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Last year, Norfolk’s top prosecutor said his office would seek to dismiss virtually all misdemeanor marijuana cases as part of an effort toward criminal justice reform.
But Circuit Court judges wouldn’t let them, and Commonwealth’s Attorney Greg Underwood challenged them in the state Supreme Court.
Underwood lost, with justices saying Virginia had given judges the final say on dismissing charges for over two centuries. Portsmouth judges were more receptive to a similar plan, dismissing most marijuana cases when prosecutors asked — but they also signaled they would consider requests “case by case” and not be a rubber stamp.
Because of a new law, though, that authority will now be firmly in the hands of the prosecutors.
Gov. Ralph Northam on Wednesday signed legislation that will require judges to dismiss a charge if both the prosecution and defense agree.
Legislators who introduced the bills said they were drafted in response to the Norfolk marijuana cases and similar ones in Northern Virginia, although the law applies to charges beyond that.
It wasn’t immediately clear how the new law will impact marijuana cases going forward in Norfolk. Amanda Howie, spokeswoman for Underwood’s office, said prosecutors will need to review the legislation before making any decisions on how to proceed.
The new law also allows judges to defer their findings in cases — meaning they can postpone a final decision and reduce or dismiss a charge later if the person meets certain terms — if both sides agree to it.
Del. Mike Mullin, chief patron of the bill in the House, said this aspect of the law will help people struggling with addiction and mental illness: “Throwing somebody in jail and locking them up and throwing away the key just isn’t good enough. We’ve criminalized mental health crises and addiction for too long here in Virginia."
Sen. Scott Surovell, chief patron of the Senate bill, said it will restore the concept of rehabilitation, mercy and second chances.
“It’s using the carrot versus the stick, and that’s something that’s been missing in our criminal justice system,” said Surovell, D-Fairfax.
In January 2019, Underwood announced he would no longer prosecute misdemeanor marijuana possession cases appealed from the lower court, saying the charges disproportionately hurt Black people.
In 2016 and 2017, 81 percent of people charged with first- or second-offense marijuana possession in Norfolk were Black, prosecutor Ramin Fatehi said at a hearing last year. Norfolk is 47 percent white, 42 percent Black.
Judges typically grant prosecutors' requests to drop or dismiss charges, but Norfolk Circuit Court judges blocked prosecutors from doing so in the misdemeanor marijuana cases.
“That’s, in my mind, not acceptable,” said Mullin, D-Newport News. “You have unelected judges substituting their decision-making for a prosecutor who’s answerable directly to the people.”
[ Previous coverage: Norfolk judges unite to block prosecutor from dropping marijuana cases ]
At the time, Circuit Judge Mary Jane Hall said she and the other seven judges thought the commonwealth’s attorney was attempting to “usurp the power of the state legislature.”
Since March of last year, Norfolk’s prosecutors have not handled misdemeanor marijuana appeals, leaving them instead to the arresting police officers, similar to the way traffic and certain misdemeanor cases are handled in the lower court.
Portsmouth Commonwealth’s Attorney Stephanie Morales also said last year that her office would no longer prosecute misdemeanor marijuana possession cases, although she and Public Defender Brenda Spry approached the city’s judges about it first.
Portsmouth’s General District judges later issued a statement saying they would review prosecutors' requests to dismiss charges on a case-by-case basis. Under the new law, they will be required to dismiss the cases if prosecutors ask for that.
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The legislation was supported by the Virginia Progressive Prosecutors for Justice, of which Morales is part.
“This change in our law will result in a true expansion of the ability of attorneys for the Commonwealth and counsel for those accused of crimes to collaborate in examining each matter together and unifying to take appropriate action when necessary, in the best interest of all parties,” Morales said in a written statement Wednesday.
During a Senate discussion of the bill earlier this month, Sen. Mark Obenshain, R-Rockingham, said he did not think prosecutors should have discretion to dismiss charges because they don’t agree with or like a law. If the laws are bad, he argued, the General Assembly should repeal them instead of creating what he called “super-legislators” in the state’s commonwealth’s attorneys.
“If a law is improvident or should be repealed, it ought to be repealed here, not through the independent action of one commonwealth’s attorney in a jurisdiction in Virginia,” said Obenshain, who voted against the legislation.
Surovell noted prosecutors are independently elected by the people. If residents don’t like what their prosecutor is doing, they can vote that person out. There are numerous statutes prosecutors already choose not to prosecute even though they’re still on the books, such as adultery or speeding 1 to 10 mph over the speed limit, he said.
“The reason we elect them locally is to exercise their discretion about their local values, their local priorities and what’s important in their jurisdictions,” Surovell said.
Margaret Matray, 757-222-5216, margaret.matray@pilotonline.com