Daniel Weir is counsel for special projects and foundation manager at the National Association of Criminal Defense Lawyers.
Incumbent Arlington County Commonwealth Attorney Theo Stamos characterized herself as a criminal justice reformer before anyone had heard the term. Yet when it comes to actual reform policies, Stamos repeatedly excuses her inaction by claiming a lack of discretion.
For instance, at a recent debate, Stamos said she had no choice but to continue prosecuting people for marijuana possession because it remained illegal in Virginia. Of course, the essence of prosecutorial discretion is having the choice to go forward with a criminal charge, not that a prosecutor must.
Stamos claimed that “virtually” no one goes to jail for marijuana possession anymore. Putting aside the obvious ambiguity in the word “virtually,” Stamos’s position evinces a glaring indifference to the very real and severe collateral consequences that result from any conviction, even one in which a person is not sentenced to jail. According to a report from the National Association for Criminal Defense Lawyers, collateral consequences that impact a convicted person’s employment, education, housing and ability to participate in civic life follow people from just a conviction and tend to last indefinitely. All for conduct that 63 percent of Virginians think should be legal.
Similarly, Stamos has said that though she would be “fine” if the state abolished the death penalty, she considered the death penalty a “feature” of the criminal justice system she would continue to pursue. Again, she wants people to think she is powerless to choose a different course.
Such responses should not be surprising coming from Stamos. Last year, when lawmakers drafted a letter asking her to stop seeking cash bail, Stamos called the letter “misguided,” as if the top prosecutor in Arlington had no role to play in ending a system that ties a person’s freedom to an ability to pay.
The truth is that Stamos’s inaction on meaningful reform is not a result of any lack of discretion.
Prosecutors in Philadelphia, Baltimore, Boston, Manhattan, Brooklyn, St. Louis, Albany, Dallas and Houston have taken steps to stop prosecuting marijuana possession without waiting for their respective states to change the law.
Prosecutors in other counties in Virginia have said “no” to cash bail.
In Florida, with the second highest death row population in the nation, State Attorney Aramis Ayala boldly announced she would not seek the death penalty. But in Virginia, a state with only three people on death row, Stamos cannot even do that much. Such is not the act of someone committed to criminal justice reform.
Progressive prosecutors work to represent the entire community. In a recent article she penned, Stamos wrote, “Justice is measured by doing right by the community.” But Stamos refuses to acknowledge that black people in the community are overly targeted. In fact, it seems the only time Stamos mentions race is to denounce that there is any bias in the criminal justice system.
Post columnist Radley Balko has identified more than 125 studies that reveal racial bias in various aspects of the criminal justice system. Arlington, where Stamos has been a prosecutor for more than three decades, is no exception. When it was pointed out to Stamos at a debate that while black people account for just 8.5 percent of Arlington, they make up more than 58 percent of the marijuana convictions, Stamos responded, “[I]t’s actually 9 percent.” Needless to say, she missed the point.
And it is more than just marijuana. Based on an analysis of data from the Virginia Supreme Court, between 2016 and 2018 in Arlington, black people made up more than 40 percent of non-marijuana drug possession convictions, 45 percent of disorderly conduct convictions, 50 percent of obstruction convictions and more than 60 percent of trespass and larceny convictions. To deny even the possibility of racial bias in the face of such realities is many things. Indifferent. Irresponsible. Inexcusable. But certainly not progressive.
A failure to enact meaningful reform is not about any lack of discretion but a lack of commitment to progressive policies that have been implemented — and that have worked without risking public safety — all across the country. Commonwealth attorneys in Virginia can do the same.
Stamos boasts on her website that discretion is the key feature of a prosecutor’s work. She may be correct. However, criminal justice reform, which is supported by a majority of Virginians, requires a commonwealth attorney who will use prosecutorial discretion as a tool to pursue policies the community wants instead of an excuse not to.