A Pyrrhic Victory: Why California's Grand Jury Law (Still) Won't Hold Officers Liable for Murder
37 Pages Posted: 5 Apr 2017
Date Written: December 15, 2015
Following a string of controversial police killings, California's S.B. 227 sought to remove what many perceived was a ploy for prosecutors to deflect public scrutiny while deciding not to charge officers with the deaths: the grand jury. The new law forbids prosecutor offices from investigating these crimes before a grand jury, and, instead, requires putting these cases to a preliminary hearing if they are filed. While S.B. 227 eliminates one of several avenues a prosecutor may use to establish probable cause in a criminal case (the grand jury’s screening process), it cannot and will not force prosecutors to charge officers with murder. By pursuing a procedural remedy to the problems presented in Ferguson, lawmakers may have “[thrown] the baby out with the bathwater,” to quote an elected district attorney in California, by removing an important investigatory tool from the prosecutor’s arsenal and eliminating the only a meaningful check on prosecutorial discretion. Furthermore, the legislation fails to reach the goals of accountability and transparency heralded by the author and proponents, but may serve to restore trust between officers and the communities they serve.
This Article explains the role of the grand jury in general, and specifically its use in highly-politicized cases. Next, the Article evaluates S.B. 227, discussing the background of its passage, the policy goals of its author, and detailing how the legislation works in practice. The Article concludes that by taking a procedural approach to the issues presented in Ferguson and Staten Island, the legislation hampers some of the key goals of the law's underlying purpose and perhaps causes lawmakers to ignore alternative approaches that might produce a better outcome.
Keywords: grand jury, S.B. 227, police shootings, use of force
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