Descano’s Unconstitutional Actions

Steve Descano. Photo credit: WTOP

by Emilio Jaksetic

Fairfax County Commonwealth Attorney Steve T. Descano has invoked his prosecutorial discretion to issue several “criminal justice reforms.” (Copies are available here.) As part of these reforms, Descano refuses:

(1) to prosecute any person for simple possession of marijuana;

(2) to prosecute any person for felony larceny for any amount less than $1,500 even though the statutory threshold is $1,000;

(3) to pursue any probation violation based on a conviction for possession of marijuana; and

(4) to request cash bail under any circumstance (even if defense counsel requests cash bail).

By implementing the cited policies, Descano has violated the Virginia Constitution. To reach this conclusion, it is necessary to consider: (1) the limits of prosecutorial discretion; (2) specific provisions of the Virginia Constitution that constrain all Virginia officials, including Commonwealth Attorneys; and (3) how Descano’s implementation of certain policies runs afoul of the Virginia Constitution.

Prosecutorial discretion is broad, but it is not absolute, unlimited, or unfettered in nature. Prosecutorial discretion cannot be used in a manner that is unconstitutional, or used in a vindictive manner to punish a person for exercising their legal rights. See, e,g., Barrett v. Commonwealth, 585 S.E.2d 355, 362-363 (Virginia Court of Appeals, August 26, 2003). And, like all other Virginia officials, Descano took an oath of office to support the Virginia Constitution (Virginia Constitution, Article II, Section 7).

The Virginia Constitution requires the separation of legislative, judicial, and executive powers, and no official can exercise the powers constitutionally granted to another branch of government (Virginia Constitution, Article I, Section 5). Furthermore, no Virginia official can suspend the operation of Virginia law without the consent of the General Assembly (Virginia Constitution, Article I, Section 7). As Commonwealth Attorney, Descano is bound by those constitutional limitations, and he cannot invoke prosecutorial discretion to engage in actions that ignore, circumvent, or infringe those constitutional limitations.

The Virginia Supreme Court decision in Howell v. McAuliffe, 788 S.E.2d 706 (July 22, 2016) illustrates how the exercise of broad discretionary executive authority is constrained by the Virginia Constitution. In that case, the Virginia Supreme Court reviewed a challenge to Governor McAuliffe’s exercise of his constitutional clemency authority under Virginia Constitution, Article V, Section 12. At issue was the lawfulness of Governor McAuliffe issuing executive orders granting blanket removal of political disabilities to more than 200,000 convicted felons without an individualized, case-by-case determination for each convicted felon.

The Virginia Supreme Court concluded that Governor McAuliffe’s assertion that he had absolute power to issue his executive orders restoring political rights to convicted felons “runs afoul” of Article I, Section 7 of the Virginia Constitution, which states “That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.” (788 S.E.2d at 720). The Virginia Supreme Court also concluded that the Governor’s constitutional “duty to take care that the laws be faithfully executed” (Virginia Constitution, Article V, Section 7) prevents the Governor from setting aside generally applicable laws the Governor disagrees with, including any disagreement the Governor might have with the voter disqualification provision of Virginia Constitution, Article II, Section 1. (788 S.E.2d at 722). Also, the Virginia Supreme Court acknowledged the Governor “can use his clemency powers to mitigate a general rule of law on a case-by case basis,” but concluded that the Governor cannot “effectively rewrite the general rule of law and replace it with a categorical exception.” (788 S.E.2d at 723).

A Commonwealth Attorney cannot invoke prosecutorial discretion to justify actions that have the same unconstitutional defects identified by the Virginia Supreme Court in Howell v. McAuliffe. The four reforms promulgated by Descano cited earlier in this article suffer from the same kinds of constitutional defects — specifically, Descano:

(1) exercised prosecutorial discretion in a manner that has the practical effect of suspending the operation of provisions of Virginia law;

(2) took action that is inconsistent with his “duty to take care that the laws be faithfully executed”; and

(3) abused prosecutorial discretion to “effectively rewrite the general rule of law and replace it with a categorical exception” instead of making case-by-case determinations.

Furthermore, in support of the cited “criminal justice reforms,” Descano expresses his disagreement with existing statutes, and sets forth various policy arguments that would be appropriate as recommendations to the General Assembly for revising the Virginia Code. But Descano cannot unilaterally implement policies that violate the constitutional separation of powers by infringing on the constitutional authority of the General Assembly to enact laws.

For all the reasons given above, Descano’s implementation of the cited policies violates the Virginia Constitution.

Emilio Jaksetic, a retired lawyer, is a Republican in Fairfax County.