Charging

General Charging Standard:

It is the policy of the Office of the Kitsap County Prosecuting Attorney to charge the crime or crimes that accurately reflect the defendant's criminal conduct, taking into account reasonably foreseeable defenses, and for which we expect to be able to produce at trial proof beyond a reasonable doubt. The decision to charge a crime will not be based on race, creed, national origin, sexual orientation, or membership in any other protected classes set forth in RCW 49.60.  Further, all charging decisions will be made in accordance with the Special Responsibilities of a Prosecutor set forth in the Washington Rules of Professional Conduct.  RPC 3.8. The policies expressed herein should apply equally to prosecutions of felonies, misdemeanors and juvenile matters.

1. Investigation - Charges should not be filed until the investigation is complete.  RCW 9.94A.411. A prosecuting attorney depends on law enforcement agencies to conduct the necessary factual investigation which must precede the decision to prosecute.  The prosecuting attorney should ensure through follow-up communication with the investigators that a thorough factual investigation has been conducted before a decision to prosecute is made. The prosecuting attorney may delay charging pending a complete and full investigation by law enforcement.
2. Counts, Degrees, and Enhancements - Counts, degrees, and enhancements should initially be filed conservatively. The defendant will be expected to plead guilty to the initial Complaint or Information.  However, multiple counts, higher degrees and sentence enhancements should be charged when they more accurately reflect the defendant's criminal activity.
3. Charge Upgrade - If the defendant does not plead guilty to the initial charge or charges, or if the defendant commits additional crimes following charging, additional counts may be added, the degree of the crime may be increased, and enhancements may be added to the original charges in order to fully reflect the criminal conduct, or to ensure restitution to all victims of the defendant's criminal conduct. 
4. Persistent Offender Cases - Because of the severity of punishment to be imposed upon conviction, Persistent Offender cases will not be filed in marginal or extremely circumstantial cases.  A decision not to seek Persistent Offender sanctions on a defendant otherwise qualified will be approved by the Prosecuting attorney or his or her designee if unavailable.
5. Declining to File Charges – 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 or would result in decreased respect for the law.  Specific examples of such instances are set forth in RCW 9.94A.411.

Appeal of Decision to Decline to File Charges:

The specific reasons for declining a case shall be set forth on a decline form which shall become attorney work product and be part of the Prosecutor's case file.  A copy of the form shall be given to the officer representing the police agency that originated the case.  After speaking with the Deputy Prosecutor who made the decision to decline to prosecute, the decision to decline may be appealed to the Chief of the relevant Criminal Division or to the Prosecutor. The Prosecutor shall personally review any decline at the request of the Chief of the originating police agency, or his or her designee, or of the Sheriff, or his or her designee.

Any citizen involved in a criminal transaction, in any capacity other than as a suspect or defendant, may also seek review of the decision to decline to file the charges.  Inquiry should first be directed to the deputy prosecutor responsible for the charging decision. If necessary, further inquiry shall be directed to the Chief of the relevant Criminal Division and then, in turn, to the Prosecutor. 

Sentencing

General Sentencing Recommendations Standard:

In recommending sentences to the Court, and consistent with Washington's Sentencing Reform Act, it is the policy of the Office of the Kitsap County Prosecuting Attorney to:

1. Ensure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender's criminal history;
2. Protect the public and promote respect for the law by providing punishment which is just;
3. Be commensurate with the punishment imposed on others committing similar offenses;
4. Make frugal use of the State's resources; and
5. Offer the offender an opportunity to improve him-or-herself and reduce the risk of re-offense by offenders in the community.

Sentence Recommendation Factors:

The trial deputy shall consider the following factors in making a sentence recommendation:

1. Whether the defendant has a history of criminal activity and the seriousness of said criminal history;
2. Whether the defendant agrees to an early plea (this takes into account that an early plea reduces the impact upon the limited resources of the criminal justice system and avoids the adverse impact of further hearings and a trial upon the victim and witnesses, and recognizes that the defendant is taking prompt responsibility for his or her actions);
3. Whether the defendant has agreed to pay restitution or has agreed to return property to the victim;
4. Whether the defendant cooperated with law enforcement or is willing to cooperate with law enforcement in the future;
5. The probable effect on witnesses;
6. A request by the victim when it is not the result of pressure from the defendant;
7. Whenever a defendant is convicted of two or more offenses arising from a single incident, the prosecutor should recommend concurrent sentences. However, consecutive sentences may be recommended if it more accurately reflects the defendant's criminal activity;
8. Whether the defendant has uncharged offenses and sentencing enhancements;
9. Whether the defendant has previously received treatment based alternatives (diversion, deferred prosecution, treatment courts, DOSA, SSOSA, etc.) and failed to maintain law abiding behavior; and
10. Any of the charging factors.  This would include any factors that were not sufficient to merit declining to file a charge or charges, but do merit consideration in making a sentencing recommendation.

Firearm Forfeiture:

All plea agreements will require the forfeiture of any seized firearms.

All Plea Agreements to be Honored:

All plea offers made by any prosecutor and accepted by the defendant according to the terms of the offer shall be honored and fairly presented.  However, all plea agreements are conditional. The Prosecutor's office is released from the plea agreement's obligations if the agreement is found to be based upon a mistake of fact or a misrepresentation, if the defendant has committed additional criminal acts between the date of the guilty plea and the sentencing date, if the defendant fails to appear for sentencing, or otherwise acts in such a fashion so as to have changed the circumstances of (or actually breached) the agreement.