Abating the Condition

From a June 29, 1916 article in the Louisville newspaper the Courier-Journal:

POLICE ARE INVESTIGATING EXTENT OF MISCEGENATION
Chief Lindsey Determines To Spare No Effort To Abate Practice Here.
Police Corp. John Sullivan has been detailed by the Chief of Police Lindsey to investigate the extent of miscegenation in Louisville. Yesterday afternoon two cases were brought to the attention of the police, which reflected a condition that Chief of Police Lindsey declared he was going to spare no effort to abate.
Complaints coming to Desk Sergt. Krakel that a white woman was in the house of a negro at 1204 Carpet alley caused Lieut. Moriarity and Corp. Sullivan to go to that address yesterday afternoon. There they found the room of Harry Jenkins, colored, 34 years old. In the room, they allege, they found a woman who these officers, Chief Lindsey, Jailer Foster and the jail matrons say is white, but who insists that she is a negro. Jenkins and the woman, who gave her name as Alice Shumaker, were arrested on charges of disorderly conduct.
At the jail the woman was slated as white, but beside her name was written, "claims she is colored." The woman is 30 years old and good looking. She said she had been married and lived in Shippingport, but was separated from her husband. A blood test will be made at the jail to determine whether or not she is a negro.

PDF available here.

The Sudden (and Curious) Allure of the Traditional Grand Jury

In the wake of the announcement that a Missouri grand jury had declined to indict police officer Darren Wilson for the brutal killing of teenager Michael Brown, many have criticized the actions of the local prosecutor and the procedure the grand jury followed. And for good reason.

As the saying goes, a grand jury would indict a ham sandwich if a prosecutor wanted them to. Grand juries hand down indictments almost every time they're given the chance. After all, their primary role is just to determine if there is probable cause to suspect a crime has been committed by the accused. They are not required to conclude ultimate guilt. They're just a way station on the route to a public trial.

Making the rounds is a passage from a 1992 Supreme Court case which clearly states the traditional role of the grand jury:

It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

United States v. Williams, 504 U.S. 36, 51-52 (1992).

Indeed, the procedure followed by the grand jury in case of Darren Wilson is highly unusual, if for no other reason than the inclusion of extensive testimony by the accused himself. Normally only the prosecutor or a couple of witnesses in favor of indictment will be presented. Government attorneys are not even obligated to produce evidence suggesting the suspect's innocence if they possess it (like they would be in an actual trial).

If you think the Missouri grand jury got it wrong and should have indicted Wilson for the murder of Michael Brown, United States v. Williams gives you a lot of rhetorical ammo. But the full context of the case and the scope of its holding goes beyond just one incident of police homicide. It applies to all criminal defendants in all criminal cases where a grand jury is called to consider an indictment. A more extensive discussion of Williams is useful.

The Underlying Case

In 1988, a federal grand jury indicted investor John Williams for making numerous false statements overstating the value of assets owned by four Oklahoma banks.

After his arraignment, Williams moved the trial court to disclose all exculpatory evidence from the grand jury transcript. Exculpatory evidence is evidence which suggests a suspect is not guilty of the accused crime. The court granted Williams' motion. After reviewing the grand jury record, he moved for the court to dismiss his indictment, arguing that the prosecutor was obligated to present "substantial exculpatory evidence" to the jury but failed to do so.

The trial court eventually dismissed the indictment. The government prosecutors appealed, but the Tenth Circuit Court of Appeals affirmed the lower court's ruling, holding that the government had "substantially influenced" the grand jury to indict or otherwise raised doubt that the grand jury's decision was "free from such substantial influence." United States v. Williams, 899 F.2d 898, 903 (10th Cir. 1990).

The government appealed to the Supreme Court, which accepted the case.

The Supreme Court Ruling

The issue considered by the Court was "whether a district court may dismiss an otherwise valid indictment because the Government failed to disclose to the grand jury substantial exculpatory evidence in its possession." Williams, 504 U.S. at 37.

The Williams opinion, written by Justice Antonin Scalia and joined by four of his colleagues, extensively explores the history of grand jury procedure in the United States. The grand jury is not actually a part of the judicial branch of government - "it belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people." Id. at 47.

This separation from the normal judicial apparatus defines the grand jury's unique function:

Unlike [a] court, whose jurisdiction is predicated upon a specific case or controversy, the grand jury can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not. It need not identify the offender it suspects, or even the precise nature of the offense it is investigating. The grand jury requires no authorization from its constituting court to initiate an investigation, nor does the prosecutor require leave of court to seek a grand jury indictment. And in its day-to-day functioning, the grand jury generally operates without the interference of a presiding judge. It swears in its own witnesses, and deliberates in total secrecy.

Id. at 48 (internal quotations and citations omitted).

As the Court clearly explains, a grand jury does not operate under the rules to which trial courts are bound. For that reason, it also provides far fewer protections to criminal defendants, who, in every other aspect of the criminal justice system, receive significant due process protections under the Fifth, Sixth, and Fourteenth Amendments to the Constitution.

For example, in a criminal trial, the government may not use against a defendant evidence that was seized in violation of the Fourth Amendment. This is called the "exclusionary rule." But that rule doesn't apply to a grand jury. Similarly, grand juries may also consider hearsay testimony.

On the other hand, while illegally obtained evidence and second-hand testimony may be admitted, the grand jury is under no obligation to consider the suspect's side of the story. The reason is because "the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge. That has always been so; and to make the assessment it has always been thought sufficient to hear only the prosecutor's side." Id. at 51 (internal citation omitted).

The rules governing grand juries are so lax that indictments cannot be challenged after they are handed down on the basis that the evidence considered by the grand jury was insufficient or incompetent. "[T]he mere fact that evidence itself is unreliable is not sufficient to require a dismissal of the indictment, and . . .a challenge to the reliability or competence of the evidence presented to the grand jury will not be heard." Id. at 54 (internal quotations omitted).

Ultimately, the Court in Williams ruled that prosecutors are not obligated to present exculpatory evidence during the grand jury procedure. They may present only one side of the story - their belief that the suspect has committed a crime - and the grand jury may decide to indict in reliance upon that alone.

The Implications of the Grand Jury Tradition

It should dawn on you by now that the traditional grand jury proceeding is extraordinarily biased in favor of the government. Suspects facing a motivated prosecutor rarely have any chance to avoid indictment. And the stats prove it - indictments are handed down so often that grand juries are effectively just rubber stamps for prosecutor prerogatives.

But what happens if a prosecutor seeks an indictment for nefarious reasons? Perhaps a prosecutor has a grudge, or engages in extensive misconduct. Even if an unfairly accused suspect is ultimately exonerated at trial, they still must endure numerous negative effects of a criminal accusation: lost time, expensive legal fees, embarrassment, injury to reputation, and even jail time if the charges are severe enough for a judge to deny bail. Innocent suspects may even be convicted and endure long prison sentences or worse.

There are few safeguards, at the grand jury stage of the proceedings, to prevent that kind of harm to innocent people. That's why Justice Scalia's history lesson in United States v. Williams must be approached with some apprehension. It is true that Darren Wilson received special treatment from a grand jury of a sort almost never extended to anyone else facing potential indictment. But that kind of special treatment could easily protect legitimately innocent people from being indicted when they otherwise would be under the prevailing tradition of the grand jury system.

Which would we prefer? Even if you believe Wilson should be charged with a crime for killing Michael Brown, is a lax grand jury system highly vulnerable to prosecutorial misconduct and abuse really preferable to something more thorough and protective of constitutional rights?

Maybe only the end result matters when it comes to public opinion. How many people would happily quote Justice Scalia if an obviously innocent person had been indicted instead? It's a question worth considering, because that's a far more common outcome than the deference given to Darren Wilson.

Original Meanings

From the Sixth Circuit Court of Appeals decision upholding state same-sex marriage bans in Kentucky, Tennessee, Ohio, and Michigan, entered November 6, 2014:

Yes, the Fourteenth Amendment is old; the people ratified it in 1868. And yes, it is generally worded: it says, "[N]or shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Nobody in this case, however, argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.
Tradition reinforces the point. Only months ago, the Supreme Court confirmed the significance of long-accepted usage in constitutional interpretation...Applied here, this approach permits today's marriage laws to stand until the democratic processes say they should stand no more. From the founding of the Republic to 2003, every State defined marriage as a relationship between a man and a woman, meaning that the Fourteenth Amendment permits, though it does not require, States to define marriage that way.

The above passage appears in a subsection titled "Original meaning," discussing the Court's view of what "marriage" means traditionally in the United States. Other cases have similarly weighed on the "original meanings" of both the Fourteenth Amendment and the institution of civil marriage.

State v. Jackson, 80 Mo. 175, 176, 178-179 (Mo. 1883):

It may interfere with the taste of negroes who want to marry whites, or whites who wish to intermarry with negroes, but the State has the same right to regulate marriages in this respect that it has to forbid the intermarriage of cousins and other blood relations. If the State desires to preserve the purity of the African blood by prohibiting intermarriages between whites and blacks, we know of no power on earth to prevent such legislation. It is a matter of purely domestic concern. The 14th amendment to the Constitution of the United States, to which, by some, magical power is ascribed, has no such scope as seems to have been accorded to it by the circuit court.
...
Marriage acts similar to the one under consideration were in force in most of the slave-holding states prior to the adoption of the 14th amendment, and their validity was never questioned, no one supposing that there was, prior to that amendment, any provision of the federal constitution with which they were in conflict, and it is only by ascribing to that amendment a force and scope expressly denied it by the Supreme Court of the United States that any ground exists for questioning their validity now. Nor is it one of the natural rights of man to marry whom he may choose. . .The right to regulate marriage, the age at which persons may enter into that relation, the manner in which the rites may be celebrated, and the persons between whom it may be contracted, has been assumed and exercised by every civilized and Christian nation; and the condition of a community, moral, mental and physical, which would tolerate indiscriminate intermarriage for several generations, would demonstrate the wisdom of laws which regulate marriage and forbid the intermarriage of those nearly related in blood. It is stated as a well authenticated fact that if the issue of a black man and a white woman, and a white man and a black woman, intermarry, they cannot possibly have any progeny, and such a fact sufficiently justifies those laws which forbid the intermarriage of blacks and whites, laying out of view other sufficient grounds for such enactments.

Plessy v. Ferguson, 163 U.S. 537, 544, 545, 550 (1896):

The object of the [Fourteenth] [A]mendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced.
...
Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the State.
...
So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether [a state law] is a reasonable regulation, and, with respect to this, there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.

Daviess County Board of Education, et al. v. Johnson, 179 Ky. 34, 39 (Ky Ct. App. 1918):

Under our Bill of Rights and the Fourteenth Amendment to the Federal Constitution, it is not necessary that the rights or privileges of the two races shall be identical, but only that they shall be equal.

Harris v. City of Louisville, Buchanan v. Warley, 165 Ky. 559, 570 (Ky. 1915):

The enforced separation of the races alone is not a discrimination or denial of the constitutional guaranty; and if such separation should result in the members of the colored race being restricted to residence in the less desirable portions of the city, they may render those portions more desirable through their own efforts, as the white race has done. Economic equality is not created by statutory declaration nor guaranteed by the Fourteenth Amendment.

Stevens v. United States, 146 F.2d 120, 123 (10th Cir. 1944):

Marriage is a consentient covenant. It is a contract in the sense that it is entered into by agreement of the parties. But it is more than a civil contract between them, subject to their will and pleasure in respect of effects, continuance, or dissolution. It is a domestic relation having to do with the morals and civilization of a people. It is an essential institution in every well organized society. It affects in a vital manner public welfare, and its control and regulation is a matter of domestic concern within each state. A state has power to prescribe by law the age at which persons may enter into marriage, the procedure essential to constitute a valid marriage, the duties and obligations which it creates, and its effects upon the property rights of both parties. And within the range of permissible adoption of policies deemed to be promotive of the welfare of society as well as the individual members thereof, a state is empowered to forbid marriages between persons of African descent and persons of other races or descents. Such a statute does not contravene the Fourteenth Amendment.

Naim v. Naim, 197 Va. 80, 86, 89-90 (Va. 1955):

From the Slaughter-House Cases, to Brown v. Board of Education, and Bolling v. Sharpe, the Supreme Court has made no decision at variance with the holding in the Stevens case. It has on numerous occasions invoked the provisions of the Fourteenth Amendment to invalidate State legislation and decision with respect to political and civil rights, but it has not denied to the States the right to deal with their social and domestic problems and to legislate in regard to the marriage relation. On the contrary, it has been at pains to exclude that relation from the effects of its holdings.
...
We are unable to read in the Fourteenth Amendment to the Constitution, or in any other provision of that great document, any words or any intendment which prohibit the State from enacting legislation to preserve the racial integrity of its citizens, or which denies the power of the State to regulate the marriage relation so that it shall not have a mongrel breed of citizens. We find there no requirement that the State shall not legislate to prevent the obliteration of racial pride, but must permit the corruption of blood even though it weaken or destroy the quality of its citizenship. Both sacred and secular history teach that nations and races have better advanced in human progress when they cultivated their own distinctive characteristics and culture and developed their own peculiar genius.
Regulation of the marriage relation is, we think, distinctly one of the rights guaranteed to the States and safeguarded by that bastion of States' rights, somewhat battered perhaps but still a sturdy fortress in our fundamental law, the tenth section of the Bill of Rights, which declares: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

The Unquestioned Power of the State

While researching Kentucky case law for an article I'm writing, I stumbled upon this legal gem from yesteryear, the sinister luster of which has not yet been totally lost. Similar arguments are still made by the various states - including Kentucky - opposed to same-sex marriage. Overt racism has been abandoned, but the appeals to state political discretion and the importance of procreation remain:

The question is, is it a fair exercise of the police power to prohibit the teaching of the white and negro races together? Is it a fair exercise of the power to restrain the two races from voluntarily associating together in a private school, to acquire a scholastic education? The mingling of the blood of the white and negro races by interbreeding is deemed by the political department of our State government as being hurtful to the welfare of society. Marriage by members of the one race with those of the other is prohibited by statute. Sections 2097, 2098, 2111, 2114, Ky. St. 1903. It is admitted freely in argument that the subject of marriage is one of the very first importance to society; that it may be regulated by law even as among members of the same race. Inbreeding is known to lower the mental and physical vigor of the offspring. So incestuous marriages are prohibited. Others not incestuous, but involving the probable effect upon the vitality of the offspring, are prohibited also, as marriages by idiots. Still other inhibitions, such as age, and so forth, are imposed, all of which look to the well-being of the future generations. No one questions the validity of such statutes, enacted as they confessedly are, under the police power of the State. Upon the same considerations this same power has been exercised to prohibit the intermarriage of the two races. The result of such marriage would be to destroy the purity of blood and identity of each. It would detract from whatever characteristic force pertained to either.

Berea College v. Commonwealth, 123 Ky. 209, 218-219 (Ky. 1906).

This case, which would now be considered a highly conservative opinion (both in its racism and in its reliance upon federalist principles), includes this passage, which seems not at all consistent with our contemporary conceptions of certain conservative ideologies:

Individual liberty of action or right must give away to the greater right of the collective people in the assertion of a well defined policy, designed and intended for the general welfare.

Id. at 211.

The well-defined policy designed and intended for the general welfare at issue, of course, was racial segregation.

One more heinous quote for the road:

The separation of the white and black races upon the surface of the globe is a fact equally apparent. Why this is so, it is not necessary to speculate; but the fact of a distribution of men by race and color is as visible in the providential arrangement of the earth as that of heat and cold. The natural separation of the races is therefore an undeniable fact, and all social organizations which lead to their amalgamation are repugnant to the law of nature.

Id. at 225.