Virginia’s primaries on Tuesday saw Ramin Fatehi clinch the Democratic nomination for Commonwealth Attorney in Norfolk, the site of a major showdown over reform in 2019. He is unchallenged in November.
When the chief prosecutors of Norfolk and Portsmouth, Virginia, decided to stop prosecuting marijuana possession in early 2019, Portsmouth’s local judges largely went along with that policy. But in Norfolk, judges resisted prosecutors’ motions to dismiss marijuana cases filed by police officers. At the time, Ramin Fatehi, who worked in the Norfolk prosecutor’s office, made the case in local courtrooms that arrests are disproportionately harming Black residents. After a protracted fight, the Virginia Supreme Court ended up siding with the lower court judges who were intent on keeping these marijuana cases going.
Much has changed in Virginia over the last two years. A big wave of reform-minded candidates won prosecutor elections in November 2019, and they soon joined forces with Norfolk Commonwealth’s Attorney Greg Underwood and Portsmouth Commonwealth’s Attorney Stephanie Morales to create the Virginia Progressive Prosecutors for Justice (VPPJ). The coalition has lobbied the state legislature to abolish the death penalty and legalize marijuana (those passed) and to repeal mandatory minimums (that didn’t), among other measures.
Soon the VPPJ will have Fatehi as a new member who has vowed to grow the group’s clout and to press for more criminal justice reforms in the legislature.
Fatehi easily won a Democratic primary on Tuesday to be Norfolk’s commonwealth’s attorney. He received more than 60 percent of the vote against two candidates. In this staunchly Democratic city, he is virtually certain to win the general election and replace Underwood, who did not seek re-election. No Republican or independent candidates are running in the general election.
Before the primary, The Appeal: Political Report asked Fatehi about his platform, how he wants to reduce incarceration, and what he thinks the VPPJ brings to the table.
“Traditionally, Virginia prosecutors have been in favor of greater punishment,” he said, and they have lobbied for rules that “feed mass incarceration.” Where the reform-minded prosecutors in the VPPJ differ, he says, is in recognizing that crime is “a symptom of structural racism, of systematic community disinvestment, of redlining, unequal school policy, the lack of jobs, lack of transportation, a lack of opportunities, intergenerational barriers to wealth building, the disinvestment in the treatment of the mentally ill.”
Fatehi wants to see the Virginia legislature go further in upcoming sessions to end mandatory-minimum sentencing, reinstate a discretionary parole system, and enable people with felony convictions to vote, including those who are in prison. Even without changes to the law, he signaled he would use his prosecutorial discretion to implement some of these policies, including treating drug possession as a misdemeanor.
But he stopped short of drawing the sort of lines in the sand that other reformers have campaigned on, like promises to not seek life without parole sentences or to adopt blanket policies of declining to prosecute some categories of cases—the very strategy that put Norfolk in the news when Fatehi defended the policy of declining marijuana cases.
Many of the commonwealth’s attorneys who are in the VPPJ are not up for re-election until 2023. But 24 independent cities besides Norfolk are holding elections for prosecutors this year.
This Q&A with Fatehi has been condensed and lightly edited for clarity.
Criminal justice reformers have enjoyed a lot of momentum in Virginia. This has included wins in prosecutorial elections and the creation of the Virginia Progressive Prosecutors for Justice, the first organization of its kind in the country. You yourself have vowed to join the VPPJ. How would you characterize the shifts in Virginia’s prosecutorial landscape in recent years? And what role do you think prosecutors should be filling to advance more change?
Traditionally, Virginia prosecutors have been in favor of greater punishment, greater mandatory minimums—a tightening of every single ratchet available within the criminal system. And then they would turn around and say we’re simply servants of law, when they were consistently lobbying the Virginia General Assembly for laws or rules that increase prosecutorial power and feed mass incarceration.
The Virginia Progressive Prosecutors for Justice was important. It was able to alter the balance of power in the Virginia Association of Commonwealth Attorneys. And it can affirmatively lobby for criminal justice reform bills, things like the abolition of mandatory minimums. We have been there to give credibility to progressive legislators, and to affirm that these things are not only not contrary to public safety, but that they enhance public safety.
The common thread that binds together those prosecutors is the acknowledgement that the old system of mass incarceration is ineffective, that structural racism is real and not a myth, that minorities are treated differently in the system, and that we as prosecutors have enough power to bring justice to our communities by altering, in data-driven ways, the old ways that have increased crime or had no effect on crime.
Can you say more about these “old ways,” and what you think they get wrong about what is conducive to safety?
The old-fashioned view about public safety was not taking into account externalities. It was focused on the idea of crime as an evil unto itself. Where I part ways is in recognizing that crime is a symptom. It’s a symptom of structural racism, of systematic community disinvestment, of redlining, unequal school policy, the lack of jobs, lack of transportation, a lack of opportunities, intergenerational barriers to wealth building, the disinvestment in the treatment of the mentally ill—all of these things are really what produced the symptoms, but then we as prosecutors are charged with essentially trying to deal with it, and then are blamed also when they perhaps increase or decrease.
I think where those of us who are in the progressive movement diverge, is that we recognize that these externalities exist. It’s incredibly expensive, imprisoning people, jailing them, supervising them. We are disinvesting from our own community. We’re pulling human capital and dollars away from things like mental health treatment, drug treatment, education, housing contracts, and so on.
Some advocates in Virginia say that if there’s going to be an effective transformation of the state’s criminal legal system, prosecutors will have to make room for other groups in these conversations and take steps to diminish their own authority. Amy Woolard of Legal Aid Justice Center told me: “A true shift in the profession, whether from VACA or the new progressive prosecutor group, means that prosecutors will not only have to accept but advocate for a diminution of their own power.” What do you make of that goal?
I think that we’ve demonstrated that we’re prepared to work with stakeholders. We’ve worked with Legal Aid Justice Center, we’ve worked with Justice Forward Virginia, and we acknowledge that we don’t have a monopoly on good ideas. But what is unique about us is that, since there is this idea that we are the top law enforcement officer, when we stand up with Legal Aid Justice Center, Justice Forward Virginia, or other groups, some people see it as having a seal of approval from the police. It is an acknowledgment that people who traditionally were guardians of the status quo are coming up and affirming that this will protect the community, an acknowledgement from a group that is perceived to be part of the system. And that gives assurance to the people who are voting for it that it is not going to harm public safety.
You were involved in the current prosecutor’s office policy of dismissing marijuana charges. As chief prosecutor, are there other categories of cases that you would decline prosecuting?
I can’t think of a crime that jumps out at me at the moment that I would feel is so obvious. Marijuana was a very easy one, even as controversial as it was, because there really was absolutely no public safety explanation for why marijuana was even illegal. The cases that I would have a strong presumption against prosecuting would be cases that are criminalization of poverty: public vagrancy, public urination, public defecation; cases where people are unhoused, people are mentally ill. The Norfolk city jail is the largest mental hospital in Hampton Roads, and it should not be.
But—and this is why I said strong presumption, but not a blanket—there are instances where the conviction may not be necessary but the charge may be necessary as a temporary placeholder until we can bail the person so we can set the person up with supportive housing, whereas a blanket policy would bar our ability to try and figure out what the next step was.
On your last point, though, the case that many reform advocates make is that the criminal legal system staying involved in those issues will detract from other sorts of investments.
I don’t want to be involved in these issues. The criminal system should not be a substitute for a public health system, for a mental health system, for a war on homelessness. These are things that should not be our purview. We as progressive prosecutors have to be shouting from the rooftops that the General Assembly has to give us the tools, that we should not have to deal with those things.
Regarding drug possession, beyond marijuana, some prosecutors have announced they are not going to prosecute any low-level drug possession, somewhat similar to Norfolk’s marijuana policy. Oregon also recently voted to decriminalize drug possession. How would you approach other drugs?
Substance use disorder is not in itself and should not in itself be treated as criminal behavior. It requires a public health response. I think the fact that Oregon by ballot initiative has decriminalized possession of all drugs is going to be proof of concept for the rest of the United States that a true public health framework is in fact going to aid public safety, is going to save people money, is going to make fewer people convicted criminals, and it’s going to make fewer victims of all sorts—true victims measured in the criminal system and collateral victims.
In my capacity as the deputy in charge of the drug team, I’ve implemented a new policy of a presumptive reduction to a misdemeanor, and a presumptive assumption that the person should not be on supervision. Some of it is a recognition that, empirically speaking, the threat of incarceration is a statistical non-factor in helping people get clean. They get clean at the same rate if they’re under the threat of imprisonment as if they are not. But we’re spending money, giving people criminal records, felonizing them, depriving them of the right to vote, and separating them from the community.
So, you’re discussing not wanting to give people a criminal conviction in the form of a felony. But what’s the case then for continuing to prosecute it at the level of misdemeanor? Even with diversionary options on the table, prosecution can lead to conviction and harsh consequences.
There needs to be at least some inducement for a change in behavior that will reduce that person’s contact with the criminal system. I want the Community Services Board involved, I want treatment programs, I want all these things. But I’m not sure as a prosecutor what to do if we have people regularly coming back and coming back and coming back. So there could be a presumption in favor of dismissal, but what do you do with people who just simply cannot stay off of the radar of law enforcement? So how do we address that problem? With blanket dismissals, then, another problem is also a wasting of police resources, where they’re arresting the same person as the revolving door arrest, dismissal, arrest, dismissal, arrest, dismissal. And at that point, it’s robbing the police department of the resources necessary.
You supported abolishing the death penalty in Virginia. Why was this an important reform?
It dehumanizes us, we become lesser human beings when we kill, essentially in anger, and premeditated anger. And this is not to minimize the really heinous crimes that people commit. It does not change the fact that we should not kill people. In the end, the fact that these people have killed in some of the most heinous and disgusting ways possible doesn’t mean that we get to become killers ourselves.
Reformers are also organizing against “death by incarceration,” and the propensity of the criminal legal system to hand down life sentences. Virginia, in fact, has had no discretionary parole for decades, with some exceptions, and there’ve been proposals to bring back a parole system. Do you support these proposals?
We need to bring back true discretionary, individually based, individually assessed parole. As prosecutors, we have to err on the side of safety and recommend the sentence that assumes that somebody is not going to reform. Discretionary parole needs to be there to prove us wrong; it also needs to be there to offer hope to people who otherwise would be hopeless. We need a system that is truly individualized and adequately funded to review the 30,000 people who sit in DOC, and we need an ability for input from the various stakeholders, including prosecutors.
Thinking about people in their early to mid-20s, we know that neurologically they’re not fully adult. There has to be an opportunity for that person when they are 40, 50, 60, even younger, maybe older, to show that they are not the same person.
Until the state legislature changes the law, would you change the practices of the prosecutor’s office to reduce the frequency or propensity at which you might seek a life sentence?
Absolutely. I will be a personal gatekeeper. With 40 prosecutors, it is manageable to keep track of life sentences, and to ensure that we are not seeking them reflexively. Those cases also are going to be cases that either me personally, or my chief deputy are going to have to keep track of and be careful about, and we are going to need to have an individualized assessment.
I’m not gonna rule out seeking a life sentence without parole. One reason is because, outside of capital murder, there is a provision for geriatric parole, so nobody is guaranteed to die in prison on a life sentence in Virginia. The second reason is that, especially with the abolition of the death penalty, there does need to be a question of what we do with the absolute worst of the absolute worst, where, realistically speaking, there is no possibility of rehabilitation. There are rare and exceptional cases where imprisoning somebody effectively for the rest of their lives is the only answer to protecting the public good. It’s not something that we should do anything close to routinely. It should be exceedingly rare, and when we do it, we should be very clear in our explanation about why we felt that there were no alternatives.
Another major debate in Virginia this year has been whether to repeal mandatory minimums and to what extent. Do you think there should be any mandatory minimum sentencing?
I think we should repeal all mandatory minimums. Mandatory minimums tie the hands not just of judges, not just the juries, not just the defendants, also of prosecutors. There are instances where we can charge around a mandatory minimum, and a lot of instances we cannot. And sometimes prosecutors who really are going out of their way to do it are required to resort to legal fictions, which at that point puts them in a position where judges can reject what they’re trying to do. So this ties everybody’s hands. Doing away with mandatory minimums is not going to harm public safety. All it is going to do is to ensure the judges, prosecutors, and all of the other stakeholders are able to fashion a sentence that’s based on the facts of the case.
There were varying constitutional amendments debated this year that would either shrink felony disenfranchisement or abolish it altogether, including when people are in prison. Do you think people should lose the right to vote when they are convicted of a felony, and if so for how long?
Nobody should be stripped of the right to vote. Maine and Vermont have this right. We need to follow the Maine and Vermont model. Virginia has a long, dark history of voter disenfranchisement. Proponents of disenfranchisement in the 1902 Constitution, explicitly and with the use of racial slurs, said that felon disenfranchisement was designed to destroy the voting power of African Americans. And it destroys the political voice of anybody who’s come into contact with the criminal justice system and has been convicted of a felony. That simply is wrong. Our end goal for the vast majority of people who are in prison is for them to move beyond whatever they have done and be a truly returning citizen. That also means that we have a moral obligation to treat them as returning citizens. When we tell somebody that they are not entitled to have a voice in choosing their government, we are telling them that they are outcasts, that they are not part of the society. To the extent that people who are in prison are cut off from their support systems, it’s psychologically dangerous to public safety.