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Incorporating the Grand Jury Clause from the Bill of Rights to State Prosecutions

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by: Ryan Scott • November 29, 2018 • no comments

Yesterday, in a case called Timbs v. Indiana, the United States Supreme Court heard oral argument on whether the Excessive Fines Clause of the 8th Amendment applied to the states.

When the Bill of Rights -- the first 10 amendments to the US Constitution -- was first adopted, it did not apply to the states. However, the passage of the Due Process Clause of the 14th Amendment -- which does apply in state court -- was widely interpreted as incorporating some of the first 10 amendments, that is, limiting state power in state criminal prosecutions, primarily. But which federal constitutional rights protect a defendant in state court and which do not? Early on, it was hit or miss, and in 1884, in a case called Hurtado v. California, the US Supreme Court appeared to hold that the indictment clause in the Fifth Amendment does not apply to state prosecutions. More on this later.

Over time, the Supreme Court increasingly held that the Due Process Clause of the 14th Amendmendment incorporated more and more of the Bill of Rights. And the trend has been to reverse earlier opinions that said otherwise. For example, it wasn't until 2010 that the US Supreme Court held that the 2nd Amendment (the right to bear arms) was incorporated by the Due Process Clause, reversing very old precedent. Thus, in state court, a defendant could cite the federal protections of the 2nd Amendment when challenging a state statute.

In the Timbs case, the question at issue was whether the Due Process Clause incorporated the provision in the 8th Amendment that prohibits "Excessive Fines." Here's what SCOTUSblog had to say about how the argument went:

Although the only question before the justices in Timbs’ case was whether the Eighth Amendment’s excessive fines clause applies to the states, the justices spent very little time on that question, because there appeared to be broad agreement on the court that it does. Justice Neil Gorsuch seemed to summarize the feeling on the bench in a question for Thomas Fisher, the Indiana solicitor general who argued on behalf of the state. Gorsuch asked, almost rhetorically: The excessive fines clause “applies to the states, right?” Gorsuch observed that most of the Supreme Court’s cases interpreting the Bill of Rights to apply to the states “took place in like the 1940s.” Somewhat incredulously, Gorsuch continued, “here we are in 2018 still litigating incorporation of the Bill of Rights. Really? Come on.

[Emphasis added.]

Why does this matter in Oregon? It matters for two reasons. Two provisions from the Bill of Rights that have arguably not yet been incorporated are the right to a unanimous jury (which is not expressly found in the Bill of Rights) and, as mentioned above, the right to a Grand Jury indictment.

I'm not going to talk about the first. This post is about whether the Grand Jury Clause applies to Oregon. But before we get to that, your first question should be, "who cares?"

That should be your first question because Oregon's Constitution has its own Grand Jury clause, Article I, section V. It states that felony prosecutions require an indictment by Grand Jury, a waiver of indictment or a preliminary hearing. If the Oregon Constitution guarantees at least a preliminary hearing, why does it matter that the federal constitution does not?

But the reason it matters is this: the US Constitution recognizes as elements of crimes -- often referred to as Blakely elements -- that the state constitution does not. These elements enhance or aggravate a crime, and they can significantly lengthen the defendant's period of incarceration. Because they are not recognized as elements of a greater offense under the Oregon Constitution (with some exceptions), they do not need to be submitted to a Grand Jury under the Oregon Conbstitution. In other words, the prosecutor can threaten to double the defendant's potential sentence by dashing off -- without any oversight by a Grand Jury or a magistrate -- a number of often ill-thought-out enhancement factors up to 60 days obtaining the indictment.

But because these are elements of aggravated offenses under the US Constitution, if the Grand Jury clause was incorporated as part of the 14th Amendment, and therefore applicable to the state's, the current statutory notice scheme for enhancement factors would be unconstitutional. It would require some form of oversight, and as a result, we would see far fewer enhancements and thus shorter prison sentences.

Put another way, if Hurtado v. California were overturned, then a large number of defendants would benefit. For one, it would decrease the prosecutor's leverage pre-trial. More than anything else -- even more than unanimous juries -- it would have a significant impact on the number of people in prison by generally reducing the length of prison sentences.

(Yes, the prosecutor could still get upward departure factors past the GJ or past a magistrate, but as with anything else, the harder you make it for someone to get a widget, the fewer widgets they will get.)

Since Justice Gorsuch appears to believe that partial incorporation doesn't pass the laugh test, maybe we should be thinking about challenging the use of enhancement facts that haven't been submitted to the Grand Jury and give him the opportunity to apply the last part of the 5th Amendment to Oregon criminal prosecutions.

But I mentioned above that Hurtado "appeared" to hold that the GJ Clause doesn't apply to state prosecutions. Why the hedge?

While it's true that Hurtado found that it does not violate Due Process when the state doesn't submit a charge to the Grand Jury, it does appear to say that Due Process would still require a preliminary hearing. The Hurtado court wrote, after a discussion of the importance and history of Grand Jury indictments:

Tried by these principles, we are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information, after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law.

In other words, a preliminary hearing in state court prosecution satisfies Due Process. If this is correct, enhancement factors that aren't subject to preliminary hearings, even if Hurtado isn't overturned, violate the US Constitution.

This concept -- that maybe the right applies but not the full scope of that right -- was endorsed -- at least generally -- by Justice Kagan at the same oral argument mentioned above. Again, SCOTUSblog:

At one point during Fisher’s time at the lectern, Kagan noted that, when the Supreme Court decides that a provision of the Bill of Rights applies to the states, “there are always going to be questions about the scope of the right” that applies. But when the justices “have decided whether to flip the switch” and decide whether a right applies, it hasn’t decided those questions, instead leaving them “for another day,” she explained.

That sounds like exactly what Hurtado did. Maybe you don't get an indictment in state court but the protection that an indictment is supposed to provide is satisfied by a preliminary hearing.