Virginia’s Primaries Could Overhaul Prosecution, and Three States Reform Their Drug Laws

Illinois is legalizing marijuana, while Colorado and Oklahoma confront drug possession.

Virginia’s Primaries Could Overhaul Prosecution, and Three States Reform Their Drug Laws

Illinois is legalizing marijuana, while Colorado and Oklahoma confront drug possession.

In This Edition of the Political Report

June 6, 2019:

  • Virginia: Tuesday’s elections could overhaul prosecution in Northern Virginia

  • Colorado, Illinois, and Oklahoma: Three states reform their drug laws

  • The politics of prosecutors: Quick hits from California, Florida, Louisiana, and Maine

As always, we invite you to visit our interactive map of legislative developments on criminal justice reform here.

Virginia: Tuesday’s elections could overhaul prosecution in Northern Virginia

The nationwide push to overhaul prosecutorial practices has reached Virginia, which hosts three elections for commonwealth’s attorney on Tuesday. These elections are all Democratic primaries in populous Northern Virginia counties, and the results of each could substantially transform local approaches to prosecution.

Prince William Democrats are set to nominate their first candidate in half a century who is not Paul Ebert, a retiring prosecutor with a predilection for the death penalty. But the widest contrasts lie elsewhere. Theo Stamos, the commonwealth’s attorney of Arlington County and Falls Church, faces Parisa Dehghani-Tafti, a former public defender is now legal director of the mid-Atlantic Innocence Project. Ray Morrogh, the commonwealth’s attorney of Fairfax County and Fairfax City, faces Steve Descano, a former federal prosecutor.

Arlington and Fairfax counties

The two challengers are confronting the state’s criminal legal system as something that needs systemic reforms that prosecutors can take on, beyond changing how they assess individual cases.

Dehghani-Tafti told me that her work as a defense attorney meant dealing with single cases as they came along—“plucking the babies out of the river,” she said—but that her candidacy was a way of “walking upstream” to “see who is throwing them in” and address the problem head-on. She said in her campaign announcement that she was running “to dismantle the mass incarceration machine.” Descano similarly told me in an interview that “if you were to have a prosecutor who was committed to making a dent in mass incarceration and ending mass incarceration, it would be within their powers” to do so, for instance by “changing the way that you charge crimes.”

Both challengers cast themselves as part of a broader movement to overhaul statewide practices.  Descano talked of creating “a coalition” to “act as a counterpoint” to the Virginia Association of Commonwealth’s Attorneys (VACA). VACA is the group that lobbies on behalf of Virginia prosecutors, typically for more punitive policies; last year, for instance, VACA opposed a bill to decriminalize marijuana possession. Similarly, Dehghani-Tafti told me that she hoped “to be elected with a wave of other reform prosecutors;” she said of VACA that “right now, they don’t speak for me.”  

Incumbents Morrogh and Stamos, by contrast, have served in VACA’s leadership. Both tout their interest in criminal justice reform, even as they have fought efforts to overhaul the legal system. In 2016, for instance, they signed on to a lawsuit against Governor Terry McAuliffe’s executive order restoring the voting rights of Virginians who have completed their sentences.

Morrogh testified in Congress in 2014 that the Obama administration’s proposed sentencing reforms would “roll the dice with the safety of America’s communities.” His campaign did not respond to a request for comment about his view on the fairness of sentencing in Virginia.

Stamos told me that “Arlington does not engage in mass incarceration” when I asked her if she thought Virginia’s incarceration rate was too high. In an event held in May 2018, she similarly said “mass incarceration” was “a term that is used to deligitimize what we do because there isn’t a prosecutor in this country that engages in mass incarceration.” Prosecutors “don’t round up people in a mass way,” she explained, but instead treat people as individuals.

But prosecutors enjoy wide discretion to handle individual cases in a more- or less-punitive manner. The Appeal reported this week on her office’s history of aggressive charging practices, which have resulted in children being detained over low-level offenses.

A pattern of individual cases can also accumulate into an unequal system. Stamos touted the decrease in the jail population, and it is true that Arlington’s per capita incarceration rate is lower than the statewide average, according to the Vera Institute of Justice’s database. But, for Black people, this rate is higher than the statewide average. African Americans make up 9 percent of Arlington’s population but approximately 60 percent of people who are convicted of marijuana possession, trespass, or larceny, according to an analysis by the state Supreme Court. Stamos told The Appeal that this disparity is due to people “coming into our community and committing offenses” from elsewhere. “Arlingtonians are very law-abiding, as it turns out,” she said. “It’s other folks coming from other areas of the region.”

The candidates’ differing attitudes toward systemic reform plays out on concrete issues. The full version of this article contrasts their positions on a range of issues; both challengers have notably said they would not file marijuana charges and would not seek the death penalty.

Prince William County

A commonwealth’s attorney since 1968, Paul Ebert has made Prince William County a national epicenter for the death penalty. The Washington Post wrote last year that Ebert has obtained more capital sentences than “any other prosecutor in Virginia.” He replied that “very few” people “qualify for” the death penalty, but “for some reason, Prince William seems to get people who qualify.”

This explanation obscures commonwealth’s attorneys’ discretion. He should know. His tenure has been marred by complaints of excessive or inappropriate behavior, including a case Radley Balko of the Post dubbed “one of the more brazen examples of prosecutor misconduct in recent memory.”  

Ebert, a Democrat, is retiring this year after 51 years in office, and two Democrats are running to replace him in next week’s primary. Amy Ashworth is a former prosecutor who now works as a private attorney, and Tracey Lenox is a criminal defense attorney who is running with Ebert’s endorsement. (The winner faces Mike May, a former county supervisor, who has already secured the GOP nomination.)

In separate interviews, both candidates highlighted changes they’d make to his office, though neither endorsed some of Descano or Dehghani-Tafti’s bolder positions. Both said they wanted to restrict the use of the death penalty, but neither ruled out seeking it.  

Both talked of de-emphasizing prosecution and incarceration over low-level charges. Lenox told me she would seek to “divert and dismiss” most “nonvictim misdemeanor charges” like marijuana possession and driving with a suspended license. Ashworth mentioned the two same examples to explain that “it is not smart to focus on prosecuting victimless crimes,” though she repeatedly specified that she was talking of first-time offenses as to the scope of cases to divert. Also, Ashworth and Lenox both spoke against declination policies, including for marijuana. Ashworth argued that a blanket policy would violate her oath of office; Lenox expressed concern that it could generate a backlash against reform among other stakeholders. “Diversion is the easier project, because then you can give the judges something to hang their hat on,” Lenox said.

A more straightforward difference emerged when I asked how they would each change the legal system’s approach to offenses involving violence. Both invoked Virginia’s non-mandatory sentencing guidelines in their response, but to contrary effects. Lenox questioned the guidelines’ neutrality, arguing that they reflect “norms” inherited from a time where “high incarceration was the solution to things”; she said she wants to create opportunities for below-guideline sentences. By contrast, Ashworth declined to assess the guidelines’ fairness. She emphasized the value of using them as a constraint in order to be consistent and reduce sentencing disparities.

A full, standalone version of this story is available here.

Colorado, Illinois, and Oklahoma: Three states reform their drug laws

Pushback against the “war on drugs” has long been central to criminal justice reform efforts, and in May three states overhauled their drug laws to pursue less punitive models.

1) Illinois is legalizing marijuana.

Illinois is set to legalize the possession and sale of marijuana. The bill passed the legislature last week, and the state’s governor has said he will sign it.

The bill faced a test beyond legalization: to confront the racially disproportionate harm that the prohibition of marijuana has caused. In legalizing pot, other states have often failed to clear past convictions, and the industry is primarily benefiting white investors. How does this change fare?

First, it sets up a streamlined pardon process to expunge existing convictions, which will relieve thousands from the lifelong implications of past prosecutions. Individuals will not need to initiate a request as long their offense involved less than 30 grams of marijuana. Relief will entail an individualized review process, however. The original legislation proposed a more automatic process, and it did not specify that 30-gram threshold, but it was amended after the state’s attorneys association demanded a greater role for prosecutors in determining eligibility.

Second, the bill allocates some of the revenue generated by legalization to programs meant to reverse the “systematic disinvestment of the same communities where folks with criminal records are concentrated,” as Sharone Mitchell Jr., deputy director of the Illinois Justice Project, put it. “The 25 percent share of the tax revenue reserved for violence prevention, re-entry services and social determinants of health” are a “game changer when it comes to violence reduction,” Mitchell told me. He credited the work of the Illinois Black Caucus.

Third, it boosts the licensing applications submitted by residents of a “disproportionately impacted area” and of people with past convictions. Fourth, it provides financial assistance for people who want to enter the marijuana industry and who have been directly impacted by its prohibition; nevertheless, opening a dispensary will still entail a very high startup cost.

2) Colorado reclassifies drug possession charges and shrinks penalties.

Colorado is lowering drug possession to the misdemeanor level. This new law, effective in 2020, reclassifies possession of nearly all Schedule I and Schedule II substances, including heroin and fentanyl.

This significantly reduces penalties associated with possessing these drugs. It shortens sentences and shifts people from prison to county jails. Drug possession currently carries a prison sentence and a subsequent parole period, but this change provides a sentence of up to 180 days in jail and a probation period.

The Senate limited the original bill’s scope, however, when it added a weight limit of 4 grams over which possession remains a felony. The law also contains other exceptions. It never applies to cathinones, flunitrazepam, ketamine, gamma hydroxybutyrate (GHB). Possession of other substances will also be a felony beyond a third offense. In addition, the law is not retroactive.

Five states have already reduced drug possession into a misdemeanor, all since 2014, according to a 2018 report published by the Urban Institute: Alaska, California, Connecticut, Oklahoma, Utah. The report found that none of these states’ reforms specified a weight limit.

Brian Elderbroom, a scholar at the Urban Institute who co-wrote the 2018 report with Julia Durnan, called Colorado’s bill a “critical first step.” He added, though, that it does not meet the standard of the five reforms assessed in his report. It “builds on reclassification efforts in other states by also limiting incarceration in local jails and investing in treatment programs,” he told me, but “lawmakers left plenty on the table when they amended the bill to retain the felony classification in certain cases.”

3) Oklahoma had already ‘defelonized’ drug possession. Now that is retroactive.

Drug possession is already a misdemeanor in Oklahoma. Voters reclassified it in a 2016 ballot initiative, State Question 780, that passed by a large margin; it also reclassified theft of under $1,000. But SQ 780 was not retroactive; people already convicted got no relief.

This just changed. House Bill 1269, signed into law in May, makes SQ 780 retroactive. It instructs the state to identify and resentence people now in prison for felony drug possession. (People convicted of other offenses in addition to drug possession, and people convicted of theft, will need to file a commutation petition to be considered.) Up to 800 people who are serving simple possession charges will be eligible for release, The Oklahoman reports.

The law also makes already-released individuals eligible for expungement. Up to 60,000 people could qualify for this form of relief, according to Kris Steele, the executive director of Oklahomans for Criminal Justice Reform, a coalition that supported the change. Steele is also the state’s former Republican speaker. “When an individual can remove that scarlet letter, it opens up a myriad employment opportunities and new housing opportunities, it allows that individual to move forward in a very positive manner,” Steele told me.

But Steele also expressed concerns about the way lawmakers set up the expungement system. For one, the reform requires individuals who are eligible to file an application rather than shift that burden on the state. Steele said that although the reform provides a simplified application, people may still perceive the process as too burdensome. “Many individuals who are involved in the justice system may be skeptical of applying because it is additional involvement with a system that has been punitive,” he said.

A full, standalone version of this article is available here.

The politics of prosecutors: Quick hits from California, Florida, Louisiana, and Maine

California: A new state law empowers district attorney to reopen past cases and seek a reduced sentence. San Francisco DA George Gascón has proposed creating a Sentencing Review Unit to conduct this work, but Mayor London Breed’s proposed budget does not provide funding for this unit.

Florida: Aramis Ayala, the state attorney of Orange and Osceola counties, announced last week that she would not seek re-election in 2020. Ayala tied her decision to her struggle with statewide politicians over the death penalty. When she vowed to not seek the death penalty, Governor Rick Scott reassigned cases to other prosecutors and the state Supreme Court upheld Scott’s move.

Louisiana: Leon Cannizzaro, the DA of Orleans Parish (New Orleans), is the subject of an Intercept investigation on how his office is undermining defendants’ right to counsel, and of an Appeal investigation on the harmful effects of his office’s handling of jailhouse informants. Cannizzaro is known for harsh prosecutorial practices, and last month, he announced he would pursue a more punitive approach toward minors.

Maine: Natasha Irving, the DA of four coastal counties, announced that she was expanding the use of preconviction diversion and of restorative justice programs, the Bangor Daily News reports.

Thanks for reading. We’ll see you next week!

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