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Prosecutor changing charging policy

Facing a tight budget, Clallam County Prosecutor Deb Kelly is changing how her office handles charging, plea negotiation and sentencing recommendations of property and drug crimes to provide more consistency and make better use of limited resources.

The changes to take effect Sept. 15 could include diverting some potential felony cases from Superior Court to District Court or Drug Court or a diversion program, which also would shift costs for prosecution and locking up the person from the county to the city whose police department made the arrest.

"A lot of jurisdictions are looking at where to focus resources and where to place priorities," Kelly said.

"But what it's about is trying to focus our efforts on the more violent crimes and do a better job on those, not push things back to the cities," she said.

"It's trying to do a good job with the resources I have; I can honestly say saving money was not a consideration," Kelly said.

When someone is prosecuted in Clallam County Superior Court for a felony crime - something punishable by at least one year in prison - the county is responsible for the costs of prosecution and keeping the person locked up until the trial is over.

If the person is convicted, he or she is transferred to the state Department of Corrections, which then picks up the costs.

But when someone is prosecuted in Clallam County District Court for a misdemeanor or gross misdemeanor - something punishable by respectively up to 90 days or up to one year in jail - the city is responsible for the prosecution and jail costs.

"It's my intention to go forward with it. It's not simply not filing felonies. It's filing some felonies in District Court and looking at resolution through Drug Court or diversion or possible reduction to a misdemeanor," Kelly said.

This change is supposed to create consistency among deputy prosecutors regarding how to approach charging, plea negotiations and diversions, she said.

"(The new policy) covers when it's appropriate to charge and not to charge. It includes charging, plea negotiation and sentencing."

"There's certainly some cases where it would be better to pursue it as a gross misdemeanor and hand it back to the city," she said.

Prosecutors have a fair amount of authority and how they charge someone can affect the outcome of a criminal case, Kelly said.

If two people are both facing the charge and have the same degree of culpability, they should receive the same sentence unless the facts of the case or their criminal histories are different, she said.

Kelly said this type of diversion of property and drug crimes has been done by some jurisdictions for years.

King County just announced it won't even accept property crime cases for prosecution unless at least $10,000 worth of property was stolen, she said.

Under state law, any theft of more than $250 worth of property can be filed as second-degree theft and any theft of more than $1,500 worth can be filed as first-degree theft, both of which are felonies.

"I've been talking about doing this for a long time and I let law enforcement agencies know it was coming down the pike. I sent out the draft and asked for comments," Kelly said.

Sequim City Councilor Paul McHugh said the city council was informed of the impending policy change by an e-mail from interim city manager Bob Spinks but there's been no formal discussion by the council.

"It's certainly a tough budget year for all of us," he said.

"A majority of our general fund goes to law enforcement, incarceration and prosecution. This would shift more of those costs from the county to the city in area that's truly a county responsibility," McHugh said.

He is bothered by the indication that drug crimes won't be prosecuted as aggressively when the majority of property crimes are people looking for money for drugs, McHugh said.

"That's an unpopular message if that is what is being sent," he said.

County Commissioner Steve Tharinger, D-Dungeness, said the decision is entirely up to Kelly as the county's chief legal officer and that it was not scheduled for review at the commissioners' Monday work session.

Although the county commissioners approve the prosecuting attorney office's budget, the prosecutor is individually elected.

Spinks said the new policy is not unusual, especially if Kelly is looking at alternative ways of clearing drug cases from the court calendar.

He hasn't attempted to calculate potential increased costs, Spinks said.

According to the 2007 annual report, the city recorded 702 misdemeanor or gross misdemeanor arrests and 313 felony arrests, a 162-percent increase from 2006, he said.

"The good part of her suggestion is making greater use of Drug Court and that's certainly positive. If there's a way to get to root cause of crime, that's a win," Spinks said.

"I applaud her looking at a greater breadth and depth of resources, take the appropriate individuals out of jail and get them help and use the very expensive jail beds to take care of the worst of the worst.

"She's got limited resources and trying to make the best use of those resources, and we are too," he said.

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