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Every year Virginia lawmakers introduce bills to decriminalize possession of small amounts of marijuana. Every year, they fail despite overwhelming public support.

Now, a handful of locally elected prosecutors are taking up the issue, announcing that they will no longer prosecute most simple possession cases.

Not all local judges, however, are willing to go along with it.

The standoff sets up a legal battle over the extent of prosecutorial discretion that will likely to be decided by the Supreme Court of Virginia.

“What we’re witnessing is a dispute over the appropriate separation of powers,” said Richmond defense attorney Steve Benjamin. “May a prosecutor on his or her own discretion choose not to prosecute conduct the General Assembly has criminalized?”

Two localities, two very different outcomes

Norfolk Commonwealth’s Attorney Greg Underwood sent local judges a letter in January telling them he intended to dismiss all misdemeanor possession cases referred to his office. It was part of a broader package of criminal justice reforms he said was aimed at avoiding “disparate impacts on citizens.”

Portsmouth Commonwealth’s Attorney Stephanie Morales made a similar announcement this month, first reported by WAVY-TV, saying she’d dismiss most misdemeanor possession cases as long as the defendant isn’t also charged with a violent crime and agrees to pay court costs, generally about $165.

In Portsmouth, Morales says local judges have agreed to go along with the plan.

In Norfolk, they’ve united to block it.

“We are of one mind on this,” Norfolk Circuit Judge Mary Jane Hall told Underwood’s office during a hearing earlier this month, according to The Virginian-Pilot, which reports the judges have repeatedly denied motions to dismiss the cases.

Prosecutors cite disparity in charging, judges say tell it to the legislature

In arguing to dismiss the case against a 24-year-old black man who had appealed his conviction to Circuit Court, Deputy Commonwealth’s Attorney Ramin Fatehi told the judge that 81 percent of the people charged with first or second-offense marijuana possession are black, despite the fact that black residents account for only 42 percent of the city’s population, according to the Pilot.

A review of court records shows the disparity in charging holds true throughout the state, despite research showing black and white people use marijuana at roughly the same rates.

In Virginia’s 10 biggest localities last year, the difference between the percentage of black residents in a locality and the percentage of marijuana charges lodged against black defendants ranged from 46 percentage points in Arlington County to 20 percentage points in Prince William.


Black defendants are also slightly more likely than white defendants to be found guilty rather than have their charges dismissed, according to the records, which were compiled from the state’s online court information system by VirginiaCourtData.org.

Underwood argues disparity in charging “breeds a reluctance on the part of African Americans, particular young African-American men, to trust or cooperate with the justice system.”

Judge Hall said she found the argument compelling, but Underwood needs to take it to the state legislature, according to the Pilot: “I believe this is an attempt to usurp the power of the state legislature,” Hall said. “This is a decision that must be made by the General Assembly, not by the commonwealth’s attorney’s office.”

Prosecutors across the state exercise wide latitude in charging

Norfolk prosecutors argue that the decision to prosecute or dismiss a case is firmly within their discretion, and, indeed, prosecutors around the state take very different approaches to the charges.

A simple possession charge is punishable by up to a $500 fine and 30 days in jail. Jail time in marijuana possession cases, however, is relatively rare. A point-in-time count in 2017 found 127 people (a number that includes both pre- and post-trial offenders) were being held in jail solely on a marijuana charge, according to a study by the State Crime Commission.

(The report also offered three “theories” for the racial disparities: “racial inequality; area of residence and conscious/subconscious racial bias.”)

Instead, state code specifically lays out a first offender program that says judges and prosecutors can dismiss first offenses, but only after a period of probation that includes a drug treatment or education program, drug testing and varying levels of community service depending on whether a driver’s license suspension is ordered.

The 2017 State Crime Commission report says a first-time marijuana offender with court-appointed counsel can “expect to pay approximately $400 to $800 in costs and fees depending on the type of probation ordered.”

Some prosecutors hew closely to that program. Some have policies in place to amend charges to avoid triggering a license suspension. And some will handle charges in a manner that allows them to be expunged later, which isn’t allowed under the first offender program.

In still other localities, prosecutors and judges use their discretion to seek harsher penalties, favoring guilty pleas over dismissals.

Who’s right in Norfolk fight? The Supreme Court of Virginia will decide

Underwood sent a letter to the chief judge of Norfolk Circuit Court last month saying he would appeal their decision to block him from dismissing charges to the Virginia Supreme Court.

“Seeking a decision from the Virginia Supreme Court regarding this legal disagreement is in keeping with our collective pursuit of justice and the appropriate separation of powers,” he wrote.

A spokeswoman for his office said he has not yet filed the appeal.

Legal experts disagree over how the stalemate in Norfolk is likely to play out.

In some cases, the court has ruled in favor of wide-ranging prosecutorial discretion, Benjamin said. In other cases, he said, it’s ruled in favor of the supremacy of the legislature.

David Baugh, a Richmond defense attorney and former federal prosecutor, said he thinks Underwood has a strong case and has written him to tell him as much.

“A judge can’t tell you what to prosecute, how to prosecute or why,” he said.

But University of Richmond Law Professor Corinna Lain, a former prosecutor herself, says Underwood might have gone too far by implementing a blanket policy.

“It raises serious questions about the extent of prosecutorial discretion and whether it does in fact cross the line into the legislative arena by saying ‘I’m just not going to prosecute these,’” she said. “That’s a lot different than saying it’s not a priority or we’re going to look at these individually and only prosecute the most serious offenders. … If they weren’t so blatant or explicit about not enforcing it wholesale, I think this wouldn’t be a question.”

Benjamin, meanwhile, argues blanket policies that apply equally to all defendants are inherently more just than a case-by-case approach.

“What we don’t want is a system where college kids, for example, are given a walk on marijuana charge but kids from public housing communities face the full sanction of the law,” he said.