There’s something rotten in the county of Arlington, and it’s coming from the courthouse. First, the Arlington Circuit Court judges are ignoring higher courts rulings that the separation of powers between the Executive Branch and Judicial Branch leaves the decision whether to prosecute cases with the prosecutor, putting unprecedented obstacles in new Commonwealth’s Attorney Parisa Dehghani-Tafti’s way. And further, they are currently making bail and sentencing decisions that put the entire jail and corrections population at increased risk should COVID-19 strike in the jail.
Prosecutors routinely nolle prosequi (dismiss) charges for a variety of reasons, including there being insufficient evidence, defendants cooperating with the prosecution, and pursuing charges just not being in the public’s interest or a wise use of resources. In fact, the Virginia Court of Appeals has stated that the Judicial Branch should generally defer to the Executive Branch (the prosecutor), which, being “best judge of where the public interest lies…remains the absolute judge of whether a prosecution should be initiated and the first and presumptively the best judge of whether a pending prosecution should be terminated.”
Which is precisely how the Arlington Circuit Court judges behaved during the previous Commonwealth’s Attorney’s tenure. And yet, when Dehghani-Tafti began to seek to nolle prosequi cases, including but not limited to simple marijuana possession cases, these judges routinely questioned her reasons and judgement about what was in the public interest, and on March 4th wrote an order requiring prosecutors to file motions stating all the factual reasons any time they decide not to prosecute a case or to dismiss charges.
This is an egregious violation of the separation of powers, which several members of the Senate Judiciary Committee called “offensive,” and attempted to explicitly prohibit through legislative means:
And as if this weren’t enough of a problem, these same Circuit Court judges are now putting at risk the lives of those held in jail and the correctional staff, by turning down reasonable requests for release by inmates who are more susceptible to becoming very sick or dying from COVID-19. This includes a pregnant woman serving a nine-month sentence for a $250 grand larceny committed years ago, that would be a misdemeanor today; a man with AIDS facing two misdemeanor charges, who was denied bail after the judge asked him to “prove it,” which is somewhat hard while sitting in jail and reliant on the jail medical services; a high school kid with no prior record who pickpocketed someone on the Metro with no weapon and was denied bail; a homeless man with bipolar disorder who is in jail for probation violations on underlying petit larceny charges for stealing soda, snacks and hygiene products from a drug store. (Note that thanks to Virginia’s three strikes petit larceny bill, even though the total amount he’s ever stolen is less than $200, the last theft was charged as a felony. Legislation this year to change that rule was killed in the House Criminal Justice Subcommittee.) In each of these cases, and many others, the Commonwealth’s Attorney’s office is not preventing the release—it is entirely in the judge’s hands.
These are people who have no record of violence or endangering others in the community, who are either awaiting trial or who are serving sentences for minor crimes, sentences that could easily be reconsidered by the judge in order to get as many out of the jail as possible during this health crisis. Instead they are sitting in the petri dish of the jail—once the first infected inmate or corrections officer turns up, they’re all at risk, and the correctional staff as well. The Governor’s order forbids groups of ten people gathering together; there are around 500 people incarcerated at the Arlington Adult Detention Center. No one should receive a death sentence for stealing a few hundred dollars’ worth of goods.
In case you’re wondering what you can do about this situation, unfortunately it’s not all that much. Two of the Circuit Court judges (including one who’s been most actively denying release) just recently were re-appointed by the legislature to eight-year terms, and the others aren’t due for re-appointment for several years either. However, you should reach out to your legislators and make sure they’re aware of this situation, since they are the ones with the power to appoint judges.