AN ACT Relating to
recommended prosecuting standards for juvenile charging and plea dispositions;
adding a new section to chapter 13.40 RCW; creating a new section; and
prescribing penalties.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec.
1. A new section is added
to chapter 13.40 RCW to read as follows:
RECOMMENDED
PROSECUTING STANDARDS
FOR
CHARGING AND PLEA DISPOSITIONS
INTRODUCTION: These
standards are intended solely for the guidance of prosecutors in the state of
Washington. They are not intended to, do not, and may not be relied upon to
create a right or benefit, substantive or procedural, enforceable at law by a
party in litigation with the state.
Evidentiary
sufficiency.
(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. The decision not
to prosecute or divert shall not be influenced by the race, gender, religion,
or creed of the suspect.
GUIDELINES/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;
(ii) Most members of
society act as if it were no longer in existence;
(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. The 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 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.
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 proved under RCW 13.40.160(5).
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.
The categorization of
crimes for these charging standards shall be the same as found in RCW
9.94A.440(2).
The decision to
prosecute or use diversion shall not be influenced by the race, gender,
religion, or creed of the respondent.
(3) Selection of
Charges/Degree of Charge
(a) The prosecutor
should file charges which adequately describe the nature of the respondent's
conduct. Other offenses may be charged only if they are necessary to ensure
that the charges:
(i) Will significantly
enhance the strength of the state's case at trial; or
(ii) Will result in
restitution to all victims.
(b) The
prosecutor should not overcharge to obtain a guilty plea. Overcharging
includes:
(i) Charging
a higher degree;
(ii) Charging
additional counts.
This standard is
intended to direct prosecutors to charge those crimes which demonstrate the
nature and seriousness of a respondent'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.
(4) 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.
(5) 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 that 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.
(6) 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.
(7) Prefiling
Discussions with Defendant
Discussions with the
defendant or his or her representative regarding the selection or disposition
of charges may occur prior to the filing of charges, and potential agreements
can be reached.
(8) Plea dispositions:
STANDARD
(a) Except as provided
in subsection (2) of this section, a respondent will normally be expected to
plead guilty to the charge or charges which adequately describe the nature of
his or her criminal conduct or go to trial.
(b) In certain
circumstances, a plea agreement with a respondent in exchange for a plea of
guilty to a charge or charges that may not fully describe the nature of his or
her criminal conduct may be necessary and in the public interest. Such
situations may include the following:
(i) Evidentiary
problems which make conviction of the original charges doubtful;
(ii) The respondent's
willingness to cooperate in the investigation or prosecution of others whose
criminal conduct is more serious or represents a greater public threat;
(iii) A request by the
victim when it is not the result of pressure from the respondent;
(iv) The discovery of
facts which mitigate the seriousness of the respondent's conduct;
(v) The correction of
errors in the initial charging decision;
(vi) The respondent's history
with respect to criminal activity;
(vii) The nature and
seriousness of the offense or offenses charged;
(viii) The probable
effect of witnesses.
(c) No plea agreement
shall be influenced by the race, gender, religion, or creed of the respondent. This
includes but is not limited to the prosecutor's decision to utilize such
disposition alternatives as "Option B," the Special Sex Offender
Disposition Alternative, and manifest injustice.
(9) Disposition
recommendations:
STANDARD
The prosecutor may
reach an agreement regarding disposition recommendations.
The prosecutor shall
not agree to withhold relevant information from the court concerning the plea
agreement.
NEW SECTION. Sec.
2. A juvenile prosecutorial
standards pilot project shall be established in two counties. The purpose of
the juvenile prosecutorial standards pilot project is to demonstrate how
juvenile prosecutorial standards when formally implemented facilitate
uniformity of compliance in the filing of charges and plea negotiations. The
counties selected as pilot projects shall collect data on juvenile criminal
prosecutions for their respective counties. The data shall include aggregated
charging decisions, the reasons for the charging decisions cross tabulated by
the demographic characteristics of the offenders including, but not limited to,
race, age, and the type of crime, and other data as defined by the Washington
association of prosecuting attorneys in coordination with the commission on
African-American affairs, commission on Hispanic affairs, Washington state
commission on Asian Pacific American affairs, and the governor's office of
Indian affairs. The two counties selected as juvenile prosecutorial pilot
projects shall be selected by the Washington association of prosecuting
attorneys and shall consist of one county in eastern Washington and one in
western Washington. The counties selected to participate in the pilot project
shall agree to participate voluntarily.
The
prosecuting attorney of each of the pilot project sites shall report his or her
findings to the appropriate committees of the legislature by December 12, 1996.
