What Does Virginia Law Say About Commonwealth’s Attorney Decisions Not to Prosecute Entire Classes of Laws?

Courtesy of wallpaper.com

by James C. Sherlock

I posed two questions in my last article.

  • Can a Commonwealth’s Attorney (CA) decide to decline prosecution of an entire class of misdemeanors?
  • If so, are there any constraints available in the law?

By law and precedent the answer to both questions is yes.

  1. A CA has discretion in prosecuting misdemeanors.
  2. A Circuit Court can require her to explain herself to the court as to how that discretion is used in each case.  That makes ignoring entire classes of misdemeanors very difficult.

I am not an attorney. I welcome the comments of attorneys whose practices intersect this matter, especially in Fairfax.

Discretion of the Commonwealth’s Attorney. The Commonwealth’s Attorney has the discretion to decline to bring charges in misdemeanor cases…

§ 15.2-1627. (Effective January 1, 2022) Duties of attorneys for the Commonwealth and their assistants gives him or her that right.

The follow-up question is whether a Commonwealth’s Attorney may decline to prosecute entire sections of the Virginia Criminal Code, or is he or she subject to a legal check on that power?  The Circuit Courts have a say in that.

Discretion of the Court.  § 19.2-265.3. Nolle prosequi; discretion of court upon good cause shown.

Nolle prosequi shall be entered only in the discretion of the court, upon motion of the Commonwealth with good cause therefor shown. [Bolding added]

An Arlington Case on conflict between the two discretions.

 In 2019, Arlington elected a Commonwealth’s Attorney, Parisa Dehghani-Tafti.

In 2019, Arlington and Falls Church voters elected Parisa Dehghani-Tafti, a prosecutor committed to reforming the criminal justice system, reducing incarceration, and ending wasteful prosecutions.

On March 4, 2020, the judges of the 17th Judicial Circuit in Arlington/Fairfax ordered

…all CA motions to:

  1. amend an indictment pretrial,
  2. enter a nolle prosequi or
  3. dismiss a case

shall be in writing; said motion shall provide in detail all factual and not purely conclusory bases in support thereof.

The order required that each motion be signed by counsel “to the best of counsel’s belief after reasonable inquiry and warranted by existing law.”

The order further required that “for continuity of established practices and consistent with 17th Cir. R[ules of] P[rocedure],” all sentencing guidelines and justifications for any recommendation for an upward or downward departure “shall be in writing and filed with the Clerk of Court,” no later than the day before the scheduled hearing.

At that point, Ms. Dehghani-Tafti filed a petition in the Supreme Court of Virginia.  In Re: Parisa Dehghani-Tafti, Petitioner asked the court to stop the judges of the 17th Circuit Court from demanding written nolle prosequi and case dismissal justification.

From an amicus brief supporting the petition:

CA Dehghani-Tafti campaigned on a pledge to change the types of cases to which her office would devote its limited resources….

Despite the order’s procedural focus, there are good reasons for concern that the rationale underlying the order stems from a judicial attempt to oversee the prosecutor’s decision-making, and in effect intervene, to prevent the Commonwealth’s Attorney from making independent decisions that the court does not agree with. That is antithetical to the role of a judge.

The order sets a dangerous precedent that would strip elected prosecutors of the autonomy to make decisions around the safety and well-being of their local community and would, by extension, erode the rights of local voters to have a say in that vision.

On the 18th day of December, 2020, the Virginia Supreme Court considered her plea and the amicus brief and ruled.  She lost.

The Fairfax County Circuit Court thus has similar authority.  I do not know what that court has done or will do, if anything, regarding Mr. Descano’s decisions.

Mandamus.  A colleague inquired whether a writ of mandamus can be issued against a CA.

In common law,

A (writ of) mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.

See § 17.1-309. for a Virginia law on mandamus.

The Supreme Court shall have jurisdiction to issue writs of mandamus and prohibition to the circuit and district courts, the Court of Appeals, and to the State Corporation Commission and in all other cases in which such writs, respectively, would lie according to the principles of the common law. [Bolding added]

Mandamus was sought and denied against a circuit court by In Re: Parisa Dehghani-Tafti, Petitioner.

 I do not know whether, under Virginia law, a writ of mandamus may be issued against a Commonwealth’s Attorney.

I welcome the comments of attorneys on all of this.

Updated Jan 30 at 6:36 AM

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12 responses to “What Does Virginia Law Say About Commonwealth’s Attorney Decisions Not to Prosecute Entire Classes of Laws?”

  1. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    Judges in lower courts are authorized to issue writs of mandamus in numerous situations. Here are two examples: https://law.lis.virginia.gov/vacode/title2.2/chapter38/section2.2-3809/; https://law.lis.virginia.gov/vacode/title22.1/chapter8/section22.1-97/

    It now has been established that Virginia law gives Commonwealth’s attorneys discretion as to whether they will appear in district courts to handle misdemeanor cases. In addition to the Fairfax County prosecutor exercising this discretion, Commonwealth’s attorneys in other jurisdictions have also exercised this discretion from time to time.

    As for the suit that Daghani-Tafti brought against the Arlington judges, the Supreme Court opinion did not deal with the substance of the matter. It ruled that the relief she was seeking, called a “prohibition”, was applicable only in cases involving the jurisdiction of a court. That was not the situation in Arlington and therefore the court denied her petition.

    She was foolish to confront the judges so publicly. It was a case of the judges reacting to her very vocal declarations and criticisms of the system. In my very limited experience, it is much better to try to sit down with the judges and try to come to some sort of accommodation. In Virginia, it is accepted that judges have pretty much absolute control over the proceedings in their courtrooms.

    I could not find any reference to what has transpired after the Supreme Court decision. Things seem quiet on that front. It would be interesting to know if the judges are still requiring written motions for every request to nol pros.

    As for your allusions to prosecutors ” declin[ing] to prosecute entire sections of the Virginia Criminal Code” and “decid[ing] to avoid prosecuting an entire class of crimes,” that is a red herring. Except for misdemeanors, for which they statutory authority, the prosecutors you are targeting have not declared they will not prosecute “an entire class of crimes.” If you have any proof or anything concrete to back up your charges, you should present it.

    1. James C. Sherlock Avatar
      James C. Sherlock

      “Petitioner has not identified a specific matter in which the circuit court has exceeded its jurisdictional boundaries, and, therefore, prohibition does not lie.”

      That can be read to mean that the court had not exceeded its jurisdiction in issuing the order. That was the effect and appears to be what the CA took it to mean.

    2. Stephen Haner Avatar
      Stephen Haner

      Once upon a time I often attended GD court, in my reporter days. If the defendant didn’t have counsel, and the deputy CA and the police put on their evidence, it was pretty one sided. But now we may be facing the opposite problem, with the defendant having some fancy talking counsel and the police officer standing there with no legal advisor or advocate. Already is the case in traffic court, and if you take a lawyer to traffic court, your chances really soar.

      So how about if the CA is not prosecuting, no defense lawyer allowed? Well, no, we can’t do that. And that’s the point that is being missed here. The real winner here are the defense bar, and they may be the one’s behind this. Cynical? Realist.

      1. James C. Sherlock Avatar
        James C. Sherlock

        I read John Kassabian’s website differently. https://disq.us/url?url=https%3A%2F%2Fwww.kassabianlawyers.com%2Fcase-not-being-prosecuted-by-the-commonwealths-attorney-you-could-still-be-convicted%3A_vSVBrQVeT9-3DT68YjM2s1VZLk&cuid=6632217

        I interpreted it to mean that he was losing business to Descano’s nol pros decisions, and was reminding potential clients that cops could show up in court to prosecute. You may be correct, though.

      2. James C. Sherlock Avatar
        James C. Sherlock

        I read John Kassabian’s website differently. https://disq.us/url?url=https%3A%2F%2Fwww.kassabianlawyers.com%2Fcase-not-being-prosecuted-by-the-commonwealths-attorney-you-could-still-be-convicted%3A_vSVBrQVeT9-3DT68YjM2s1VZLk&cuid=6632217

        I interpreted it to mean that he was losing business to Descano’s nol pros decisions, and was reminding potential clients that cops could show up in court to prosecute. You may be correct, though.

    3. James C. Sherlock Avatar
      James C. Sherlock

      I have presented it Dick. Please read again. I consider it concrete.

      I cannot understand why you continue to argue that Descano and the other progressive CAs are not doing what they proudly and publicly proclaim they are doing.

      In his campaign Descano pledged that he was not going to charge possession of marijuana. https://static1.squarespace.com/static/5b08d8fd85ede1b5cc3e7d9c/t/5d8b5b91def8834a61161e22/1569414039552/ProgressiveJustice-SteveDescano.pdf

      At the link below lawyer John Kassabian has written that Descano extended that pledge to the other crimes I listed in my last article.

      That is the evidence, but I have provided it already in previous articles.


      “Over the last year or so, the Office of the Commonwealth’s Attorney for Fairfax County has clearly laid out the types of criminal offenses that will and will not be prosecuted by their office. Shortly after the election in 2019, the new administration of the Fairfax County Commonwealth’s Attorney Office said they would no longer prosecute marijuana possession cases. To date, the office will not prosecute cases involving assault and battery, prostitution, shoplifting, resisting arrest, reckless driving, possession of certain drugs (III, IV, V, or VI) as well as possession with intent to distribute certain drugs, animal cruelty cases in addition to many other misdemeanor offenses and traffic related cases, to include Class 1 Misdemeanor Reckless Driving, Hit and Run, Eluding, Driving on Suspended Operators License, No Valid Operator’s License, Speeding violations and many accident related offenses, to name just a few types of charges the Office of the Commonwealth’s Attorney will not be personally involved with.”

      1. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        I have never denied that Descano and others are doing are what they campaigned on. They campaigned on and later announced that they were not going to prosecute misdemeanors in general district court. You acknowledge that the Code gives them discretion to adopt this policy. I have pointed out that prosecutors in other parts of the state have adopted the same policy.

        Would you rather that they had not followed up on their campaign promises? Or, perhaps, just adopted that policy quietly without announcing it?

        As for the specific charge of marijuana possession, which you highlighted, Don Caldwell, the very conservative Commonwealth’s attorney for RoanokeCity stopped prosecuting marijuana possession cases five or six years
        ago. Yet , I don’t him being pilloried in your writing.

        I don’t deny that you have presented the evidence related to misdemeanors, although you went on to imply that the issue was bigger.

        For example, you cited Dehghani-Tafti’s s suit against the Arlington County judges. She had moved to nol pros a minor drug case and the judges had announced that her office would have to submit a written brief for any nol pros request. She was protesting the lack of courtesy that judges had traditionally shown to former CAs and, in fact, the unprecedented order that they issued. It was foolish for her to get into a fight with the judges in her circuit, but she was not attempting to nol pros an entire class of crimes. (It seems that you took these phrases out of your original article.)

        Finally, you go on to suggest that a writ of mandamus may be issued against a CA. We have established that they have discretion in regard to misdemeanors, so no writ of mandamus could lie there. The only other area could be in the prosecution of felonies. To suggest the possibility, you must have some idea of the need for such a writ. Where is the evidence for the possibility of such a need?

        1. James C. Sherlock Avatar
          James C. Sherlock

          “Would you rather that they had not followed up on their campaign promises?” Straw man. Never suggested anything of the sort. I suggested that the legal system protect itself. Campaign promises don’t trump the Virginia criminal code.

          This series is about Descano. I don’t believe I ever mentioned in any column, much less highlighted, marijuana possession. The only reason Dehghani-Tafti’s name was even brought up is that she requested a writ against the Circuit Court to stop them from requiring non pros in writing. And lost.

          Did I mention the pleading got her gushing national press coverage? But that could not have factored into the decision.

          So lets say she did it because she was upset. Your assessment is correct. That was not smart. It is the only circuit court she has. With a bad case, she now has created precedent that CA Descano may come to lament.

          As far as “suggesting that mandamus may be issued against a CA”, my exact words were “I don’t know”. I added that part, as I wrote, because a colleague of ours asked the question in an earlier post. I still don’t know.

  2. Nancy Naive Avatar
    Nancy Naive

    Was a time when you could not critize a judge in public. It was a contempt of court charge. Judge Hitchens, Norfolk’s Traffic Court judge hauled someone in for an OpEd in the VP and fined them back in the 60s or 70s.

    Ah, the law… ah, the good ol’ days.

    1. John Harvie Avatar
      John Harvie

      He was/is an original… Got plenty of press and it was often somewhat humorous to boot.

      1. Nancy Naive Avatar
        Nancy Naive

        His most famous, infamous was his usual “Heard it all, but if you can come up with an excuse I’ve never heard, I’ll dimiss the fine.”

        He gave me my driver’s license. Back in those days, you received a notice to show up in court when your first license was isuued. You had to listen to an hour of cases and then he handed you your license in a quasi-ceremony.

  3. I don’t understand why a Commonwealth’s Attorney would have a problem explaining why he/she has decided not to prosecute a case.

    And I don’t understand why anyone who favors transparency in government would have problem with them being required to do so.

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