The four judges who sit on the Circuit Court for Arlington County — Chief Judge William T. Newman Jr., Daniel S. Fiore II, Louise M. DiMatteo and Judith L. Wheat — issued an order this month requiring prosecutors to file motions stating all the factual reasons when they amend indictments, decide not to prosecute a case or dismiss charges. The March 4 order is framed around the need for the efficient administration of justice and the court’s ability to properly consider issues, but there were no such requirements of the commonwealth’s attorney in the past. Indeed, legal experts characterized the standing order as unheard of, telling us they are unaware of anywhere else such requirements are in place.
That’s because, according to Miriam Krinsky of Fair and Just Prosecution, for elected prosecutors the exercise of discretion is “fundamental, well settled and an integral part of their obligation to pursue justice.” No prosecutor has the ability or resources to prosecute every case or every violation of law, so every day they make the very kinds of decisions — about how to charge cases, what cases to dismiss, what plea bargains to offer — that the Arlington judges are now challenging.
Prosecutors may have good reasons not to spell out why they are lowering a charge or dismissing a case. What if they had made an agreement for a suspect to cooperate in a larger investigation or an informant or victim was no longer willing to cooperate with the government? What if the arrest had revealed suspect police practices that required further review? What if the office was about to launch a major investigation and determined it didn’t have the resources to prosecute lesser crimes? Speaking of resources, was it really necessary for the court to be briefed — with a 28-page filing from the public defender — about the decision not to prosecute someone found with a small amount of marijuana after making an illegal right turn on red, who was later able to prove that his medical conditions authorized his possession of the drug?
There are instances where judicial interference in prosecutors’ decisions may be warranted, say where there has been a showing of discrimination or prosecutorial harassment, but that’s not what is happening here. Ms. Dehghani-Tafti is part of a new generation of prosecutors who have criticized tough-on-crime policies and have advanced an agenda for a smarter, more equitable, more compassionate judicial approach. That agenda may upset the status quo, but efforts by Arlington judges — who declined comment when we contacted their chambers — to second-guess her exercise of settled prosecutorial discretion are unwarranted and unsettling. It is an encroachment on the separation of powers and a slap in the face to the voters of Arlington and Falls Church who elected Ms. Dehghani-Tafti as commonwealth’s attorney.