February 10, 2016 Practice Points

CA Grand Jury Reform Law Highlights Budding, National Trend

By Handel Destinvil

On January 1, 2016, with the enactment of Senate Bill 227 (SB 227), California became the first state to explicitly prohibit the use of grand juries in cases where fatalities occur in police-involved shootings or as a consequence of an alleged excessive use of force by police.

The bill, first introduced by Democratic State Senator Holly Mitchell of Los Angeles on February 13, 2015, passed through both houses of the California Legislature and was signed into law by California Governor Jerry Brown on August 11, 2015.

The new California law is unique as a December 2015 analysis of deadly police incidents by the Guardian found that in 23 states, "indictments by grand jury are required for criminal charges in all serious felony cases such as murder. In 25 others, they are optional and prosecutors may proceed with charges themselves." The two remaining states—Connecticut and Pennsylvania—have abolished the use of grand juries to return indictments in all cases, which differs from California, where the new law maintains the grand jury system but creates a special exception for deadly police incidents.

The bill was "opposed by law enforcement groups, including the California Assn. of District Attorneys, which argued the grand jury system was a useful prosecutorial tool."

Commenting on her reasoning for introducing SB 227, State Senator Mitchell stated, "[t]he use of the criminal grand jury process, and the refusal to indict as occurred in Ferguson and other communities of color, has fostered an atmosphere of suspicion that threatens to compromise our justice system."

The reasoning of State Senator Mitchell echoed that of President Obama's Task Force on 21st Century Policing. In May 2015, the task force recommended "the use of external and independent prosecutors in cases of police use of force resulting in death, officer-involved shootings resulting in injury or death, or in-custody deaths." The task force explained that such reforms "will demonstrate the transparency to the public that can lead to mutual trust between community and law enforcement." The task force, created in the wake of a series of controversial deaths and protests in the preceding 16 months, sought to "help law enforcement agencies and communities strengthen trust and collaboration, while ushering the nation into the next phase of community-focused policing."

Similar concerns in other jurisdictions have led dozens of state legislatures to discuss reforms within their own systems of investigating police-involved fatalities. However, such concerns have resulted in minimal practical reforms. To illustrate, the Guardian review found that of the 15 state legislatures that introduced bills that would see special prosecutors handle officer involved killings—in some, if not all, cases—none had passed into law, "with most remaining at the committee stage."

As momentum for similar reforms continue to ebb and flow in varied state legislatures, practitioners in the practice areas of criminal law and civil rights will need to keep abreast of such developments.

Keywords: minority, trial lawyer, litigation, grand jury, California, SB 227, police-involved shootings

Handel Destinvil is assistant corporation counsel for the City of Newark Law Department in Newark, New Jersey.

Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).