How have grand juries and contempt sanctions been used or abused in the past?

Date: January 1, 0001

The tradition of using grand juries to jail political dissidents and activists is long. They were used to indict abolitionists, but not people capturing and re-enslaving people seeking freedom from bondage. They were used to indict re-constructionists, while actively protecting lynch mobs. Additionally, in the Antebellum South, grand juries routinely indicted anti-slavery activists for sedition, while those in the North sometimes refused — but charges would re-presented to new grand juries until they stuck.

In the 19th and early 20th century, grand juries were used to disrupt labor movements and antiwar movements. In the Nixon era, over one thousand political activists were subpoenaed to more than one hundred grand juries investigating lawful anti-war, women’s rights, and black activist movements.

In 2012, the FBI issued 14 grand jury subpoenas to activists after the 2008 Republican National Convention in Minneapolis, MN, and proceeded to question them without ever issuing any indictments. That same year, a grand jury ostensibly investigating property damage at a demonstration asked activist Katherine Olejnik more than 50 questions about people’s political beliefs and their relationships. The government did not question her about criminal conduct as they knew she had no knowledge of the crimes they were supposed to be investigating.

In 2013, 23 year old Gerald Koch was summoned before a grand jury on the purported basis that he might have overheard a discussion in 2009 about some high profile property damage that had occurred in 2008. This culminated in his eight-month confinement on civil contempt, and cast a palpable chill over the political activities of New York City activists.

In 2017, anti-pipeline activist Steve Martinez was subpoenaed to appear before a grand jury in North Dakota to testify about an injury law enforcement had caused to a young activist. The prosecution asked no questions at all about unlawful conduct or the relevant injury.

During the McCarthy era, people were publicly interrogated about their beliefs and associations. The public was eventually outraged, and the McCarthy hearings are widely seen as a disgraceful episode of modern history. Now however, these kinds of interrogations have returned, and happen routinely, but secretly, under the modern grand jury system.

The ability of grand juries to be abused or used for political ends is entrenched and perpetuated by the fact that jeopardy doesn’t attach with a grand jury, so prosecutors can repeatedly bring the same charges, despite laws that require prosecutors to show new evidence or that it is in the public interest to extend or reconvene a grand jury.

Another, more sinister thing about grand juries is that they don’t indict law enforcement. For example, in Dallas over a stretch of several years, more than 80 police shootings came before grand juries. Only one returned an indictment. Grand juries have protected police officers since the slave patrols.