Bill would consolidate deadly use of force prosecutions in Washington AG’s office

(The Center Square) – A Washington state proposal to create an independent prosecutor office for police deadly use of force incidents has drawn controversy for placing it within the State Attorney General’s Office.

While some opponents of House Bill 1579 say they’re in favor of shifting prosecuting decisions for deadly use of force incidents away from local prosecutors and to an independent state agency, they argue that having it within the State Attorney General’s Office creates a conflict of interest.

Speaking at a Jan. 31 public hearing in the House Community Safety, Justice, & Reentry Committee, Washington Association of Prosecuting Attorneys Executive Director Russell Brown argued that the bill not only creates a “guilty until proven innocent” provision for county prosecutors, but denies them the ability to choose their own counsel if there is in fact a conflict of interest that forces them to recuse themselves.

He noted that these clauses in the bill create “constitutional concerns,” though David Trieweiler representing the Washington Association of Criminal Defense Attorneys argued at the same public hearing that those concerns “are unfounded.”

Under current state law, county prosecutors generally decide whether to file criminal charges against a police officer involved in a deadly use of force incident. The state Attorney General’s Office can intervene under certain circumstances, including if the local prosecutor is found to not be adequately enforcing the law, but only with concurrence from either the county prosecutor or the governor. The state attorney general can then only take over a case if and after the county prosecutor has failed to take actions deems “necessary and proper.”

In 2021, the state Legislature created the Office of Independent Investigation, or OII, to conduct investigations into deadly use of force incidents. That office currently lacks the authority to file criminal charges if the investigation finds the officer violated the law.

HB 1579 sponsored by Rep. Monica Stonier, D-Vancouver, would create an Office of Independent Prosecutions, or OIP, within the State Attorney General’s Office and give it authority to review investigations of deadly use of force incidents and file charges. In the event no charges are filed, OIP would publish a report on its website explaining its decision.

The bill would also create an 11-member advisory board to recommend independent counsels for OIP. The state attorney general would determine which candidate would be selected or, if all are rejected, demand the advisory board provide additional recommendations.

The bill also requires county prosecutors determine whether they must recuse themselves in a case involving police deadly use of force based on several criteria. If so, they must transfer the case to OIP within 30 days of receiving the case from OII.

Stonier told Community Safety, Justice, & Reentry Committee at a Jan. 31 public hearing that “ultimately if we are to continue to foster trust in communities where it is broken, we want to make sure the processes are independent of politics, independent of conflict, and transparent to the people who are impacted by decisions that are made.”

Washington Association of Sheriffs and Police Chiefs Policy Director James McMahan told legislators at the Jan. 31 public hearing that the bill presumes “prosecutors are not capable of charging police officers with criminal offenses.”

HB 1579’s bill language explicitly states that prosecutors “must overcome a presumption that the county prosecuting attorney has an inherent conflict of interest in any matter arising from an investigation within the scope of the office of independent investigations.”

“The perception that police officers aren’t regularly charged with crimes is not proof that the system is corrupt,” McMahan added. “It could also be proof that police officers do not regularly break the law. I think most of you would have the appropriate, similar concern is someone made that kind of assertion upon legislators themselves.”

He added that if the State Attorney’s Office were to house OIP it should remove itself from any law enforcement-related programs and activities, which includes development of a public database on police use of force incidents.

Also opposed to the bill was Michael Transue, lobbyist for the Washington State Fraternal Order of Police, who argued that the OIP “is more appropriately located outside the Attorney General’s Office.”

He also spoke favorably of an independent prosecuting office, saying that the current system affords too much discretion, as one county’s prosecutor’s decision-making process can vary widely from another.

HB 1579 is currently in that body’s Rules Committee for review.