Since 1884, the States have claimed the right to indict a person for a capital crime without a grand jury, based on Hurtado v. California, a case in which the U. S. Supreme Court decided that the 14th Amendment’s “due process” requirement did not prohibit States from establishing an indictment process that bypasses the grand jury.

This is absurd. It’s time someone should challenge the circumvention of grand juries based on the Fifth Amendment. Why? Because state prosecutors are often vindictive and almost always politically motivated. In some cases, prosecutors have sent their political enemies away for life. In many cases, prosecutors have sent people away for life or even to Death Row in order to feed the hungry maw of the media—to ensure their reelection or to gain a judgeship.

The Fifth Amendment

• “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; .  . . .”

“A Capital, or Otherwise Infamous Crime”

In 1789 what was meant by “a capital crime”? Certainly it meant a crime that was punishable by death. But it meant more than that, too.

According to the Oxford English Dictionary, by the time the Bill of Rights was written, “capital” had acquired several other meanings as well. From the mid-1500s, “capital” was an adjective referring to anything involving the loss of the head or life, punishable by death, fatal, involving the loss of civil rights, and most serious (as early as 1538).

So, in the Fifth Amendment “capital” refers to more than crimes punishable by death: it refers to the most  serious crimes, including those which involve life imprisonment (that is, the punishment involving loss of civil rights).

The Bill of Rights clearly intended to require a Grand Jury indictment for life imprisonment, as well as the death penalty.

Now here’s where the problem arises in the current so-called justice system: several crimes are punishable by life imprisonment, including many rather insignificant, petty, non-infamous crimes.

In some states not only first-degree murder but also second-degree murder are punishable by life imprisonment. Many crimes involving multiple, different counts are punishable by hundreds of years in prison, which of course amounts to life imprisonment. In many states with “three strikes and you’re out” laws, even minor crimes such as possession of drugs can result in life imprisonment.

Yet most such crimes do not go before a Grand Jury, because the States routinely rely on Hurtado v. California (1884), as well as the Fifth Amendment, to mean that only crimes involving capital punishment are ever subject to a Grand Jury indictment. Instead, local prosecutors press the charges, often over-charging less-serious crimes in order to maximize prison sentences.

Given that these steep penalties for a wide variety of crimes are currently thought to help keep down the crime rate, I certainly do not advocate greater leniency. However, I do think the justice system would deliver more justice and less punishment of the innocent if Grand Juries were convened more often to hand down indictments for crimes that could result in life in prison, not only capital punishment.

It is truly better for us all that a few guilty people go free than that a single innocent person be imprisoned for life, or worse.

There but by the grace of God, go us all. If you’re skeptical that this is true, I will provide you with some examples in Part III.