The DISPARITY between the Number of Grand Jury Sessions Convened and the Number of Defendants Indicted

By Walker, Patrick | Judicature, January/February 2004 | Go to article overview

The DISPARITY between the Number of Grand Jury Sessions Convened and the Number of Defendants Indicted


Walker, Patrick, Judicature


The types of crimes for which federal prosecutors seek indictments and the provisions of the Speedy Trial Act of 1974, not the number of grand juries convened, are the primary determinants of how many individuals will be indicted.

A major task of the Administrative Office of the U.S. Courts (AO) is forecasting the future caseloads of the federal courts. Congress uses these numbers to create an annual judicial budget and to periodically increase the number of judgeships to meet what historically has been an expanding workload.

During the late 1990s, AO statisticians, engaged in formulating estimates for the number of grand jury sessions convened, noticed that despite an ever-increasing criminal caseload the number of grand jury sessions convened was declining. In order to enhance the forecast accuracy for grand jury sessions, and thus the precision of the total budget request for the federal judiciary, research was conducted on the cause of this apparent anomaly.

An initial finding revealed that the trend observed in the late 1990s has had a precedent.1 In fact, over the past quarter century the number of federal grand jury sessions convened each year has been a surprisingly poor predictor of the number of defendants indicted each year.2 Not only has the number of sessions not kept pace with the rate of indictments, but from 1975 to 1980 and from 1995 to 2000 the two respective trends diverged. This article argues that the lack of correlation between sessions convened and defendants indicted has resulted from changes in the types of cases prosecuted in the U.S. district courts, the Speedy Trial Act of 1974, and policy decisions by the U.S. Department of Justice (DOJ).

The types of crimes prosecuted are important because increases in comparatively less complex prosecutions, such as prosecutions of individuals charged with illegal reentry into the United States, will likely result in a higher rate of indictments per grand jury session. Growth in these types of filings can enable grand juries to indict significantly more defendants without requiring additional grand jury sessions. Conversely, increases in prosecutions involving complex cases, which often have multiple defendants, generally have the opposite effect, requiring additional grand jury sessions to secure an equal number of indictments.

The Speedy Trial Act requires that any person charged with a felony must be indicted within 30 days of the arrest date, and compliance with that deadline has affected the number of indictments per session throughout the 25-year period from 1975 through 2000 by causing more grand jury sessions to be convened, even if those sessions have been brief and have resulted in a smaller number of defendants indicted.

Along with the Speedy Trial Act and changes in the composition of the criminal caseload, DOJ administrative decisions unrelated to the prosecution of specific crimes also have affected the federal grand jury system. The clearest example of such a policy decision occurred in the mid-1980s, when federal prosecutors sought to limit the number of grand juries impaneled each year. Implementation of the policy caused the average number of indictments per grand jury session to increase.3

As a result of these factors, the relationship between sessions convened and defendants indicted has changed several times since 1975. These changes can be categorized into the following four distinct periods: 1975 through 1980, when the average number of defendants indicted per grand jury session fell sharply; 1981 through 1990, when the number of indictments per session increased consistently from year to year; 1991 through 1994, when indictments per session remained essentially unchanged; and 1995 through 2000, when indictments per session rose dramatically (See Figure 1).

Grand jury history

The origins of the grand jury system can be traced back to twelfth-century England.4 In 1166, King Henry II issued the Assize of Clarendon, which established a system in which local informers would tell the king which persons were suspected of certain serious crimes.

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