H-2763.1
THIRD SUBSTITUTE HOUSE BILL 1579
State of Washington 68th Legislature 2024 Regular Session
By House Appropriations (originally sponsored by Representatives
Stonier, Bateman, Lekanoff, Reed, Pollet, and Macri)
READ FIRST TIME 01/26/24.
1 AN ACT Relating to establishing a mechanism for independent
2 prosecutions within the office of the attorney general of criminal
3 conduct arising from police use of force; amending RCW 43.10.230,
4 43.10.232, 43.10.234, 36.27.020, 36.27.030, 43.102.080, and
5 41.80.400; adding a new section to chapter 36.27 RCW; adding new
6 sections to chapter 43.10 RCW; creating a new section; and providing
7 an effective date.
8 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
9 Sec. 1. RCW 43.10.230 and 1981 c 335 s 1 are each amended to
10 read as follows:
11 The purpose of RCW 43.10.232 is to grant authority to the
12 attorney general concurrent with the county prosecuting attorneys to
13 investigate and prosecute crimes, including deaths from the use of
14 deadly force by an involved officer as those terms are defined in RCW
15 43.102.010. The purpose of RCW ((43.10.234)) 10.01.190 is to
16 ((insure)) ensure access by the attorney general to the procedural
17 powers of the various prosecuting attorneys in exercising criminal
18 prosecutorial authority granted in RCW 43.10.232 or otherwise granted
19 by the legislature.
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 1 Sec. 2. RCW 43.10.232 and 1986 c 257 s 16 are each amended to
2 read as follows:
3 (1)(a) The attorney general shall have concurrent authority and
4 power with the prosecuting attorneys to investigate crimes and
5 initiate and conduct prosecutions ((upon the request of or with the
6 concurrence of any of the following)):
7 (((a) The)) (i) Upon the request of or with the concurrence of
8 the county prosecuting attorney of the jurisdiction in which the
9 offense has occurred;
10 (((b) The)) (ii) Upon the request of or with the concurrence of
11 the governor of the state of Washington; or
12 (((c) A majority of the committee charged with the oversight of
13 the organized crime intelligence unit)) (iii) As provided in
14 subsection (2) of this section.
15 (((2) Such)) (b) A request or concurrence shall be communicated
16 in writing to the attorney general.
17 (((3))) (c) Prior to any prosecution by the attorney general
18 under (a) of this ((section)) subsection, the attorney general and
19 the county in which the offense occurred shall reach an agreement
20 regarding the payment of all costs, including expert witness fees,
21 and defense attorneys' fees associated with any such prosecution.
22 (2)(a) The attorney general's office of independent prosecutions
23 shall have concurrent authority and power with the prosecuting
24 attorneys to review investigations and initiate and conduct
25 prosecutions of applicable use of force cases, as defined in this
26 chapter. "Prosecution" includes appeals and requests for
27 postconviction relief.
28 (b) In any prosecution pursuant to this subsection, the attorney
29 general's office of independent prosecutions may prosecute related
30 offenses and defendants. Related offenses and defendants for purposes
31 of this subsection are those offenses and defendants that may be
32 joined in an information as provided by law or by the criminal rules
33 for the superior courts of the state of Washington. Related offenses
34 also include crimes arising from or discovered during the course of
35 the use of force investigation when such crimes have a relationship
36 to the use of force investigation or to a prosecution of the use of
37 force incident.
38 (c) Nothing in this subsection affects the authority of the
39 prosecuting attorney to conduct prosecutions of crimes committed by
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 1 an individual who is the subject of the use of force action by the
2 involved officer.
3 (d) The authority of the attorney general's office of independent
4 prosecutions under this subsection applies to any applicable use of
5 force case as defined in this chapter.
6 (e) The attorney general's office shall be responsible for its
7 expert witness fees and other costs of prosecution associated with
8 prosecutions it undertakes pursuant to this subsection. The attorney
9 general's office shall not be responsible for defense costs,
10 including defense attorneys' fees, defense expert witness fees, or
11 any other cost related to the defense in a criminal prosecution
12 brought pursuant to this subsection. Reimbursement for costs are
13 subject to the provisions of RCW 9A.16.046. The county in which the
14 action is filed shall be responsible for court administration costs
15 and public defense costs if the defendant so qualifies.
16 Sec. 3. RCW 43.10.234 and 1981 c 335 s 3 are each amended to
17 read as follows:
18 (1) If both a prosecuting attorney and the attorney general file
19 an information or indictment charging a defendant with substantially
20 the same offense(s), the court shall, upon motion of either the
21 prosecuting attorney or the attorney general:
22 (((1))) (a) Determine whose prosecution of the case will best
23 promote the interests of justice and enter an order designating that
24 person as the prosecuting authority in the case; and
25 (((2))) (b) Enter an order dismissing the information or
26 indictment filed by the person who was not designated the prosecuting
27 authority.
28 (2) For purposes of designating the prosecuting authority where
29 information or an indictment has been filed by both the office of the
30 attorney general pursuant to RCW 43.10.232(2) and the prosecuting
31 attorney pursuant to RCW 36.27.020, the court shall, in accordance
32 with section 4 of this act, prioritize the public's interest in
33 ensuring a fair and impartial prosecution and trial that is free from
34 bias or the appearance of bias, prejudice, or conflict of interest.
35 In any judicial proceeding under this subsection, in order to be
36 designated the prosecuting authority, the county prosecuting attorney
37 must overcome a presumption that the county prosecuting attorney has
38 an inherent conflict of interest in any applicable use of force case.
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 1 NEW SECTION. Sec. 4. FINDINGS. The legislature finds that the
2 Washington state Constitution provides that the legislature shall
3 prescribe the duties of both the attorney general and the county
4 prosecuting attorneys. The legislature finds that the close working
5 relationships and intertwined duties between local law enforcement
6 and local prosecutors can give the appearance of bias in review of
7 incidents of use of deadly force by Washington peace officers and
8 corrections officers.
9 In order to increase public confidence in the fairness of review
10 of investigations of incidents of use of deadly force by Washington
11 peace officers and corrections officers, and to ensure independence
12 and transparency in such reviews, the legislature finds it necessary
13 to create an office of independent prosecutions within the attorney
14 general's office. The legislature further finds that prosecutions by
15 the independent prosecutor will best promote the interests of
16 justice.
17 NEW SECTION. Sec. 5. CREATION. (1) Subject to the availability
18 of amounts appropriated for this specific purpose, the office of
19 independent prosecutions is hereby established within the office of
20 the attorney general for the purpose of reviewing investigations of
21 applicable use of force cases. The office is hereby authorized to
22 review such investigations, decline criminal charges when
23 appropriate, file criminal charges when appropriate, and prosecute
24 such cases to the conclusion of the case, including appeals and
25 collateral attacks.
26 (2)(a) The office shall be a separate division within the
27 attorney general's office. The office shall maintain policies and
28 procedures to ensure that personnel outside the office of independent
29 prosecutions with an actual and perceived conflict, including other
30 employees and divisions of the attorney general's office, shall be
31 screened from the investigation and prosecution of any case.
32 (b) To address the presumption of an inherent conflict of
33 interest, when the office receives a report from the office of
34 independent investigations in a matter in which the use of deadly
35 force was by a general authority peace officer at a state agency, an
36 employee of the department of corrections, an employee of a limited
37 authority law enforcement agency, or an employee of a police
38 department at a public institution of higher education, the office
39 shall contract pursuant to its authority under section 10 of this act
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1 with a special assistant attorney general to perform or review
2 investigations and to prosecute if charged.
3 (3) The office shall have authority to adopt rules for the
4 maintaining of independent decision making and review of
5 investigations of applicable use of force cases.
6 NEW SECTION. Sec. 6. AUTHORITY OF ATTORNEY GENERAL REGARDING
7 OFFICE OF INDEPENDENT PROSECUTIONS. (1) The attorney general shall
8 determine the compensation and appoint a licensed attorney as
9 independent counsel to lead the office of independent prosecutions.
10 The independent counsel shall have final decision-making authority
11 for:
12 (a) Hiring and terminating personnel within the office of
13 independent prosecutions;
14 (b) Declining the filing of criminal charges after thorough
15 review of an applicable use of force case;
16 (c) Filing criminal charges after thorough review of an
17 applicable use of force case; and
18 (d) All aspects of the litigation of the office of independent
19 prosecutions.
20 (2) The attorney general may remove the independent counsel prior
21 to the expiration of the independent counsel's term for misconduct or
22 inability to perform duties. The attorney general shall otherwise be
23 screened from the work of the office of independent prosecutions. The
24 attorney general shall provide no input and have no decision-making
25 authority over whether criminal charges are filed after review of an
26 investigation of an applicable use of force case.
27 (3) The office of independent prosecutions shall be subject to
28 the policies and procedures applicable to employees of the attorney
29 general's office except where those policies and procedures conflict
30 with the duties of the office of independent prosecutions.
31 NEW SECTION. Sec. 7. OFFICE OF INDEPENDENT PROSECUTIONS
32 ADVISORY BOARD. (1)(a) There is created the office of independent
33 prosecutions advisory board. The advisory board shall consist of the
34 following members, appointed by the attorney general:
35 (i) Three members of the general public representing the
36 community who are not current or former law enforcement, with
37 preference given to individuals representing diverse communities;
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 1 (ii) Two members of the general public representing families
2 affected by an incident of the nature under the jurisdiction of the
3 office of independent prosecutions, who are not current or former law
4 enforcement;
5 (iii) One member representing a federally recognized tribe in
6 Washington, who is not current or former law enforcement;
7 (iv) One defense attorney representative;
8 (v) Two prosecuting attorney representatives; and
9 (vi) Two active or retired law enforcement personnel.
10 (b) The attorney general, when making appointments to the
11 advisory board, shall make appointments that reflect the cultural
12 diversity of the state of Washington.
13 (2) The attorney general shall select the independent counsel
14 from a list of three candidates recommended by the advisory board
15 unless the attorney general declines to select any of the candidates
16 provided. If the attorney general declines to select a candidate
17 proposed by the advisory board, the attorney general may request the
18 advisory board to provide additional qualified nominees for
19 consideration or may offer an alternative candidate who may be
20 appointed following approval by a majority of the advisory board.
21 (3) In consultation with the independent counsel, the advisory
22 board shall submit a report with related recommendations to the
23 legislature and the governor by November 1, 2026, concerning the
24 cases that have been reviewed by the independent counsel under this
25 chapter, any cases that have come before a judge under RCW 43.10.234,
26 the disposition and outcomes of such cases, and whether there are any
27 changes needed in state law to increase public confidence in the
28 handling of cases under this chapter. The advisory board must seek
29 input from the public in its preparation of this report.
30 NEW SECTION. Sec. 8. INDEPENDENT COUNSEL. (1) The independent
31 counsel must meet the following minimum criteria for consideration of
32 appointment by the attorney general:
33 (a) Licensure to practice law in the state of Washington;
34 (b) No documented criminal or disciplinary history involving
35 dishonesty, discrimination against persons of color or marginalized
36 communities, or abuse of power; and
37 (c) Submission to a background check, including an assessment of
38 criminal history and research of social media and affiliations to
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 1 check for racial bias and conflicts of interest, prior to appointment
2 by the attorney general.
3 (2) Should the independent counsel resign, become incapacitated,
4 or be removed as set forth in this chapter, the attorney general
5 shall appoint an interim independent counsel within 24 hours, which
6 person shall serve as independent counsel until such time as a new
7 independent counsel can be appointed.
8 (3) The independent counsel shall hold the office for a term of
9 three years and continue to hold office until reappointed or until
10 his or her successor is appointed.
11 NEW SECTION. Sec. 9. POWERS AND DUTIES OF INDEPENDENT COUNSEL.
12 (1) The independent counsel shall:
13 (a) Oversee the duties and functions of the office of independent
14 prosecutions pursuant to this chapter;
15 (b) Hire or contract with attorneys, investigators, advocates for
16 those subjected to deadly force and their surviving family members,
17 and other personnel as necessary to perform investigations and
18 prosecutions conducted by the office, and other duties as required
19 under this chapter;
20 (c) Plan and provide trainings for office personnel, including
21 hired or contracted attorneys and investigators, that promote
22 recognition of and respect for the diverse races, ethnicities, and
23 cultures of the state;
24 (d) Enter into contracts and memoranda of understanding as
25 necessary to implement the responsibilities of the office under this
26 chapter;
27 (e) Ensure that persons subjected to use of deadly force by an
28 involved officer, or their survivors, are kept apprised of the status
29 of the review of the investigation, any charging decisions, all court
30 hearings, and the status of any prosecution; and ensure that all
31 victims of charged crimes, or their surviving family members, are
32 afforded the rights set forth in RCW 7.69.030;
33 (f) Perform the duties and exercise the powers set forth in this
34 chapter, as well as any additional duties and powers that may be
35 prescribed; and
36 (g) Establish policies and procedures to ensure that personnel
37 with actual and apparent conflicts are screened from the review of
38 the investigation for criminal charges.
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 1 (2) The independent counsel or the independent counsel's
2 designees within the office shall make decisions pertaining to the
3 declining or filing of criminal charges independent of the attorney
4 general.
5 NEW SECTION. Sec. 10. PERSONNEL. (1) The independent counsel
6 may employ, or enter into contracts with, persons or entities as they
7 determine necessary for the proper discharge of the duties prescribed
8 to the independent counsel in this chapter.
9 (2) The independent counsel may employ assistant attorneys
10 general, or appoint and contract with special assistant attorneys
11 general, to perform or review investigations and prosecute charged
12 cases.
13 (3) The independent counsel may employ or contract for other
14 necessary personnel to perform the duties prescribed in this chapter
15 to include, but not limited to:
16 (a) Forensic services and crime scene investigators;
17 (b) Liaisons for community, family, and relations with tribal
18 nations and members;
19 (c) Analysts, including analysts to conduct evaluations on use of
20 force;
21 (d) Mental health experts;
22 (e) Bilingual staff, translators, or interpreters;
23 (f) Other experts as needed; and
24 (g) All staffing and other needs for the office of independent
25 p