Democratic candidates for chief prosecutor in Arlington and Fairfax upset longtime incumbents in June primaries with promises to stop charging marijuana possession cases. Now Alexandria Commonwealth’s Attorney Bryan Porter, who is up for reelection in two years, is taking a step in that direction with a diversion program for misdemeanor cases.
Virginia already allows diversion for first-time offenders, but Alexandria’s program will go beyond the provisions in state law. Participants do not have to plead guilty or stipulate that the facts support guilt, and no fines or court costs will be imposed. While the initial charge would not disappear, Porter said in a statement that his office “will liberally agree” to have such records expunged.
The program requires a drug screening, about 15 hours of community service and compliance with probation. After six to nine months, if a person has complied with those requirements, the case will be dismissed.
Steve T. Descano, Democratic candidate for the Fairfax prosecutor job, praised the plan in a tweet, adding, “Hope we can bring these types of reforms to” Fairfax. His independent opponent, former federal prosecutor Jonathan Fahey, says decriminalizing marijuana should be left to statewide officials.
Porter said he was looking for a way to minimize punishment for marijuana possession in light of a Virginia Supreme Court ruling that judges can block the dismissal of such cases.
“In my opinion, we do have the discretion to say, we’re not prosecuting it any more and leave it between the police department and the defendant, like a traffic ticket,” he said. But he argued that could lead to worse outcomes for defendants, who will have less ability to negotiate.
In Arlington, where Parisa Dehghani-Tafti, a longtime exoneration attorney, defeated Commonwealth’s Attorney Theo Stamos with a promise to stop prosecuting marijuana possession, police say they will continue to bring such cases to court themselves.
“I think this is the best compromise that allows people to avoid any criminal record, it avoids any costs, but it comports with my understanding of the current law,” Porter said.
The state Supreme Court sided with judges in Norfolk and Portsmouth who blocked prosecutorial efforts to dismiss marijuana cases en masse. But state Sen. Scott A. Surovell (D-Fairfax) said judges in Alexandria might not raise the same objections, and he believes the state Supreme Court would accept outright dismissal of these cases if a judge is part of the process.
But, he said, “Creating a local marijuana diversion and expungement docket is the right thing to do given that the House of Delegates has continued to block even the most basic criminal justice reform in Virginia.”
Porter, likewise, said that “in a perfect world, the Assembly would decriminalize marijuana possession and it wouldn’t be my responsibility at all, and we could focus on more serious crimes.”