or unusual.

How May Capital Punishment be Carried Out?

The most common means of carrying out executions is to use lethal injection.  This is generally by using a three-drug cocktail, a painkiller, a paralytic, and potassium chloride.  The Supreme Court authorized execution by lethal injection in Harvey v. Chaney, 1985.  They stated that the use of a pain killer sufficient to induce a coma, and a paralytic to prevent the convict from thrashing about were required to ensure that lethal injection was neither cruel nor unusual. Recently this three drug protocol has been increasingly difficult to implement as the first drug in the protocol has become unavailable.  Initially states used Sodium Thiopental as the painkiller drug which would allow the remaining drugs to be used without causing undue pain.  After a public relations campaign by those opposed to capital punishment the companies who manufactured the drug stopped making it available for use in executions.  States then turned to Pentobarbital, another painkiller which has the ability to put a prisoner into a coma state where they would not feel the extreme pain which the next two drugs inflict.  However, when the company which manufactured pentobarbital was purchased by a european drug manufacturer, they stopped selling it for the use of executions, as required by european regulations.  Using drugs for executions is complicated as it goes against the hippocratic oath to do no harm.

The unavailability of these drugs has led states to try out different methods and drugs.  Oklahoma along with a number of other states has been using Midazolam as the pain killer in the protocol.  Midazolam is a controversial drug to use, as it may not be as effective as the earlier drugs.  There have been some notable issues with its use. Clayton Lockett was to be executed using Midazolam as the pain killing agent.  The execution team had a very difficult time finding a suitable vein for them to administer the drug, but finally found one.  Lockett appeared to be in a coma like state, but as the last two drugs were being administered he began to mumble, and shake in pain.  After 33 minutes the execution was stopped.  Ten minutes later Lockett was dead anyway.  From a heart attack rather than the drugs.

This high profile miscue, along with others led three inmates on the Oklahoma death row to challenge the constitutionality of the use of Midazolam in executions.  Inmates were not the only parties to react to concerns about Midazolam.  A number of states began authorizing, or in some cases re-authorizing other methods of execution.[6]  Utah for instance re-authorized the use of the firing squad as a backup means of execution should lethal injection become unavailable.[7]  There Delaware, New Hampshire, and Washington state have hanging as their backup method.  Five states allow for the gas chamber as a backup method, including Oklahoma.  Eight states allow for electrocution.  The court has not banned means of execution as unconstitutional.  States have merely moved to what are perceived as more humane methods of execution.[8]  Electrocution was seen as gruesome since the inmate would convulse and there were times when it would take a long time to complete the execution.  Gas chambers were generally shunned as being too reminiscent of means of execution used by the Nazis.  Lethal injection is seen as a more “medical” method.

Recently the Court ruled on the claims in Glossip v. Gross, 576 U.S. (2015).  The Court upheld the use of Midazolam as an acceptable part of the protocol.  They did this only in part because they did not find that the evidence that Midazolam did not sufficiently guard against the pain of the following drugs.  The more interesting, and perhaps troubling foundation of the decision is what seems to be backwards reasoning based in Baze v. Rees, 553 U.S. 35 at 47.

Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, “[i]t necessarily follows that there must be a [constitutional] means of carrying it out.”      

This reasoning makes it impossible to find capital punishment unconstitutional, it is in direct conflict with the “evolving standards of decency” line of cases.  Glossip, has delivered a serious blow to attempts to get the Supreme Court to find capital punishment unconstitutional.


The Abolitionist Movement

While the Court has loudly proclaimed that it will not overturn capital punishment, the states have been less rigid on the issue.  We can divide the states into three categories, states which allow the death penalty, states which have abolished the death penalty, and states with a de facto moratorium on the death penalty.

The list of states which have abolished the death penalty has grown over the last few years.  There have been seven states which abolished the death penalty since 2007.  There are now 19 states which do not have an enforceable death penalty. The most recent additions to the list are Maryland, in  2013, and Nebraska in 2015.

Perhaps more cruel than maintaining capital punishment is having a moratorium on it, especially when that moratorium is simply on execution, and not on sentencing defendants to death.

[1] In 1988 Congress in response to contrary Supreme Court rulings passed the Drug Kingpin Act, which made high level drug dealing death eligible.  In 1994 Congress again passed legislation, in an effort to roll back Supreme Court rulings made 50 federal crimes death eligible.  There have not been any executions under these laws, so the constitutionality of these provisions have not been determined by the Supreme Court.

[2] Defendants were convicted of murder in the first degree and from a judgment of the Circuit Court for Dorchester County, W. Laird Henry, Jr., C. J., Rex A. Taylor, and E. McMaster Duer, JJ., the defendants appeal. The Court of Appeals, Henderson, J., held that the evidence sustained convictions as against both defendants.

Shockley v. State, 218 Md. 491, 148 A.2d 371 (1959)


[3] After noting that the Eighth Amendment’s prohibition against “cruel and unusual punishments” applied to the states through the Fourteenth Amendment, the Court held that the execution of a person under the age of 16 was unconstitutional. In noting the uniform ban among all relevant state statutes against the execution of one under the age of 16, the Court explained that such an act would violate the “evolving standards of decency that mark the progress of a maturing society.” The case was reversed and remanded Thompson v. Oklahoma, 487 U.S. 815 (1988)

[4] Roper v. Simmons, 543 U.S. 551 (2005) Roper challenged his death sentence after the Supreme Court decided Atkins v. Virginia, 536 U.S. 304 (2001) (Determining that execution of persons with mental disabilities violated the 8th amendment.)

[5] Stanford v. Kentucky, 492 U.S. 361 (1989) J. Scalia writing for the court stated that there was insufficient consensus among the 37 states which allow the death penalty to find that juveniles under 18 should be ineligible for the death penalty.

[6] All states which allow capital punishment have lethal injection as the primary method, or allow the inmate to choose lethal injection or another method (either the gas chamber or electrocution, depending on the state.)

[7] Oklahoma also allows the firing squad if both lethal injection and electrocution are not available. ( accessed July 3rd 2015

[8] Glossip v. Gross, 576 U.S. at 3 (slip opinion)(2015), Citing Baze v. Rees, 553 U.S. 35 (2008)  The last person to be hanged was in 1996, William Bailey in Delaware. The firing squad was last used in 2010 for Ronnie Lee Gardner in Utah, and the gas chamber was last used in Arizona in 1999 for Walter LeGrand.

J.P. List

As of January 1 2014 recreational use, possession, and sale of marijuana is legal in the state of Colorado. That sounds simple enough. However, that is just the beginning of the issue. What does it mean to be legal? Is it legal like tobacco or like alcohol?
The answer is neither of these, but it is much closer to alcohol than it is to tobacco. Unlike tobacco, the restrictions on marijuana go much further than the lawful age of use, and some location based restrictions. There are definite parallels with alcohol regulations, but that is not a perfect analogy either. Marijuana laws in Colorado are still evolving. That is one of the features of a common law system, the legislature writes the law, but it is not truly clear what it means until courts get their hand on it. The courts certainly will get their hands on the laws in Colorado. In fact, they already have, though it is taking them quite a while to interpret some of the laws. In this post, I will explore the current state of the law in Colorado, and the potential future of legalization.

As of now Marijuana is treated much like alcohol, it is available to individuals over the legal age, and like hard alcohol in Colorado, it is only available in specific stores. Consumption is also regulated in many different ways. For example, it is illegal to smoke marijuana on the street, or in public places. It is legal to have two ounces on marijuana on you at any time. However, there is a limit to the amount of marijuana allowed in your system at a given time when driving. At this time that limit is five nanograms of THC per milliliter blood. One of the odd side effects of legalization is that before this, there was no clear limit of the acceptable amount of THC in the blood. Now, we all need to learn what five nanograms of THC per milliliter means on a practical level. Unfortunately, I do not have a good example of what this is like. The rules for concentration of THC in the blood are unclear in the work place. Part of this is due to the nature of legalization. While Colorado as a state has said that marijuana is legal, the federal government has kept marijuana on the list of controlled substances. The Supreme Court of Colorado has been grappling with this question in a case called Coats v. Dish Network.

Briefly, Mr. Coats, was a paraplegic with a prescription for medical marijuana to treat symptoms associated with his condition. Dish Network had made some accommodations for his condition, and Mr. Coats was recognized as a leading customer service agent. Dish Network has a drug use policy, which prohibits the use of marijuana. When he was randomly selected for drug testing, he failed. Due to the failed test, Mr. Coats was terminated. He challenged the termination based on the fact that he was not using marijuana at work, only at home, and employers are not allowed to dismiss an employee for lawful activities outside of work. This case will go a long way toward deciding how firmly entrenched legalization will be in Colorado.

Prior to legalization, failing a drug test had predictable consequences. You fail you are terminated. Under legalization, those determinations get much more complicated. For example, if you are tested, and found to have alcohol in your system at work, it is assumed that you have been drinking on the job, since alcohol does not stay in your system very long. Marijuana however stays in your system for a long time, so it is harder to determine from a test, if a person has been using at work.

Drug testing is a standard procedure after an accident at work, and given that THC stays in your system well after you have used, what weight is given a positive test for marijuana in a state where it is “legal” for recreational use? Complicating matters is that there while there are regulations covering the concentration of THC in recreational marijuana products, there are currently no uniform testing procedures. Different procedures can give widely varying results for concentrations of THC. As it stands, although marijuana is legal in Colorado you are still using at your own risk, because of potential legal consequences. This uncertainty goes beyond the use marijuana in connection with work; it applies to the future of legalization as a whole.

Threats to legalization in Colorado

Threats to legalization broadly can be classified in two categories, legal issues and political considerations.

Legal Threats
Right now Colorado is facing a number of legal challenges to the legalization of marijuana. There are three suits in federal court, and one that, will be heard by the US Supreme Court.
There are two suits that have been filed by residents of Colorado trying to block the changes brought on by amendment 64. Both of these suits claim burdens that are the result of the legalization of marijuana in the state. The plaintiffs are charging Governor Hickenlooper with violation of RICO laws by allowing marijuana to be legalized in Colorado, in violation of federal laws

One case claims that the construction of marijuana cultivation facility will destroy the value of private property because there will be an illegal facility built which might interfere with the views in one direction from the property. Another case filed by private citizens claims that the planned opening of a recreational marijuana dispensary in Frisco has already led to a loss of business revenue for a Holiday Inn next to the proposed facility. Both of these cases have a co-plaintiff Safe Streets, a DC based anti-legalization group. In order to be successful the plaintiffs must be able to show that they have suffered real definite harm that will be the hardest part of these suits.
Six Colorado sheriffs filed the third suit in federal court. They are claiming that the legalization of marijuana in the state has left the officers under their control in an untenable situation. Every time that an officer stops a person for possession of marijuana the officer needs to choose between enforcing the laws of the state of Colorado, or the federal laws which consider possession of any amount of marijuana to be a criminal act. If this claim sounds familiar, it is because it is the same as the claims surrounding enforcement of immigration policy. The response to this should be largely the same. Sheriffs are not charged with enforcing federal law, they are officers of the state, and enforce state law regardless of personal feelings.

The suit before the Supreme Court is brought by Nebraska, and Oklahoma. These states are claiming that they are suffering negative effects due to Colorado’s legalization of marijuana. Their claims center on a claimed increase of marijuana related arrests and trials in the areas adjacent to Colorado. The extra cost of these actions is a burden placed on them by Colorado resident’s decision to legalize marijuana for recreational use. The claims center on the Supremacy clause of the constitution, which prevents a state from making a law, which is contrary to federal law. Washington and Oregon have filed briefs on the side of Colorado. The Supreme Court has not decided if it will hear the case, but if it does, it will likely be in the next term. If the Court decides against Colorado, it will only effect the decriminalization of recreational marijuana, not the medical marijuana industry. Even if the Supreme Court says that legalization in Colorado does not violate the rights of neighboring states, there are political threats to legalization.

Political threats
Colorado and Washington are allowed to have legalized marijuana because the current administration has directed the Department of Justice to not enforce federal laws prohibiting the use, sale, or growing of marijuana. The next president may very well decide that they disagree with this policy, and return to enforcement of federal drug law. Even though this may not change Colorado’s constitution, it would effectively end legalization. As decriminalization efforts take hold in more states, and issues surrounding regulation are ironed out by Colorado and the other states that are on the forefront of this issue, it becomes increasingly likely that the federal government will continue to allow states to decide on their own how to handle marijuana. However, as long as marijuana is considered a controlled substance by the federal government, it is not truly legal.

This partial legality makes it difficult to do business in the industries of medical and recreational marijuana. Most business issues arise from the conflict with federal rules. Currently all marijuana cultivation, testing and retail facilities must be located in the state where the product is sold. This means that there are limited possibilities to leverage economies of scale. Interstate transportation of marijuana is illegal since the federal government controls the rules of interstate commerce.

It is also impossible for a business involved in the marijuana trade to deal with a bank. Banks are subject to federal regulations, which prevent them from taking deposits from businesses that are involved in the drug trade. This regulation prevents money laundering, and prevents illicit funds from entering into the legitimate economy, and in the case of banks in Colorado and Washington, it prevents legitimate marijuana related funds from entering into the banking system. This means that marijuana businesses have to be cash only operations, no credit cards, no debit cards, and no checks ( though, I am not sure how many people use checks anymore.) That much cash is cumbersome, it takes a lot of space, and it seriously raises the risks associated with doing business. Companies that grow, test or sell marijuana have to keep their profits, and savings in cash, which means that they need to spend a lot more money on security. Colorado has been exploring ways to allow marijuana related businesses to use some kind of banking services, but as of this writing there is no concrete solution in place.

So just how legal is marijuana in Colorado? The answer is, it is legal (mostly.) The next few years will clarify the answer to this question, but for now, it is legal at home, or in private, unless you get tested at work (maybe).

This is a blog post, and nothing contained herein constitutes legal advice.




The Colorado Supreme Court has finally ruled on Coats v. Dish Network, 13 SC 394 (Colorado 2015)  Opinion of the Colorado Supreme Court .  The Court found that Dish Network has the right as a company to test for, and terminate employees for using marijuana, since it is still a federally controlled substance.  Because marijuana is a schedule one substance, the law preventing companies from interfering with lawful activities outside of work does not apply.

In the wake of a rash of highly publicized incidents where police action resulted in the death of individuals who were either not a threat, or already subdued; we are seeing equally highly publicized grand jury hearings determining whether to indict the police involved.  To the outrage of many, both inside and out of the local communities, more often than not, these grand juries returned “no true bill” meaning they refused to indict the officers for any wrongdoing.

How is this possible? We all have seen the videos, and in the court of public opinion, they are quite obviously guilty.  How can there be no trial?  We hear all the time “a prosecutor can get a grand jury to indict a ham sandwich” so obviously it must be the prosecutor’s fault, right?

If only it were that easy.  Let us look at what grand juries are first.  Grand juries are made up of a group of normal citizens, much like a regular jury.  Unlike a regular jury, a grand jury meets in secret, without a judge, and in many cases, the defendant is not present.  Grand juries are not there for anything like a trial, they are there to listen to incriminating evidence against the defendant to determine if there is probable cause for prosecution.  The prosecutor is in charge of the hearing, showing only one side of the case, trying to get an indictment.  The whole process is geared toward getting a defendant on trial, and in a typical grand jury scenario, only incriminating evidence is presented.  So why do so many grand juries not indict police?

The answer can be found by looking at the role of the prosecutor.  Normally a prosecutor is trying to get an indictment of a defendant brought to them by the police.  There is an inherent conflict when that defendant is the police.  , they work closely with the police force.  After all, how else are they going to handle investigations, and get defendants to indict?  If a prosecutor is perceived as going too aggressively after an indictment of a police officer that could poison the relationship and make the prosecutor’s life very difficult.  That is why in cases like Ferguson the prosecutor showed all of the evidence not merely the incriminating evidence (as would typically be the case in a grand jury hearing).  They can claim impartiality, while their inherent bias (in many cases likely a subconscious bias) makes it easier for the grand jury to return no true bill.

As long as there is this inherent conflict of interest in the system, we cannot expect a grand jury to indict the police as easily as the proverbial ham sandwich.

Thankfully, all of the publicity from these incidents has begun a movement to reform the system.  Currently, there are at least three proposals at the state and national level on how to handle the special task of indicting police officers more effectively.  The mere fact that it is recognized as a special task shows progress.

The Chief Judge of the State of New York, Jonathan Lippman in his State of the Judiciary speech proposed that in cases of homicide or felony assault involving police-civilian encounters a judge would preside over the grand jury hearing.  This would still have the prosecutor involved in the hearing, but the judge would be able to ask questions of the witnesses, and make rulings.  This helps to guard against the inherent biases of the prosecutor. The judge would then have the option to release the record of the grand jury deliberations in the event of a return of no true bill.  Right now grand jury records are sealed to protect the party who was not indicted.

In California, State Senator Holly Mitchell (D-Los Angeles) has proposed legislation, which would prohibit the use of grand juries in officer-involved shootings resulting in death of the suspect.  The elimination of grand juries in this legislation is to combat the secrecy of the process.  Presumably, as a result, these cases would result in a direct indictment and go directly to trial.

On a national level, there has also been a response to these events.  Rep. Hank Johnson, D-GA proposed legislation in December, which would keep much of the current grand jury structure in place.  However, in an effort to combat the inherent bias of the current system Rep Johnson has proposed that a special prosecutor be in charge of the grand jury in cases involving police officer misconduct.

These proposals are each a potential step in the right direction.  I hope that we can build sufficient momentum to fix the system.  I do not pretend to know the best means to do so, but it is clear change is necessary.  As surely, as we need to make sure that the criminal justice system is not the primary means of mental health care in the country. (This will be the topic of an upcoming post.)