by Emilio Jaksetic
Fairfax County Commonwealth Legal professional Steve T. Descano has invoked his prosecutorial discretion to subject a number of “prison justice reforms.” (Copies can be found here.) As a part of these reforms, Descano refuses:
(1) to prosecute any individual for easy possession of marijuana;
(2) to prosecute any individual for felony larceny for any quantity lower than $1,500 despite the fact that the statutory threshold is $1,000;
(3) to pursue any probation violation based mostly on a conviction for possession of marijuana; and
(4) to request money bail beneath any circumstance (even when protection counsel requests money bail).
By implementing the cited insurance policies, Descano has violated the Virginia Structure. To achieve this conclusion, it’s crucial to think about: (1) the boundaries of prosecutorial discretion; (2) particular provisions of the Virginia Structure that constrain all Virginia officers, together with Commonwealth Attorneys; and (3) how Descano’s implementation of sure insurance policies runs afoul of the Virginia Structure.
Prosecutorial discretion is broad, however it’s not absolute, limitless, or unfettered in nature. Prosecutorial discretion can’t be utilized in a way that’s unconstitutional, or utilized in a vindictive method to punish an individual for exercising their authorized rights. See, e,g., Barrett v. Commonwealth, 585 S.E.2nd 355, 362-363 (Virginia Court docket of Appeals, August 26, 2003). And, like all different Virginia officers, Descano took an oath of workplace to assist the Virginia Structure (Virginia Structure, Article II, Part 7).
The Virginia Structure requires the separation of legislative, judicial, and government powers, and no official can train the powers constitutionally granted to a different department of presidency (Virginia Structure, Article I, Part 5). Moreover, no Virginia official can droop the operation of Virginia regulation with out the consent of the Basic Meeting (Virginia Structure, Article I, Part 7). As Commonwealth Legal professional, Descano is sure by these constitutional limitations, and he can’t invoke prosecutorial discretion to have interaction in actions that ignore, circumvent, or infringe these constitutional limitations.
The Virginia Supreme Court docket choice in Howell v. McAuliffe, 788 S.E.2nd 706 (July 22, 2016) illustrates how the train of broad discretionary government authority is constrained by the Virginia Structure. In that case, the Virginia Supreme Court docket reviewed a problem to Governor McAuliffe’s train of his constitutional clemency authority beneath Virginia Structure, Article V, Part 12. At subject was the lawfulness of Governor McAuliffe issuing government orders granting blanket removing of political disabilities to greater than 200,000 convicted felons with out an individualized, case-by-case dedication for every convicted felon.
The Virginia Supreme Court docket concluded that Governor McAuliffe’s assertion that he had absolute energy to subject his government orders restoring political rights to convicted felons “runs afoul” of Article I, Part 7 of the Virginia Structure, which states “That every one energy of suspending legal guidelines, or the execution of legal guidelines, by any authority, with out consent of the representatives of the individuals, is injurious to their rights, and ought to not be exercised.” (788 S.E.2nd at 720). The Virginia Supreme Court docket additionally concluded that the Governor’s constitutional “responsibility to take care that the legal guidelines be faithfully executed” (Virginia Structure, Article V, Part 7) prevents the Governor from setting apart usually relevant legal guidelines the Governor disagrees with, together with any disagreement the Governor might need with the voter disqualification provision of Virginia Structure, Article II, Part 1. (788 S.E.2nd at 722). Additionally, the Virginia Supreme Court docket acknowledged the Governor “can use his clemency powers to mitigate a basic rule of regulation on a case-by case foundation,” however concluded that the Governor can’t “successfully rewrite the final rule of regulation and substitute it with a categorical exception.” (788 S.E.2nd at 723).
A Commonwealth Legal professional can’t invoke prosecutorial discretion to justify actions which have the identical unconstitutional defects recognized by the Virginia Supreme Court docket in Howell v. McAuliffe. The 4 reforms promulgated by Descano cited earlier on this article endure from the identical sorts of constitutional defects — particularly, Descano:
(1) exercised prosecutorial discretion in a way that has the sensible impact of suspending the operation of provisions of Virginia regulation;
(2) took motion that’s inconsistent along with his “responsibility to take care that the legal guidelines be faithfully executed”; and
(3) abused prosecutorial discretion to “successfully rewrite the final rule of regulation and substitute it with a categorical exception” as an alternative of constructing case-by-case determinations.
Moreover, in assist of the cited “prison justice reforms,” Descano expresses his disagreement with present statutes, and units forth numerous coverage arguments that may be acceptable as suggestions to the Basic Meeting for revising the Virginia Code. However Descano can’t unilaterally implement insurance policies that violate the constitutional separation of powers by infringing on the constitutional authority of the Basic Meeting to enact legal guidelines.
For all the explanations given above, Descano’s implementation of the cited insurance policies violates the Virginia Structure.
Emilio Jaksetic, a retired lawyer, is a Republican in Fairfax County.
