« "On probation until 2053? Sentencing disparities, lack of guidelines get long look at Minnesota Legislature" | Main | "Paul Manafort should not be sentenced to 20 years in prison" »

February 17, 2019

Can judges, legally or functionally, actually refuse to allow a prosecutor to drop or dismiss charges as an exercise of discretion?

The question in the title of this post is prompted by an interesting on-going story out of Norfolk, Virginia which I have blogged about over here at my marijuana blog.  This recent local article reports on these particulars:

The judges on the city’s top court have decided to block Norfolk’s chief prosecutor from essentially decriminalizing marijuana possession, a setback he’s thinking about appealing to the state Supreme Court.

On Tuesday, prosecutors under Commonwealth’s Attorney Greg Underwood went to court for at least the third time to try to drop or dismiss misdemeanor marijuana charges. Prosecuting people for having marijuana disproportionately hurts black people and does little to protect public safety, he’s said.

For the third time, a judge rebuffed them, and told prosecutors she’s not alone, but joined by her seven colleagues. “We are of one mind on this,” Circuit Judge Mary Jane Hall said.

The decisions adds to the confusion about whether it’s OK to have a small amount of weed in the city. Norfolk police have said they will continue to cite people for misdemeanor marijuana possession as they’ve always done. Circuit Court judges appear determined to make sure offenders are tried, even if the commonwealth’s attorney refuses to prosecute them....

Underwood’s change on marijuana possession is part of his larger effort to bring what he calls criminal justice reform to Norfolk. In a Jan. 3 letter to judges, the police chief and other public safety officials, he announced he would support ending cash bail in many cases and seeking more equal sentences between prostitutes and their clients.

In 2016 and 2017, more than 1,560 people have been charged with first- or second-offense marijuana possession, prosecutor Ramin Fatehi told the judge in court Tuesday. Of them, 81 percent were black in a city that’s 47 percent white and 42 percent black. This “breeds a reluctance on the part of African Americans, particular young African American men, to trust or cooperate with the justice system,” according to a Commonwealth’s Attorney’s Office memo announcing the policy changes. “Such prosecution also encourages the perception that the justice system is not focusing its attention on the legitimately dangerous crimes that regrettably are concentrated in these same communities.”

On Tuesday, Hall denied Fatehi’s motion to dismiss charges against Zemont Vaughan. The 24-year-old Norfolk man, who is black, had been convicted in a lower court in October, but on Tuesday, he went to the higher Circuit Court to appeal that conviction.

Prosecutors’ motions to dismiss or drop charges are typically formalities. They don’t generally like giving up on cases, so when they make what amounts to an admission of defeat, judges almost always grant them. Not this time.

Hall told Fatehi she and the other seven judges think the Norfolk commonwealth’s attorney is trespassing on the state legislature’s territory: making laws. The judge said Fatehi made an “extremely compelling case” with his statistics on racial disparities, but should pitch it to lawmakers in Richmond. “I believe this is an attempt to usurp the power of the state legislature,” Hall said. “This is a decision that must be made by the General Assembly, not by the commonwealth’s attorney’s office.”

Fatehi countered: Underwood is exercising the executive power voters gave him when they elected him the city’s top prosecutor. Part of the job is prosecutorial discretion, or deciding which laws should be enforced, especially since he has a limited amount of resources. In contrast to the misdemeanor possession charges, Underwood’s lawyers will keep prosecuting people accused of trafficking or dealing marijuana. “This is an exercise of our discretion,” Fatehi said.

Fatehi said Underwood is thinking about asking the state Supreme Court to reverse the judges’ decisions, adding that he’s “very close” to making a decision.

It seems like an indisputable given that a judge cannot legally make a prosecutor bring a charge.  But once a charge has been brought, and perhaps especially once a conviction has been obtained, I can envision plausible bases for wanting to preserve some formal judicial authority to refuse to allow charges to be dropped or dismissed in some extreme circumstance.  For example, refusing dismissal could seem justified if a judge had a reasonable basis to believe that the prosecutor had been bribed to dismiss certain charges or if a judge concluded that dismissals were driven by some kind of unconstitutional motive.  The judges here are arguably asserting that these dismissals are constitutionally suspect, but that seems like a stretch on these facts. (Indeed, I wonder if Commonwealth’s Attorney Underwood might try to defend his dismissals by saying he is worried about constitutional infirmities concerning who gets arrested and charged by police for marijuana offenses.  Surely a prosecutor must have broad authority to seek dismissal of charges that he believes may be infected with constitutional problems.)

Whatever one thinks of the legal basis for judges refusing dismissals here, I also wonder how this will continue to play out practically.  Will judges in this jurisdiction seek to appoint another prosecutor to pursue charges that the local prosecutor seeks dismissed?  Do they have authority to do so and is there any other way for these cases to proceed absent such an appointment? If and when these cases are on appeal, might the defendants seek amicus support from Commonwealth’s Attorney Greg Underwood or at least a formal statement from him saying he believes the cases should no longer proceed?

February 17, 2019 at 08:37 PM | Permalink

Comments

For what it's worth, in Louisiana the answer is no: "The district attorney has the power, in his discretion, to dismiss an indictment or a count in an indictment, and in order to exercise that power it is not necessary that he obtain consent of the court." La. C.Cr. P. art. 691.

Posted by: MBC | Feb 18, 2019 12:11:14 AM

Thanks, MBC, very interesting. But would this apply also to a conviction --- e.g., could a DA seek dismissal while case is on appeal without needing court help to vacate conviction?

Posted by: Doug B | Feb 18, 2019 11:54:26 AM

There is a finality concern. When the judgement has become final then I agree that the prosecution cannot dismiss the charges. The process has done its work, the proper recourse thereafter is clemency. But prior to a final judgement to me it is a no brainer that charges can be dismissed because that is the essence of the separation of powers. I am huge fan of legislative power vs the executive but judges are wrong. The executive serves as a check on the power of the judiciary just as much as the legislative does. If it didn't the American legal system would all of a sudden look a lot more French.

Posted by: Daniel | Feb 18, 2019 5:03:37 PM

Sounds to me like what often happens in VA, NC, etc. when conservatives there lose any culture war. They find a way to illegally usurp power.

Posted by: Rory Fleming | Feb 18, 2019 6:51:48 PM

In Missouri, the answer is currently pretty clear that the local prosecutor has unfettered discretion to decline to file charges or to dismiss charges prior to verdict. (There are some bills pending that would allow police to refer cases to state attorney general if local prosecutor declines charges.) Once sentence is imposed, however, appeals are handled by the state attorney general. There are some post-sentencing motions in which the prosecutor could consent to relief being granted, but the trial court would still have to grant that relief and could decline to do so if defense motion and evidence supporting it was insufficient.

Posted by: tmm | Feb 20, 2019 1:09:22 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB