H-0178.1
HOUSE BILL 1071
State of Washington | 67th Legislature | 2021 Regular Session |
ByRepresentatives Valdez, Lekanoff, Leavitt, Fitzgibbon, Kloba, Ramel, Senn, Ortiz-Self, Gregerson, Goodman, Ryu, Ormsby, Santos, Macri, J. Johnson, Davis, Pollet, and Bergquist
Prefiled 01/04/21.Read first time 01/11/21.Referred to Committee on Public Safety.
AN ACT Relating to bias-based criminal offenses; and amending RCW
9.94A.411 and
9.94A.535.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1. RCW
9.94A.411 and 2019 c 46 s 5008 are each amended to read as follows:
(1) Decision not to prosecute.
STANDARD: A prosecuting attorney may decline to prosecute, even though technically sufficient evidence to prosecute exists, in situations where prosecution would serve no public purpose, would defeat the underlying purpose of the law in question or would result in decreased respect for the law.
GUIDELINE/COMMENTARY:
Examples
The following are examples of reasons not to prosecute which could satisfy the standard.
(a) Contrary to Legislative Intent - It may be proper to decline to charge where the application of criminal sanctions would be clearly contrary to the intent of the legislature in enacting the particular statute.
(b) Antiquated Statute - It may be proper to decline to charge where the statute in question is antiquated in that:
(i) It has not been enforced for many years; and
(ii) Most members of society act as if it were no longer in existence; and
(iii) It serves no deterrent or protective purpose in today's society; and
(iv) The statute has not been recently reconsidered by the legislature.
This reason is not to be construed as the basis for declining cases because the law in question is unpopular or because it is difficult to enforce.
(c) De Minimis Violation - It may be proper to decline to charge where the violation of law is only technical or insubstantial and where no public interest or deterrent purpose would be served by prosecution.
(d) Confinement on Other Charges - It may be proper to decline to charge because the accused has been sentenced on another charge to a lengthy period of confinement; and
(i) Conviction of the new offense would not merit any additional direct or collateral punishment;
(ii) The new offense is either a misdemeanor or a felony which is not particularly aggravated; and
(iii) Conviction of the new offense would not serve any significant deterrent purpose.
(e) Pending Conviction on Another Charge - It may be proper to decline to charge because the accused is facing a pending prosecution in the same or another county; and
(i) Conviction of the new offense would not merit any additional direct or collateral punishment;
(ii) Conviction in the pending prosecution is imminent;
(iii) The new offense is either a misdemeanor or a felony which is not particularly aggravated; and
(iv) Conviction of the new offense would not serve any significant deterrent purpose.
(f) High Disproportionate Cost of Prosecution - It may be proper to decline to charge where the cost of locating or transporting, or the burden on, prosecution witnesses is highly disproportionate to the importance of prosecuting the offense in question. This reason should be limited to minor cases and should not be relied upon in serious cases.
(g) Improper Motives of Complainant - It may be proper to decline charges because the motives of the complainant are improper and prosecution would serve no public purpose, would defeat the underlying purpose of the law in question or would result in decreased respect for the law.
(h) Immunity - It may be proper to decline to charge where immunity is to be given to an accused in order to prosecute another where the accused's information or testimony will reasonably lead to the conviction of others who are responsible for more serious criminal conduct or who represent a greater danger to the public interest.
(i) Victim Request - It may be proper to decline to charge because the victim requests that no criminal charges be filed and the case involves the following crimes or situations:
(i) Assault cases where the victim has suffered little or no injury;
(ii) Crimes against property, not involving violence, where no major loss was suffered;
(iii) Where doing so would not jeopardize the safety of society.
Care should be taken to insure that the victim's request is freely made and is not the product of threats or pressure by the accused.
The presence of these factors may also justify the decision to dismiss a prosecution which has been commenced.
Notification
The prosecutor is encouraged to notify the victim, when practical, and the law enforcement personnel, of the decision not to prosecute.
(2) Decision to prosecute.
(a) STANDARD:
Crimes against persons will be filed if sufficient admissible evidence exists, which, when considered with the most plausible, reasonably foreseeable defense that could be raised under the evidence, would justify conviction by a reasonable and objective fact finder. With regard to offenses prohibited by RCW
9A.44.040,
9A.44.050,
9A.44.073,
9A.44.076,
9A.44.079,
9A.44.083,
9A.44.086,
9A.44.089, and
9A.64.020 the prosecutor should avoid prefiling agreements or diversions intended to place the accused in a program of treatment or counseling, so that treatment, if determined to be beneficial, can be provided pursuant to RCW
9.94A.670.
Crimes against property/other crimes will be filed if the admissible evidence is of such convincing force as to make it probable that a reasonable and objective fact finder would convict after hearing all the admissible evidence and the most plausible defense that could be raised.
See table below for the crimes within these categories.
CATEGORIZATION OF CRIMES FOR PROSECUTING STANDARDS
CRIMES AGAINST PERSONS
4th Degree Assault (if a violation of RCW
9A.36.041(3))
1st Degree Assault of a Child (RCW
9A.36.120)
2nd Degree Assault of a Child (RCW
9A.36.130)
3rd Degree Assault of a Child (RCW
9A.36.140)
1st Degree Identity Theft (RCW
9.35.020(2))
2nd Degree Identity Theft (RCW
9.35.020(3))
1st Degree Criminal Mistreatment (RCW
9A.42.020)
2nd Degree Criminal Mistreatment (RCW
9A.42.030)
1st Degree Theft from a Vulnerable Adult (RCW
9A.56.400(1))
2nd Degree Theft from a Vulnerable Adult (RCW
9A.56.400(2))
1st Degree Promoting Prostitution (RCW
9A.88.070)
Intimidating a Public Servant (RCW
9A.76.180)
Bomb Threat (if against person) (RCW
9.61.160)
Criminal Mischief (if against person) (RCW
9A.84.010)
Counterfeiting (if a violation of RCW
9.16.035(4))
Felony Driving a Motor Vehicle While Under the Influence of Intoxicating Liquor or Any Drug (RCW
46.61.502(6))
Felony Physical Control of a Motor Vehicle While Under the Influence of Intoxicating Liquor or Any Drug (RCW
46.61.504(6))
CRIMES AGAINST PROPERTY/OTHER CRIMES
1st Degree Introducing Contraband (RCW
9A.76.140)
2nd Degree Introducing Contraband (RCW
9A.76.150)
1st Degree Possession of Stolen Property (RCW
9A.56.150)
2nd Degree Possession of Stolen Property (RCW
9A.56.160)
Bomb Threat (if against property) (RCW
9.61.160)
1st Degree Malicious Mischief (RCW
9A.48.070)
2nd Degree Malicious Mischief (RCW
9A.48.080)
2nd Degree Promoting Prostitution (RCW
9A.88.080)
Receiving/Granting Unlawful Compensation (RCW
9A.68.030)
Eluding a Pursuing Police Vehicle (RCW
46.61.024)
Willful Failure to Return from Furlough
Escape from Community Custody
Criminal Mischief (if against property) (RCW
9A.84.010)
1st Degree Theft of Livestock (RCW
9A.56.080)
2nd Degree Theft of Livestock (RCW
9A.56.083)
ALL OTHER UNCLASSIFIED FELONIES
Selection of Charges/Degree of Charge
(i) The prosecutor should file charges which adequately describe the nature of defendant's conduct. Other offenses may be charged only if they are necessary to ensure that the charges:
(A) Will significantly enhance the strength of the state's case at trial; or
(B) Will result in restitution to all victims.
(ii) The prosecutor should not overcharge to obtain a guilty plea. Overcharging includes:
(A) Charging a higher degree;
(B) Charging additional counts.
This standard is intended to direct prosecutors to charge those crimes which demonstrate the nature and seriousness of a defendant's criminal conduct, but to decline to charge crimes which are not necessary to such an indication. Crimes which do not merge as a matter of law, but which arise from the same course of conduct, do not all have to be charged.
(b) GUIDELINES/COMMENTARY:
(i) Police Investigation
A prosecuting attorney is dependent upon law enforcement agencies to conduct the necessary factual investigation which must precede the decision to prosecute. The prosecuting attorney shall ensure that a thorough factual investigation has been conducted before a decision to prosecute is made. In ordinary circumstances the investigation should include the following:
(A) The interviewing of all material witnesses, together with the obtaining of written statements whenever possible;
(B) The completion of necessary laboratory tests; and
(C) The obtaining, in accordance with constitutional requirements, of the suspect's version of the events.
If the initial investigation is incomplete, a prosecuting attorney should insist upon further investigation before a decision to prosecute is made, and specify what the investigation needs to include.
(ii) Exceptions
In certain situations, a prosecuting attorney may authorize filing of a criminal complaint before the investigation is complete if:
(A) Probable cause exists to believe the suspect is guilty; and
(B) The suspect presents a danger to the community or is likely to flee if not apprehended; or
(C) The arrest of the suspect is necessary to complete the investigation of the crime.
In the event that the exception to the standard is applied, the prosecuting attorney shall obtain a commitment from the law enforcement agency involved to complete the investigation in a timely manner. If the subsequent investigation does not produce sufficient evidence to meet the normal charging standard, the complaint should be dismissed.
(iii) Investigation Techniques
The prosecutor should be fully advised of the investigatory techniques that were used in the case investigation including:
(A) Polygraph testing;
(B) Hypnosis;
(C) Electronic surveillance;
(D) Use of informants.
(iv) Prefiling Discussions with Defendant
Discussions with the defendant or his/her representative regarding the selection or disposition of charges may occur prior to the filing of charges, and potential agreements can be reached.
(v) Prefiling Discussions with Victim(s)
Discussions with the victim(s) or victims' representatives regarding the selection or disposition of charges may occur before the filing of charges. The discussions may be considered by the prosecutor in charging and disposition decisions, and should be considered before reaching any agreement with the defendant regarding these decisions.
Sec. 2. RCW
9.94A.535 and 2019 c 219 s 1 are each amended to read as follows:
The court may impose a sentence outside the standard sentence range for an offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence. Facts supporting aggravated sentences, other than the fact of a prior conviction, shall be determined pursuant to the provisions of RCW
9.94A.537.
Whenever a sentence outside the standard sentence range is imposed, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law. A sentence outside the standard sentence range shall be a determinate sentence.
If the sentencing court finds that an exceptional sentence outside the standard sentence range should be imposed, the sentence is subject to review only as provided for in RCW
9.94A.585(4).
A departure from the standards in RCW
9.94A.589 (1) and (2) governing whether sentences are to be served consecutively or concurrently is an exceptional sentence subject to the limitations in this section, and may be appealed by the offender or the state as set forth in RCW
9.94A.585 (2) through (6).
(1) Mitigating Circumstances - Court to Consider
The court may impose an exceptional sentence below the standard range if it finds that mitigating circumstances are established by a preponderance of the evidence. The following are illustrative only and are not intended to be exclusive reasons for exceptional sentences.
(a) To a significant degree, the victim was an initiator, willing participant, aggressor, or provoker of the incident.
(b) Before detection, the defendant compensated, or made a good faith effort to compensate, the victim of the criminal conduct for any damage or injury sustained.
(c) The defendant committed the crime under duress, coercion, threat, or compulsion insufficient to constitute a complete defense but which significantly affected his or her conduct.
(d) The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime.
(e) The defendant's capacity to appreciate the wrongfulness of his or her conduct, or to conform his or her conduct to the requirements of the law, was significantly impaired. Voluntary use of drugs or alcohol is excluded.
(f) The offense was principally accomplished by another person and the defendant manifested extreme caution or sincere concern for the safety or well-being of the victim.
(g) The operation of the multiple offense policy of RCW
9.94A.589 results in a presumptive sentence that is clearly excessive in light of the purpose of this chapter, as expressed in RCW
9.94A.010.
(h) The defendant or the defendant's children suffered a continuing pattern of physical or sexual abuse by the victim of the offense and the offense is a response to that abuse.
(i) The defendant was making a good faith effort to obtain or provide medical assistance for someone who is experiencing a drug-related overdose.
(j) The current offense involved domestic violence, as defined in RCW
10.99.020, and the defendant suffered a continuing pattern of coercion, control, or abuse by the victim of the offense and the offense is a response to that coercion, control, or abuse.
(k) The defendant was convicted of vehicular homicide, by the operation of a vehicle in a reckless manner and has committed no other previous serious traffic offenses as defined in RCW
9.94A.030, and the sentence is clearly excessive in light of the purpose of this chapter, as expressed in RCW
9.94A.010.
(2) Aggravating Circumstances - Considered and Imposed by the Court
The trial court may impose an aggravated exceptional sentence without a finding of fact by a jury under the following circumstances:
(a) The defendant and the state both stipulate that justice is best served by the imposition of an exceptional sentence outside the standard range, and the court finds the exceptional sentence to be consistent with and in furtherance of the interests of justice and the purposes of the sentencing reform act.
(b) The defendant's prior unscored misdemeanor or prior unscored foreign criminal history results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW
9.94A.010.
(c) The defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished.
(d) The failure to consider the defendant's prior criminal history which was omitted from the offender score calculation pursuant to RCW
9.94A.525 results in a presumptive sentence that is clearly too lenient.
(3) Aggravating Circumstances - Considered by a Jury - Imposed by the Court
Except for circumstances listed in subsection (2) of this section, the following circumstances are an exclusive list of factors that can support a sentence above the standard range. Such facts should be determined by procedures specified in RCW
9.94A.537.
(a) The defendant's conduct during the commission of the current offense manifested deliberate cruelty to the victim.
(b) The defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance.
(c) The current offense was a violent offense, and the defendant knew that the victim of the current offense was pregnant.
(d) The current offense was a major economic offense or series of offenses, so identified by a consideration of any of the following factors:
(i) The current offense involved multiple victims or multiple incidents per victim;
(ii) The current offense involved attempted or actual monetary loss substantially greater than typical for the offense;
(iii) The current offense involved a high degree of sophistication or planning or occurred over a lengthy period of time; or
(iv) The defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense.
(e) The current offense was a major violation of the Uniform Controlled Substances Act, chapter
69.50 RCW (VUCSA), related to trafficking in controlled substances, which was more onerous than the typical offense of its statutory definition: The presence of ANY of the following may identify a current offense as a major VUCSA:
(i) The current offense involved at least three separate transactions in which controlled substances were sold, transferred, or possessed with intent to do so;
(ii) The current offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use;
(iii) The current offense involved the manufacture of controlled substances for use by other parties;
(iv) The circumstances of the current offense reveal the offender to have occupied a high position in the drug distribution hierarchy;
(v) The current offense involved a high degree of sophistication or planning, occurred over a lengthy period of time, or involved a broad geographic area of disbursement; or
(vi) The offender used his or her position or status to facilitate the commission of the current offense, including positions of trust, confidence or fiduciary responsibility (e.g., pharmacist, physician, or other medical professional).
(f) The current offense included a finding of sexual motivation pursuant to RCW
9.94A.835.
(g) The offense was part of an ongoing pattern of sexual abuse of the same victim under the age of ((eighteen))18 years manifested by multiple incidents over a prolonged period of time.
(h) The current offense involved domestic violence, as defined in RCW
10.99.020, or stalking, as defined in RCW
9A.46.110, and one or more of the following was present:
(i) The offense was part of an ongoing pattern of psychological, physical, or sexual abuse of a victim or multiple victims manifested by multiple incidents over a prolonged period of time;
(ii) The offense occurred within sight or sound of the victim's or the offender's minor children under the age of ((eighteen))18 years; or
(iii) The offender's conduct during the commission of the current offense manifested deliberate cruelty or intimidation of the victim.
(i) The offense resulted in the pregnancy of a child victim of rape.
(j) The defendant knew that the victim of the current offense was a youth who was not residing with a legal custodian and the defendant established or promoted the relationship for the primary purpose of victimization.
(k) The offense was committed with the intent to obstruct or impair human or animal health care or agricultural or forestry research or commercial production.
(l) The current offense is trafficking in the first degree or trafficking in the second degree and any victim was a minor at the time of the offense.
(m) The offense involved a high degree of sophistication or planning.
(n) The defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense.
(o) The defendant committed a current sex offense, has a history of sex offenses, and is not amenable to treatment.
(p) The offense involved an invasion of the victim's privacy.
(q) The defendant demonstrated or displayed an egregious lack of remorse.
(r) The offense involved a destructive and foreseeable impact on persons other than the victim.
(s) The defendant committed the offense to obtain or maintain his or her membership or to advance his or her position in the hierarchy of an organization, association, or identifiable group.
(t) The defendant committed the current offense shortly after being released from incarceration.
(u) The current offense is a burglary and the victim of the burglary was present in the building or residence when the crime was committed.
(v) The offense was committed against a law enforcement officer who was performing his or her official duties at the time of the offense, the offender knew that the victim was a law enforcement officer, and the victim's status as a law enforcement officer is not an element of the offense.
(w) The defendant committed the offense against a victim who was acting as a good samaritan.
(x) The defendant committed the offense against a public official or officer of the court in retaliation of the public official's performance of his or her duty to the criminal justice system.
(y) The victim's injuries substantially exceed the level of bodily harm necessary to satisfy the elements of the offense. This aggravator is not an exception to RCW
9.94A.530(2).
(z)(i)(A) The current offense is theft in the first degree, theft in the second degree, possession of stolen property in the first degree, or possession of stolen property in the second degree; (B) the stolen property involved is metal property; and (C) the property damage to the victim caused in the course of the theft of metal property is more than three times the value of the stolen metal property, or the theft of the metal property creates a public hazard.
(ii) For purposes of this subsection, "metal property" means commercial metal property, private metal property, or nonferrous metal property, as defined in RCW
19.290.010.
(aa) The defendant committed the offense with the intent to directly or indirectly cause any benefit, aggrandizement, gain, profit, or other advantage to or for a criminal street gang as defined in RCW
9.94A.030, its reputation, influence, or membership.
(bb) The current offense involved paying to view, over the internet in violation of RCW
9.68A.075, depictions of a minor engaged in an act of sexually explicit conduct as defined in RCW
9.68A.011(4) (a) through (g).
(cc) The offense was intentionally committed because the defendant perceived the victim to be homeless, as defined in RCW
9.94A.030.
(dd) The current offense involved a felony crime against persons, except for assault in the third degree pursuant to RCW
9A.36.031(1)(k), that occurs in a courtroom, jury room, judge's chamber, or any waiting area or corridor immediately adjacent to a courtroom, jury room, or judge's chamber. This subsection shall apply only: (i) During the times when a courtroom, jury room, or judge's chamber is being used for judicial purposes during court proceedings; and (ii) if signage was posted in compliance with RCW
2.28.200 at the time of the offense.
(ee) During the commission of the current offense, the defendant was driving in the opposite direction of the normal flow of traffic on a multiple lane highway, as defined by RCW
46.04.350, with a posted speed limit of ((
forty-five))
45 miles per hour or greater.
(ff) The current offense involved the assault of a utility employee of any publicly or privately owned utility company or agency, who is at the time of the act engaged in official duties, including: (i) The maintenance or repair of utility poles, lines, conduits, pipes, or other infrastructure; or (ii) connecting, disconnecting, or recording utility meters.
(gg) The current offense is an offense other than a hate crime offense pursuant to RCW 9A.36.080, and the defendant's conduct in committing the offense was motivated by the defendant's perception of the victim's race, color, religion, ancestry, national origin, gender, sexual orientation, gender expression or identity, or mental, physical, or sensory disability. --- END ---