By Justin Jouvenal and Rachel Weiner
Jan. 2, 2020
Adults possessing small amounts of marijuana for personal use will no longer be prosecuted in two Northern Virginia counties, new prosecutors in Fairfax and Arlington said Thursday on one of their first days on the job.
The moves fulfill campaign pledges by Fairfax County Commonwealth’s Attorney Steve Descano and Arlington County Commonwealth’s Attorney Parisa Dehghani-Tafti, who won election in November promising sweeping criminal justice reform.
Both Descano and Dehghani-Tafti said pot possession prosecutions do little to protect public safety, disproportionately fall on people of color, saddle defendants with damaging convictions and drain resources that can better be spent on more serious crimes.
But the policy changes angered some critics who said the prosecutors were overstepping their authority and drew sharp questions from at least one Fairfax County judge.
Descano said the policy brings Fairfax County’s values into the courthouse. "I traveled around Fairfax County for over a year listening to people,” Descano said. “The thing that came up time and time again was simple possession of marijuana — how it was a waste of resources and led to unjust outcomes.”
Dehghani-Tafti’s office expressed a similar sentiment in a motion to the court. “In a world of limited resources, it is the Commonwealth’s position that these should be directed towards more serious felony offenses, towards offenses against people and their property, and towards investment in programs that demonstrably reduce recidivism,” the filing read.
Prosecutors in Fairfax will continue to pursue cases against people distributing marijuana and conspicuous public consumption of pot, Descano said. He said his office will make a case-by-case determination regarding whether the facts qualify as “simple possession” of marijuana.
In motions to dismiss three cases, Dehghani-Tafti said her office will examine each marijuana possession case and absent aggravating factors will not pursue prosecution. Such cases made up 14 percent of arrests and 10 percent of prosecutors’ caseload in Arlington last year.
Her office moved Thursday to dismiss a simple marijuana possession charge and downgraded another drug charge against the same defendant from a felony to a misdemeanor. Arlington Public Defender Brad Haywood said he and other defense attorneys said they were also getting copies of discovery materials, after years of fighting the previous commonwealth’s attorney over access.
“During plea negotiations, we have also already noticed an increased openness to mitigating facts, such as a defendant’s mental illness, struggles with substance use or the collateral consequences of a criminal conviction,” Haywood said.
The new policy quickly hit a speed bump in Fairfax County on Monday morning in the first case in which it was applied. Chief Deputy Commonwealth Attorney Terry Adams told Fairfax County General District Court Judge Mark C. Simmons that the government was dropping a possession charge against a defendant named Jose Diaz.
Adams gave a long statement about the problems the office saw with marijuana prosecutions. Simmons indicated he was skeptical of a blanket policy of dropping all marijuana possession cases, before denying the request to dismiss the case against Diaz, who did not have an attorney.
“In this court, everything is individualized,” Simmons said.
Simmons later reversed course and dismissed the possession charge against Diaz, after a public defender stepped in to represent him. Possession charges were also dismissed against five other defendants.
Sang Lee, of Centreville, who spoke limited English, was clearly relieved after his possession case was dismissed. Outside the courtroom, Lee asked if marijuana had been legalized, before a reporter explained that it had not.
“I feel awesome,” Lee said.
Fairfax County police said they have no immediate plans to change how they will enforce marijuana possession, but referred all other questions back to Descano’s office. Two Fairfax County police unions declined to comment on the policy.
While simple marijuana possession alone has not yet come up in an Arlington court, Arlington Coalition of Police President Scott Wanek said some officers already feel Dehghani-Tafti has been too lenient in other cases. He cited cases, including traffic cases and an assault case, where he said charges were reduced.
Wanek said officers are discussing pursuing their own misdemeanor cases in court. Virginia law allows such a move, but the Arlington police chief has said he would not make such a policy lightly. Descano said he has not heard of similar plans in Fairfax.
Amy Ashworth in Prince William County, who replaced longtime prosecutor Paul Ebert, said she plans to approach those charges on a case-by-case basis. Buta Biberaj, who took office in Loudoun County on a liberal platform, did not respond to requests for comment on her plans for marijuana prosecution.
State Sen. Mark Obenshain (R-Harrisonburg), who sits on the Courts of Justice committee, said Descano and Dehghani-Tafti are required to prosecute marijuana possession cases under the oath they swore to uphold the law.
“It is a problem when prosecutors unilaterally decide that because they disagree with a law they aren’t going to enforce it,” Obenshain said.
L. Steven Emmert, an attorney focusing on appellate issues, said the legality of the prosecutors’ moves remains untested. He said Virginia’s Supreme Court has never ruled directly on the topic.
“It presents an interesting separation of powers issue,” Emmert said. “In theory, a prosecutor should be able to say I’m going to choose which of these crimes I’m going to prosecute — that’s prosecutorial discretion — but what these prosecutors are doing is essentially deciding not to prosecute a whole class of offenses. That’s where the separation of powers issue comes in. The legislature has the power to say what’s illegal.”
There has already been some legal wrangling in this area.
Early last year, the Norfolk commonwealth’s attorney announced that he would stop pursuing circuit court appeals of marijuana possession cases because of the racial disparity among those charged.
The effort angered some circuit court judges, who said he was trodding on legislative turf. The judges refused to dismiss the charges in some cases, so prosecutor Greg Underwood asked the Virginia Supreme Court to compel the judges to do so. In May, the Supreme Court sided with the judges.
The Virginia legislature will take up bills that deal with decriminalizing and legalizing marijuana among a spate of other criminal justice reforms.
The policy changes in Fairfax and Arlington bring the counties more in line with some surrounding jurisdictions. Alexandria created a pot diversion program last summer. In 2015, the District legalized possession of marijuana under certain circumstances.
In Montgomery County, State’s Attorney John McCarthy’s office has not prosecuted personal possession marijuana cases since the state decriminalized pot possession about six years ago, he said. His office, more recently, also has scaled back prosecution of small “distribution cases” that, in reality, are no more than one friend selling a joint to another friend.
“Judges don’t want to see these de minimis marijuana cases. Juries don’t want to see them,” McCarthy said. “Jurors were telling us: ‘Why are you wasting our time with this?’ ”