by DJ Rippert
This landing may get bumpy. In late 2018 a chap was on a plane that landed at Reagan National Airport. He undoubtedly had the usual tools of travel — toothbrush, shave kit and clean socks. However, he also had 50 pounds of marijuana and 400 cartridges of hashish oil. Perhaps he got on the wrong plane expecting to land in Denver. The MWAA Police met him at baggage claim, offered to help him with his luggage and cuffed him up.
As arlnow.com reports, “Commonwealth’s Attorney Parisa Dehghani-Tafti and the attorney representing the alleged drug carrier agreed that the defendant would plead guilty to two felony charges and be placed on probation. After completing the probation and 200 hours of community service, he would be able to withdraw the pleas to the felony charges and instead plead guilty to two misdemeanor charges while having a $100 fine imposed but then suspended.”
Here comes the judge. Arlington County Circuit Court Judge Daniel Fiore was not amused by the plea deal. He rejected it. “Virginia jurisprudence has long and consistently recognized deterrence as means for a court to determine an appropriate sentence, no matter the criminal statute violated,” Fiore wrote. “Deterrence disincentives unlawful behavior both for the individual and for society.” Judge Fiore felt that the amount of hootch was understated and that the transgressions should merit between five and 40 years in the slammer along with a cool $500k in fines. Looking on the bright side, the suspect would sidestep the 200 hours of community service under the Judge’s thinking.
Mule skinner blues. How could a clear crime merit a penalty ranging from probation and community service to 40 years in prison? It turns out the suspect in question wasn’t smuggling drugs, he was just reenacting Clint Eastwood’s character in the 2018 film, The Mule. Ok, not really. The suspect was a drug smuggler. But he was also a mule. Maybe. Probably. At least that’s what Public Defender Brad Haywood thinks. “They are under duress; fearful for their safety, desperate for money, or desperate to feed their own addictions,” he said. “They are easy to manipulate precisely because they are suffering. They can even be pressured into doing something as irrational as traveling on a plane with tons of narcotics.” After admitting that he didn’t know whether the suspect was cooperating to target higher ups, Haywood opined that something like that could also be happening. Or not. “I have no idea if that is or isn’t going on here,” he said. “You would not know about it, the court might not know, nor would it be appropriate for anyone to know if a defendant had been enlisted to cooperate.”
Scott free. This is not the first time that Virginia prosecutors have decided that they don’t particularly like the laws passed by the General Assembly. In 2019 Norfolk’s top prosecutor said he would, ” … dismiss virtually all misdemeanor marijuana cases as part of an effort toward criminal justice reform.” Circuit Court judges said “no” and the Norfolk prosecutor appealed to the state supreme court. The supremes also said, “no,” citing 200 years of precedent giving judges, not prosecutors, the final say-so on plea deals. “Balderdash” said occasional Rebellion reader Sen. Scott Surovell. At least that’s what I imagine he said. He was the Senate patron of a bill that would require a judge to dismiss a charge if both prosecution and defense agree. Del. Mike Mullin was the chief patron in the House. The bill passed and was signed by Gov Northam. “It’s using the carrot versus the stick, and that’s something that’s been missing in our criminal justice system,” said Surovell.
Rip’s Wrap. As long time readers of this blog know, I am strongly in support of legalized adult recreational use of marijuana in Virginia. But this is not about that. It’s about whether a prosecutor should be able to ignore laws passed by the General Assembly. In Virginia, both prosecutors and General Assembly members are elected. And prosecutors routinely refuse to enforce some Virginia laws like the statutes against adultery. But what about consistency? If the hapless smuggler described earlier in this article bought a ticket into Richmond International Airport or Norfolk — would he be facing 40 years instead of probation and community service? How is that fair or just? As for prosecutors being apolitical — fugetaboutit! There’s a group called the Virginia Progressive Prosecutors for Justice. They mince no words as to what laws they’d like to see passed and what laws repealed. Do they now constitute a local veto on the General Assembly?
What was wrong with the idea of a check and balance on a plea deal? The prosecutor and defense attorney agree on a deal and the judge decides whether or not to accept it?
Anyway, I’m hoping for a Commonwealth’s Attorney to run for office in Fairfax County with a promise that he or she will not enforce Virginia’s income tax laws. That would be a campaign I could support.