Governor Ralph Northam signed a bill on Wednesday requiring judges to dismiss cases when both prosecutors and defense attorneys agree. The bill was born after Norfolk Commonwealth’s Attorney Greg Underwood (D) announced that he would not be prosecuting misdemeanor marijuana cases, according to The Virginian-Pilot. The bill is an example of a national push to allow prosecutors discretion to ignore whole sections of law, according to Heritage Foundation Legal Fellow and former prosecutor Zack Smith.
Smith said prosecutorial discretion normally allows prosecutors to consider cases on an individual basis. “What a lot of this new wave of rogue prosecutors, like the Commonwealth’s Attorney in Fairfax, Arlington County now, just to name a few, […] what they’re doing is really something entirely different,” Smith said. “They’re just refusing to enforce laws they disagree with and in a lot of ways are really overstepping their bounds and usurping the role of the legislature with those types of practices.”
National Group Fair and Just Prosecution (FJP) recently announced a pledge by prosecutors and attorneys general who refuse to enforce anti-abortion laws. The group’s website states, “Fair and Just Prosecution (FJP) brings together newly elected local prosecutors as part of a network of leaders committed to promoting a justice system grounded in fairness, equity, compassion, and fiscal responsibility.”
Portsmouth Commonwealth’s Attorney Stephanie Morales recently announced the formation of the Virginia Progressive Prosecutors for Justice, expressing support for criminal reform laws and asking for “clarification of the discretion of the prosecutor.”
Smith said this isn’t a Democrat versus Republican issue, but that it’s a new philosophy of prosecution in reaction to a traditional law-and-order approach previously taken by both parties. “[These new prosecutors] tend to view the criminal justice system as systematically racist. They believe there’s a massive incarceration problem a lot of the time, and frankly they just disagree with some of the laws that the state legislatures have passed.”
“If someone believes there is a problem in the criminal justice system or if they believe that our current drug laws are unfair or unjust, those are questions for the state legislatures to answer,” Smith said. “It’s not a question for a prosecutor to basically refuse to do their job and appoint themselves to be a one person superlegislature that can basically negate a duly passed law.”
According to Smith, donors including George Soros, Cari Tuna, and Dustin Moskovitz have contributed to these prosecutors across the U.S. Smith said Soros funnels money through multiple PACs with names like Justice and Public Safety PAC (JPSP). Tuna and Moskovitz provide support through grants from the Open Philanthropy Project, according to Smith.
In 2019, the JPSP poured over $2 million into three commonwealth’s attorneys’ races in Fairfax County, Loudoun County, and Arlington County, according to The Virginia Public Access Project. Each of the candidates won — Buta Biberaj (D-Loudoun), Parisa Dehghani-Tafti (D-Arlington), Steve Descano (D-Fairfax).
Descano received $601,369 from the JPSP, raising a total $972,761. He defeated long-time Democratic incumbent Raymond Morrogh, who raised $240,696, according to The Virginia Public Access Project. That same year, the JPSP gave $621,145 to Dehghani-Tafti, according to The Virginia Public Access Project. She defeated Democratic incumbent Theo Stamos in the primary, according to Arlington Now.
JPSP gave Biberaj $861,039, which she used to defeat Republican M. Nicole Wittman, who raised $152,907, according to The Virginia Public Access Project. Both were running to replace a Republican prosecutor who was leaving the seat.
Smith said the same thing is playing out in major cities across the U.S. — Baltimore, St. Louis, Chicago, and others. Despite the huge infusions of cash, Smith said progressive prosecutors can be defeated.
“[Voters] have to be aware of the policies these candidates are supporting, because for the most part these are not stealth candidates,” Smith said. “They are telling voters what they are going to do when they get elected. It’s important for people who live in those districts to pay attention, to vote.”
“Some of these candidates have been defeated despite receiving very large contributions.” Smith listed candidates in Florida, Oregon, and California.
“It’s because voters were made aware of the radical proposals that were being pushed and paid attention to that, and they simply voted accordingly.”
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