Prosecutor pushes to maintain discretion on dropping charges

FALLS CHURCH, Va. — A northern Virginia prosecutor who says her county's judges are infringing on her discretion to dismiss charges and enter plea bargains is asking the state Supreme Court to intervene on her behalf.

Arlington County Commonwealth's Attorney Parisa Dehghani-Tafti filed a petition Friday asking the court for a relief from a policy imposed by the county's four Circuit Court judges.

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In March, two months after Dehghani-Tafti took office, the judges required prosecutors to file a written brief explaining themselves any time they decide to drop charges or enter a plea bargain.

Dehghani-Tafti was one among a cadre of prosecutors in northern Virginia and across the nation to win office on a reform agenda, promising not to prosecute lower-level drug offences.

She said that the order is not only time-consuming, but potentially damaging in cases where the reasons for dropping a case should remain private, like protecting a broader investigation or in cases of domestic violence where a victim declines to co-operate.

"It is not wise for us to be putting in all those details, and the court should know that," she said.

A call to judges’ chambers in Arlington County seeking comment was not immediately returned Friday. In an opinion last month, one of the judges, Daniel Fiore, provided insight into his thinking when he rejected an argument by prosecutors that they were entitled to dismiss marijuana possession charges because they saw enforcing that law as a poor use of judicial resources.

"(T)he decision by the executive branch to effectively nullify a statute passed by members of the Virginia Assembly, who were duly elected by the citizens, fails to constitute good cause" to dismiss charges, he wrote.

The issue is playing out nationally in different ways. In Maryland, Republican Gov. Larry Hogan has crossed swords with Baltimore prosecutor Marilyn Mosby after Hogan tried to divert more resources to the state attorney general's office to prosecute cases in the city.

And in Missouri, the legislature is considering a bill filed during an ongoing special session sought by the state's Republican governor that would give the state's attorney general overlapping jurisdiction to prosecute cases amid complaints that St. Louis Circuit Attorney Kimberly M. Gardner is too lenient in bringing charges.

Both Mosby and Gardner are among 60 current and former prosecutors who have signed on to a friend-of-the-court brief supporting Dehghani-Tafti's petition in Virginia.

Miriam Krinsky, executive director of Fair and Just Prosecution, the organization that submitted the friend-of-the-court brief, said that while judges have their own discretion to question on a case-by-case basis a prosecutor's motion to dismiss a particular case, she said that issuing a blanket policy requiring written justification for every decision is excessive.

"In the ‘80s and ’90s prosecutors used their discretion to ramp up mass incarceration, and judges never second-guessed or interfered with that," she said. "Now we have this sweeping order in all cases in Arlington County where an elected commonwealth's attorney is wanting to do exactly what voters elected her to do."

In Arlington, Dehghani-Tafti said that in previous years, 75 per cent of dismissed cases were handled on oral motions only, often taking only a minute or two.

She acknowledged that prosecutorial discretion cuts both ways, saying a rural prosecutor in a jurisdiction that has declared itself a Second Amendment sanctuary also enjoys the discretion to decline prosecution on firearms charges. She said, though, that her efforts to pass on low-level drug cases are distinguishable on policy grounds, because she is moving in the same direction as the legislature, and that her approach to drug prosecutions is evidence-based.

"Prosecutorial discretion has been around as long as prosecutors have been around," she said.

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