The Prosecutorial Chronicles, Jan. 2020: New Officials Take First Steps, Halt Pot Charges

Two Virginia prosecutors stop charging marijuana possession—mostly. Newly-elected DAs are sworn in as well in California, New York, and Pennsylvania.

The Appeal: Political Report regularly tracks the practices, reforms, and policies of prosecutors nationwide. Explore the latest developments with our interactive tracker. 

Parisa Dehghani-Tafti and Steve Descano, the new prosecutors of Virginia’s Arlington and Fairfax counties, announced in early January that they will stop prosecuting adults for marijuana possession.

They are the latest in a series of prosecutors who have adopted such a policy, at least up to a set quantity of marijuana, over the last year. That includes Baltimore, Indianapolis, and Louisville, as well as Portsmouth, further south in Virginia.

Dehghani-Tafti and Descano, who are both Democrats, campaigned on this reform during their victorious challenges to incumbent prosecutors in 2019. In fact, both explained why they would not prosecute marijuana possession in Q&As with the Political Report in February and April. 

Both have kept up a public case for reform since taking over as prosecutor.

In a Washington Post op-ed, Descano wrote that not prosecuting pot possession will boost public safety. “Such prosecutions can spur crime,” he said. “These convictions result in individuals having a criminal record that can never be expunged,” and which “sentences [them] to a life of grossly decreased opportunities.” He also touted his policy as improving racial justice. A 2017 report documented the degree to which pot possession has disproportionately ensnared African Americans in Fairfax County — a pattern that holds around the country.

Dehghani-Tafti also argued that criminalizing marijuana is harmful in a Twitter thread in which she called for the state to legalize it. 

“On a human level, coming into contact with the criminal justice system can be enormously and sometimes permanently disruptive of an individual’s personal and family life,” she wrote. “Prosecutors err toward criminalization because we tend to define our job as prosecuting crimes. That’s not our real job. Our real job is public safety.” 

Andy Elders, deputy public defender in Fairfax County, commends the reforms in Fairfax. “We appreciate [Descano’s] efforts on that front, particularly in the face of opposition from some judges and some police officers,” he told me this week. “Thus far, I’m not aware of them prosecuting any simple possession cases.” 

Still, questions remain about the scope of these policies, and about which marijuana possession cases, if any, prosecutors may still choose to file. 

Both prosecutors have said their offices will review each case and may still file charges when cases present “aggravating circumstances” or when they rise above “simple possession.” Descano’s office told WUSA9 that “the amount of marijuana” would be a factor used to decide whether a case constitutes “simple possession,” and that this determination would be up to staff prosecutors.

Neither commonwealth’s attorney answered requests for comment on what specific criteria will shape these determinations, and also how they will ensure that individualized reviews are made equitably rather than reproduce the racial disparities of the counties’ past enforcement practices.

Another question is whether, and how, minors will remain criminalized. As rolled out, the policies only apply to adults. Neither prosecutor answered questions on how they will treat minors arrested for marijuana possession. 

Immediate obstacles to reform, meanwhile, are other actors with power in the criminal legal system, notably police officers and judges.

Police officers may continue to arrest people for marijuana possession. In Virginia, police can directly file marijuana cases. When they do, prosecutors can request that the case be dismissed, but the Virginia Supreme Court ruled last year that judges are authorized to deny this. On the day Descano first rolled out his policy, one judge initially resisted a request to dismiss a marijuana case, but later agreed to drop all six cases that were in front of his court.

“Achieving racial equity on marijuana issues is not merely a matter of who gets prosecuted — it’s also about who gets pulled over, who gets searched, and who gets brought into court,” Elders said. “Decriminalization alone does nothing to protect people’s right to be left alone by the police. The next step would be for the Fairfax County Board of Supervisors to direct the Fairfax County Police to stop pulling over and searching vehicles on suspicion of marijuana possession.”

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Other candidates who won in November are also taking office this month.

San Francisco: We should reject the idea that “jails and prisons should be the primary response to all our social problems,” Chesa Boudin said during his inauguration as DA on Jan. 8. He also reiterated commitments he made during the campaign, including stopping the filing of three-strike enhancements. Then, within a week, he rolled out a new pretrial diversion program, under which some people who are the parents or primary caregivers of a child will be eligible for alternatives to incarceration. “This policy will keep children united with their parents and work to end the generational cycle of incarceration,” he tweeted. 

Boudin’s initiative implements a new law (Senate Bill 394), which California adopted in October and which authorizes each county to set up such a program. But this creation requires the agreement and cooperation of the local DA, and Boudin’s embrace contrasts with the resistance of other state prosecutors like Los Angeles’s Jackie Lacey. 

Delaware County, Pennsylvania: Incoming DA Jack Stollsteimer promptly dropped the shoplifting charges his predecessor had filed against David Sheppard, a man whose life sentence was commuted by Governor Tom Wolf. I explained this showdown, which unfolded against the backdrop of efforts to grow clemency in Pennsylvania, in December‘s prosecutorial chronicles. (See also: Democratic Lieutenant Governor John Fetterman wrote a powerful op-ed denouncing the parole board for rejecting the parole petitions of people serving life terms. “We are failing to honor the Board of Pardons mission of mercy, redemption,” Fetterman wrote.)

Queens: In the nation’s largest jurisdiction with a new DA, Melinda Katz took office on Jan. 7. She pledged to reform the office in the course of her tight campaign last year against Tiffany Cabán, a public defender who ran on a decarceral platform.

Katz created a conviction integrity unit that will review claims of wrongful convictions. Queens was the only New York City borough to lack such a unit. She appointed Bryce Benjet, an attorney with the Innocence Project, to head the unit. In addition, Katz changed plea bargaining practices, ending her predecessor’s requirement that people waive their rights to a grand jury in order to be enter plea discussions, and also ending restrictions on allowing defendants to plead to anything but the top count of indictment.

Aaron Morrison reported in The Appeal last week, though, that prosecutors were still requesting cash bail despite Katz’s promise to eliminate such recommendations. Katz reiterated this promise in her inauguration speech, but said she was not yet ready to fully implement it.