Norfolk prosecutor appealing to Virginia Supreme Court after circuit judges denied effort to dismiss marijuana cases on appeal

In this post a few weeks ago, I report on an interesting tussle over low-level marijuana prosecutions in Norfolk, Virginia under the post title "Can judges, legally or functionally, actually refuse to allow a prosecutor to drop or dismiss charges as an exercise of discretion?".  What gives this story a bit of a "man-bites-dog" quality is the fact that a local prosecutor is seeking to dismiss a bunch of marijuana possession cases, but the local judges are refusing to do so.  Consequently, we get this week's fighting news under the headline "Norfolk's top prosecutor says he's taking fight over pot cases to state Supreme Court":

The city’s chief prosecutor said he will ask the state Supreme Court to force local judges into dismissing misdemeanor marijuana cases, effectively de-criminalizing the drug in Norfolk.  Commonwealth’s Attorney Greg Underwood on Friday sent a letter to the chief judge of the city’s highest court [available here], letting him and the seven other Circuit Court judges know that Underwood would appeal their collective decision to deny motions prosecutors have made over the past two months to abandon those cases.

Two months ago, Underwood announced he would undertake several efforts to achieve what he called criminal justice reform, including no longer prosecuting misdemeanor marijuana appeals.  But since then, at least four judges have denied prosecutors’ requests to dismiss marijuana charges. The tug-of-war 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.

Both Underwood and the judges believe the other side is violating the state constitution’s division of powers, which mandates that “[t]he legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others.”

Several, including Judge Mary Jane Hall, have said they believe the Norfolk commonwealth’s attorney is trespassing on the state legislature’s territory: making laws.  In turn, Underwood said the judges are preventing him from 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....

Prosecuting people for having marijuana disproportionately hurts black people and does little to protect public safety, Underwood has said.  In 2016 and 2017, more than 1,560 people in Norfolk were charged with first- or second-offense marijuana possession, prosecutor Ramin Fatehi said during a hearing last month. 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.”

The judge, Hall, admitted Fatehi made an “extremely compelling case” with his statistics on racial disparities, but said he 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.”

Until there’s a resolution, Underwood said in his letter, prosecutors will not handle misdemeanor marijuana appeals when simple possession is the only charge. Instead, the arresting officers will testify against the defendant without the guidance of a prosecutor — akin to the way traffic cases are heard.  This is a common practice in the lower District Court and something the Circuit Court judges have suggested. But circumventing the commonwealth’s attorney’s role in the long term would keep marijuana possession cases alive in Norfolk, thwarting Underwood’s criminal justice reform.

Prior related post:

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