Martha Minow, dean of Harvard law school, and Robert Post, dean of Yale law school, have written an op-ed in the Boston Globe about the need to “regain trust in the legal system” following the grand jury “no-bills” in the Michael Brown and Eric Garner killings. It’s a shockingly bad piece, devoid of both evidence and argument.
The thesis of the op-ed is that in the criminal justice system, at least in the context of dealing with minority group members, “existing procedures have fallen short.” Fallen short of what? Perfection? Some standard neither articulated nor defended by the deans? We aren’t told.
All that Minow and Post show is that the system (as manifested by the outcome in two cases) fails to meet the expectations of “many of our students.” These students “are struggling to reconcile their ideals of justice with what they perceive as manifest injustices in the criminal law system.”
This may be disconcerting to the two deans, but it’s no basis for changing the criminal justice system. Yet, armed with nothing more than their students perceptions and the assertion that the system “undeniably [has] fallen short,” Minow and Post propose major changes to the criminal justice system that appear designed to circumvent grand juries.
Minow and Post advise us to learn from the “truth and reconciliation” commissions employed “abroad.” No surprise there. But again, the deans fail to make the case that our criminal justice needs an infusion of ideas from foreign countries.
Minow and Post also want our police to learn from the marines. They write, “US Marines are taught, ‘Never point a weapon at anything you do not intend to shoot.’ Our police should have an equally serious understanding of the gravity that must accompany the use of lethal force.”
But as my friend Jim Scanlan says, marines surely are also taught this proviso: “except when you are maintaining order, in which case you will often want to point guns at people hoping shooting will then be unnecessary.” If marines aren’t taught this, then they can learn from the police.
In their concluding paragraph, Minow and Post intone, “let us remember that the real grand jury is all of us.”
No, in the context of a criminal proceeding “all of us” is the mob. The grand jury provides protection from the mob.
The occasional mistake notwithstanding, long may grand juries continue to play this role.