The core of prosecutorial discretion lies not just in what to prosecute but also in what not to prosecute; not just when to start a case but also when to stop one. The decision to dismiss cases (or nolle prosequi) is driven by factors such as lack of evidence, problems with the investigation, the defendant’s cooperation or allocation of resources — things that the prosecution is in the best position to know and that are not always appropriate to air publicly.
In Arlington, and the rest of Virginia, a simple “The Commonwealth moves to nolle pros this case” was always enough. Short of evidence that the prosecutor was violating a defendant’s rights or acting in bad faith, these motions were routinely and quickly granted. This changed two months after I took office, when the court entered an unprecedented order requiring that all motions to amend indictments or dismiss a case be made in writing and accompanied by all factual and legal bases. Based on our research, this is the only order of its kind across Virginia.
The far-reaching and troubling implications of the court’s order were demonstrated in a recent opinion. There, the commonwealth moved to nolle pros a simple possession-of-marijuana charge against a defendant who had been found with less than one-eighth an ounce of suspected marijuana, for which he had a medical prescription. Rather than grant the oral motion, as courts routinely do around the commonwealth, the Circuit Court demanded written briefs, scheduled oral argument and then issued a 10-page opinion in which it cited Marbury v. Madison and the Federalist Papers instead of grappling with instructive Virginia law.
Ultimately, the court granted the routine motion, but not before opining that if the commonwealth moves to dismiss a charge, even where the defense agrees that the action is not taken in bad faith, the court will need to satisfy itself that the commonwealth is not engaging in “partisan enforcement of the laws.” Never before has the court expressed concern over “partisan enforcement of the laws” — not when prior administrations adopted harsh policies, implicitly tolerated racial and class disparities or pursued status crimes. Ironically, the Circuit Court staking out a role as guardian over “partisan enforcement of the laws” has thrust it headfirst into policymaking, something the Supreme Court of Virginia has expressly warned the judiciary against doing.
As an elected member of the executive branch — equal to the judicial branch — commonwealth’s attorneys are given discretion by the Virginia Constitution to determine what fair and just enforcement of the law in our community looks like and what is the best use of our limited resources to maximize the safety and well-being of our community. Throughout my campaign, I was very clear that my chief priority is to ensure that justice and safety are not opposing values. For too long, our criminal legal system has prioritized practices that, by design or impact, have resulted in gross race and class disparities. No longer.
Judges have a difficult job that I do not presume to do. Neither should a court presume to do the commonwealth’s job. To permit a court — a branch of government not charged with setting policy and unaccountable to voters — to set the priorities of the Office of the Commonwealth’s Attorney about whether and how to prosecute cases violates separation of powers and overrides the will of the voters.
I tried to avoid this outcome; I searched for an example in which the court had encroached upon the discretion of prior commonwealth’s attorneys as radically as it has encroached upon that discretion now but have not yet found one. The inescapable conclusion is that the court is attempting to limit my ability to do the work my constituents elected me to do.
I promised I would fight for our community every step of the way. Taking the court to court to preserve the discretion of this office is the only way I know to protect the will of the voters who elected me. This is how we weave the quilt of criminal justice reform: each locality using its voice to demand change and put its values into elected offices. Town by town, county by county, we must fight to shape the communities in which we want to live.