Voters in the South will elect dozens of local prosecutors this November. But the proceedings are overshadowed by Southern state governments’ escalating maneuvers to undercut the will of voters in prosecutor races—fueled in part by Republican anger against some prosecutors’ policies of not enforcing low-level charges and new abortion bans. 

Mississippi this year removed predominantly white sections of Hinds County, the majority-Black county that’s home to Jackson, from the control of its Black district attorney. Georgia reacted similarly to recent wins by DAs of color: It cut off a white county from a circuit that had elected a Black prosecutor, and also set up a new state agency with the power to fire DAs. Last week, Florida Republican Governor Ron DeSantis suspended Orlando’s elected Democratic prosecutor, citing disagreements with her office’s approach to prosecution, one year after he similarly replaced Tampa’s Democratic prosecutor with a member of the Federalist Society. 

These rapidfire events are exacerbating the question of what it even means to run for office when your win could be undermined so easily, or when your winning platform might be turned into a reason to remove you from office. 

Still, the electoral cycle churns on. There will be 123 local prosecutor races across  Kentucky, Mississippi, and Virginia—the only three Southern states voting on this office in 2023.

The lion’s share is in Virginia, a state that may soon experience its own version of this dynamic. Republican officials have wanted to crack down on reform prosecutors but have not been able to push their proposals through so far; they may try again in 2024 if they gain the legislature. In the meantime, these policy debates are playing out in a more usual place—the electoral arena.

In three populous Virginia counties, Republican candidates are defying three Democratic prosecutors who joined calls to reform Virginia’s criminal laws while their party briefly ran the state in 2021 and 2022. In making the case that crime should be prosecuted more aggressively, these challengers are mirroring candidates who already ran—and lost—against other reform prosecutors in the June Democratic primaries. 

Mississippi also features challenges to three Democratic prosecutors who have, to varying degrees, implemented some priorities of criminal justice reformers, such as expanding alternatives to incarceration or vowing to not prosecute abortion cases. Their opponents have indicated that they wish to reel back some of these efforts.

Kentucky has less to track this year: While there’s a strikingly large number of special elections, nearly all feature an unopposed incumbent. And Mississippi and Virginia have many uncontested races as well. Across the 123 elections in these three Southern states, only 24 will feature more than one candidate on November’s ballot. 

Below is Bolts’ guide to the 2023 prosecutor elections in Kentucky, Mississippi, and Virginia.

Two other states are electing prosecutors this year (many more will in 2024). Check out Bolts’ earlier previews of races in New York and Pennsylvania.  

Kentucky 

The state wasn’t meant to select any of its commonwealth’s attorneys in 2023 but the two most populous counties each scheduled special elections due to unexpected vacancies. In the meantime, Democratic Governor Andy Beshear appointed prosecutors in each, Gerina Whethers in Jefferson County (Louisville), and Kimberly Baird in Fayette County (Lexington). 

Whethers and Baird are now running to stay in their new offices and no one challenged them, ensuring they’ll easily win their first encounters with voters.

Appointed incumbents similarly face no challengers in four other circuits. Overall, this situation applies to counties that cover 1.5 million residents—roughly one third of the state’s population.

Only in Henderson County, a more sparsely populated county, is there a contested special election. It features two self-described conservatives: Democrat Herb McKee, who was chosen by Beshear to take over as commonwealth’s attorney when the longtime incumbent resigned last fall, faces Republican James “Bobby” Norris, an assistant prosecutor in his office. 

All Kentucky counties are hosting regular elections next year.

Mississippi

DA Doug Evans retired in June, after spending decades subjecting a Black man named Curtis Flowers to six trials for the same crime, earning a rebuke from the Supreme Court, and facing mounting evidence that he targeted prospective Black jurors. Voters chose his successor in last week’s primary, and it’ll be Adam Hopper, Evans’ assistant who took over in court in the waning days of Flowers’ prosecution to urge a judge to keep him in jail. 

Hopper, who’s running as a Republican, will face no opponent in November. Democratic DA Brenda Mitchell will also run unopposed in the Delta region after narrowly surviving a primary challenge against reform-aligned attorney Mike Carr. 

In fact, 17 of 21 DA races in the state only feature one candidate on the general election ballot. Of the remaining races, three involve Democratic DAs with a reputation for defending some criminal justice reform.

Scott Colom, a Democratic DA in northeastern Mississippi who drew national press for ousting a notoriously tough-on-crime prosecutor in 2015, hoped to be a federal judge by now: President Biden appointed him to the bench in 2022, but one of the state’s GOP senators is blocking his nomination. In the meantime, Colom is running for reelection against Jase Dalrymple, a Republican who vows a “more conservative approach” to prosecution and says Colom is too quick to use diversion tools. Colom’s 16th District leans Democratic.

The other two Democratic incumbents who face challengers this fall are Jody Owens, the DA of Hinds County, and Shameca Collins, who represents a rural district south of Jackson. Owens and Collins each signed a letter last year pledging to not prosecute cases relating to abortion, and they’ve each touted their efforts to expand alternatives to incarceration. 

In November, they’re running against independents Darla Palmer and Tim Cotton, respectively. The challengers have each indicated that their opponents are too focused on reforming the system. Palmer wants her campaign to send a message “that crime deserves punishment which includes incarceration,” she told Bolts this spring. Neither Palmer nor Cotton told Bolts whether they’d change the incumbent prosecutors’ approach to abortion.

The state’s fourth contested election, in the staunchly-red 14th District, is an open race that pits two assistant prosecutors, Republican Brandon Adams and Democrat Patrick Beasley.

Virginia

Eleven of Virginia’s commonwealth’s attorneys formed an alliance in 2020, called Virginia Progressive Prosecutors for Justice, meant to promote criminal justice reform. The group asked lawmakers to end mandatory minimum sentencing, abolish the death penalty, ban no-knock warrants, and increase opportunities for criminal record expungement, among other changes. And this year, most of these prosecutors had to stand for re-election.

Two alliance members, Arlington County’s Parisa Dehghani-Tafti and Fairfax County’s Steve Descano, went further than some of their colleagues in implementing changes like not charging marijuana without waiting for legislative change. They survived closely-watched Democratic primaries in June against opponents endorsed by local police unions. “If this election was a referendum on reform, our voters emphatically responded that they will not go backward,” Dehghani-Tafti told Bolts the night of her primary victory.

Neither Dehghani-Tafti nor Descano face another opponent in November. 

But three Democrats who joined them in the statewide alliance in 2020 still stand for re-election in contested races this fall in populous Prince William, Loudoun, and Henrico counties.

In Loudoun County, Democrat Buta Biberaj faces Republican Bob Anderson, who served as the county’s prosecutor from 1996 to 2003. Biberaj announced earlier this year her office would not prosecute misdemeanor offenses like trespassing and petty larceny to prioritize violent offenses,  a policy that Anderson has attacked as “unconscionable.” Loudoun voters have shifted massively to the left since Anderson’s tenure, from voting for George W. Bush for president by double-digits in 2000 to opting for Joe Biden by 25 percentage points in 2020, a year after Biberaj’s first election.

A similar debate is unfolding in Prince William County, where incumbent Amy Ashworth faces Republican Bob Lowery, who vows on his campaign site to “prosecute cases involving not just violent offenders, but all offenders.” Ashworth told Bolts, “As prosecutors, we have a duty to look at the bigger picture and attack the causes of crime to prevent it from occurring in the future, instead of blindly prosecuting all people to the fullest extent of the law.”  In blue-leaning Henrico County, finally, Democrat Shannon Taylor faces Shannon Dillon, a former assistant prosecutor in the county who is echoing her fellow Republicans in saying the office “refuses to prosecute the criminals” and blames Taylor for antagonizing law enforcement 

Besides those three traditionally partisan races, only one other county of more than 100,000 residents has a contested general election: Chesterfield County’s GOP incumbent Stacey Davenport faces independent Erin Barr, a former prosecutor who has focused her criticism of Davenport on a locally controversial decision to not prosecute a megachurch pastor for sexual solicitation. 

Fifteen far smaller and often rural counties in Virginia also have contested prosecutor races. 

Bolts reached out to non-incumbent candidates running in those counties to learn how they propose to change their county. Most who responded said they’d want to approach the office with a more independent spirit, or else emphasized a desire to ramp up sentences or foster closer relationships with the police. Running in Smyth County, for instance, independent candidate Paul Morrison said that people convicted of repeat offenses should be more likely to receive active jail sentences. 

One exception was James Ellenson, running in Southampton County and Franklin City against longtime incumbent Eric Cooke. Ellenson emphasized his own credentials as a criminal defense attorney and said Cooke is “just way too tough.” But he didn’t answer follow-ups on specific practices he’d want to change.

Ellenson last year was the defense attorney of a six-year old child who shot a teacher at school, a case that drew attention to the fact that Virginia has no minimal age under which children can’t be criminally prosecuted. 

What other elections to watch in the South 

Plenty of other elections beyond prosecutorial races will shape the region’s criminal legal system this November. Kentucky’s governor’s race could unwind the state’s approach to rights restoration for people with felony convictions. Louisiana and Mississippi are electing nearly all of their sheriffs, the officials who run these states’ local jails. 

And in Virginia, dozens of legislative races will decide whether Republicans win unified control of the state government; such a gain would strengthen Governor Glenn Youngkin and Attorney General Jason Miyares’ hand in their attacks against local officials who are pursuing reform policies. This will be the first general election in Virginia since Youngkin rescinded his predecessor’s policy of automatically restoring people’s voting rights when they leave prison. 

Alex Burness contributed reporting.

Explore Bolts primers of the other prosecutor elections in 2023

The post In the South, Challenges to Democratic Prosecutors Headline November’s Elections appeared first on Bolts.

To appreciate the impact of prosecutorial discretion, take a look at Paul Ebert, the commonwealth’s attorney of Prince William County, Virginia for 51 years.

In 2011, a federal judge faulted Ebert for having withheld exculpatory information in the case of Justin Michael Wolfe; the judge vacated Wolfe’s conviction and death sentence. “Commonwealth Attorney Ebert testified … that he employs a practice of withholding information from counsel and defendants with the intent of preventing them from establishing a defense around what the information provides,” U.S. District Judge Raymond Jackson wrote. This was routine for Ebert: Jackson blasted Ebert’s broader failure to institute an open-file policy in his office, which would mean sharing the information regarding a case with the defense. Ebert’s choices “served to deprive Wolfe of any substantive defense in a case where his life would rest on the jury’s verdict,” Jackson wrote, calling this “abhorrent to the judicial process.”

Coming as they did in a capital case, these findings were concerning given Ebert’s predilection for the death penalty. Ebert has put Prince William County on the death penalty’s national map⁠ over his five decades in office—he obtained more death sentences than any other Virginia prosecutor—and he did it with such policies that were not attentive to defendants’ rights.

Ebert is not seeking re-election this year, and the next prosecutor’s discretion will be just as wide as his was. The death penalty remains legal, and statewide efforts to mandate that prosecutors turn over information during discovery have been delayed.

The concurrent retirement of Corey Stewart, the far-right chairperson of the Prince William County Board of Supervisors, guarantees still more overhaul in local leadership. His departure opens the door to changes in immigration policy in particular.

The fate of Prince William County’s partnership with ICE likely hinges on the sheriff’s race and on the elections for board of supervisor.

Death penalty, discovery, and decarceration: What contrasts on prosecution?

Two candidates are facing off in the general election, scheduled for November: Democrat Amy Ashworth, a private attorney and former assistant prosecutor, and Republican Mike May, a former member of the county’s Board of Supervisors. May also ran in 2015, narrowly losing to Ebert in what was the incumbent’s first contested re-election bid in two decades. Besides Prince William County, the jurisdiction also covers Manassas City and Manassas Park City.

The Political Report asked each candidate about their positions; you can read the full exchanges with Ashworth and with May.

In his first run for prosecutor in 2015, May faulted Ebert for his insufficient transparency. “If the perception is that the prosecution is withholding evidence, that sows the seeds of distrust,” he reiterated to the Political Report. He said he would institute an open-file system, and use electronic means to share information “to the maximum extent practicable.” Ashworth also believes that “the defense must be provided with all information about a case,” and this in a “timely, complete, and efficient manner,” a spokesperson told the Political Report. She did not specify whether Ashworth would do so electronically, noting that the means would depend on the “complexities of the case.” Neither provided guidelines with regards to a precise timeframe; how early prosecutors share information can be crucial to a fair defense.

Ashworth is more direct when it comes to questioning reliance on incarceration. Her website criticizes the jail expansion the county is currently pursuing. “I firmly believe that building more jails and prisons is never the answer,” she writes. “We need to start diverting people away from the prison system.”

May voted in favor of this jail expansion when he was a member of the Board of Supervisors. He told the Political Report that this vote means he has “seen firsthand how expensive incarceration is.” Asked about decarcerative reforms he favors, May mentioned diversion programs that “keep nonviolent offenders out of jail,” but specified no avenues to further expand such programs. 

In her interview with the Political Report, Ashworth made the case that “it is not smart to focus on prosecuting victimless crimes like drug possession.” She said that she would seek to avoid “conviction or incarceration” for “the vast majority” of marijuana possession cases, and that she would seek to divert “many first offender nonviolent misdemeanors.” 

May took issue with Ashworth’s stance on marijuana. Avoiding “conviction or incarceration” beyond a first offense, he said, was equivalent to legalizing marijuana “by prosecutorial fiat.” But Ashworth herself repeatedly qualified the scope of her reform proposals; she restricted her openness to diversion to “first offenders,” and said she opposed policies that involve altogether declining to prosecute a certain category of charges, including those involving marijuana. There should still be penalties because “that is the point of the criminal justice system,” she said.  

Both candidates’ positions on these matters are a far cry from the declination policies adopted by prosecutors like Boston’s Rachael Rollins, and from the proposals made by other Virginia candidates to also modify prosecutorial approaches to higher-level offenses or repeat charges.

But when it comes to a big issue driving incarceration—pretrial detention—Ashworth told the Political Report that she would “stop the use of cash bail to reduce the jail population.” This is a consequential change that is championed by some local politicians. May did not make such a commitment, conditioning bail reform on other changes to pretrial programs.

Contrasts emerged elsewhere too. Both candidates said they would be open to seeking the death penalty if they became prosecutor. Only Ashworth added she would use it more rarely than Ebert. “When I’m elected, this trend will stop,” she said.

Ashworth also stated support for legislation to legalize or decriminalize marijuana. May declined to take a position on either of those proposals, saying instead that the legislature should let people expunge first-time marijuana possession convictions. 

The candidates diverge, finally, on a heated local issue: What should happen with the county’s close partnership with ICE? 

A contract with ICE is on the line

Prince William is one of two Virginia counties in ICE’s prized 287(g) program, which authorizes local law enforcement officers to act like federal immigration agents within jails. The program has led thousands to be deported since 2007 in this county, and it has been met with organized opposition from immigrants’ rights advocates. “It creates a culture of fear, it creates a lot of internal trauma,” Monica Sarmiento, executive director of the Virginia Coalition for Immigrant Rights, told the Political Report. “Immigrants are scared to call the police because of the fear of deportation.”

Ashworth advocates ending the contract, while May supports its maintenance. 

The commonwealth’s attorney does not control the future of this partnership. Still, the fate of 287(g) is on the line this year because of other local elections that are scheduled for November.

Many counties grant sheriffs sole authority over 287(g) contracts, but Prince William County has unusually complicated rules. ICE has entered a contract with the 11-member board of the Prince William – Manassas Regional Adult Detention Center, and a decision to terminate the agreement rests with that group. 

The sheriff has a seat on this jail board; most other members are appointed by the county’s board of supervisors, whose chairman—the retiring Stewart—has relentlessly championed ICE since 2007. This fall, voters are electing a sheriff as well as their board of supervisors. 

The contract with ICE looms large in those elections, which are expected to be competitive. The GOP currently holds the sheriff’s office and a majority on the board of supervisors, despite the fact that the county voted for Hillary Clinton by 21 percentage points in 2016. 

Sheriff Glenn Hill, who favors 287(g), is running for reelection. His opponent is Democrat Josh King, who has said ending this contract would be a priority. “I will use both my vote on the jail board and my influence with the new and hopefully Democratic-controlled board of supervisors to end this Corey Stewart-era policy,” he told Inside Nova. “Ending this policy is the first step in rebuilding trust between law enforcement and our majority-minority community.” 

The other high-profile election is the race to replace Stewart as chairperson. Contenders are Republican John Gray, who is mirroring Stewart’s views on immigration and favors 287(g), and Democrat Ann Wheeler. The Political Report could not identify a public record of Wheeler’s position on 287(g). She did not reply to multiple requests for comment about her views.

The results of the prosecutorial election could also impact immigration policies. The next commonwealth’s attorney may not control the 287(g) contract, but the office wields direct power over the lives of immigrants in other ways. Charging decisions determine whether a defendant becomes vulnerable to deportation. Ashworth told the Political Report that she would take the potential for such consequences into account when processing cases.

“That’s when you use your prosecutorial discretion and fashion a remedy so that you can exact justice and you can make sure that the person is made whole,” Ashworth said.

The post Prince William County Is at a Crossroads, As Powerful Local Officials Retire appeared first on Bolts.

The Political Report asked May about his positions on some issues that the next prosecutor will decide. May’s opponent is Democratic nominee Amy Ashworth, a private attorney and a former prosecutor in the commonwealth’s attorney office. The Political Report interviewed Ashworth before the Democratic primary. You can also read our preview of the general election.

May told the Political Report that he would “fully utilize” existing diversion programs and alternatives to detention in order to “keep non-violent offenders out of jail.” He did not indicate new avenues to expand diversion programs, or further reforms to cut incarceration. He said he backs diverting first-time marijuana possession arrests, but took issue with his opponent’s position that she would seek to avoid “conviction or incarceration” for most cases of marijuana possession. He called on the legislature to allow people to expunge first-time marijuana convictions, while declining to take a position on proposals to decriminalize or legalize marijuana. 

May said that he would institute an open file discovery system and require that prosecutors share the materials relating to a case with the defense. “If the perception is that the prosecution is withholding evidence, that sows the seeds of distrust,” he said. “If the prosecution actually is withholding evidence, well, that’s much worse.” He added that he would like to share information electronically, but was not ready to provide precise guidelines as to the timeframe. May also said that he was open to seeking the death penalty, and declined to indicate whether he would scale back its use compared to the incumbent. Finally, May indicated that he favors Prince William County remaining within ICE’s 287(g) program.

The exchange has been condensed and lightly edited.

Paul Ebert, the incumbent commonwealth’s attorney is known for having frequently sought the death penalty. Would you consider seeking the death penalty if elected, and if so how frequently do you think the death penalty ought to be used?

The power to take a life is the most awesome power the government can wield.  The death penalty is not something to be celebrated. It should be rare, and it should not be used for revenge. However, there are some crimes that are so heinous and so unspeakable that this punishment must be considered to keep the community safe.
When the commonwealth’s attorney determines to proceed on a death penalty case, he/she must ensure the integrity and fairness of the system and due process for the accused. This is of course vital for any criminal prosecution, but particularly so in a capital case. Recently, Judge Smith referred to such obligation as “super-due process.”  In any capital case, the commonwealth attorney should be overly transparent and err on the side of caution in terms of disclosure as the case proceeds. This is one of the reasons an open-file discovery policy is so important.

Do you wish to scale back the use of the death penalty compared to the incumbent prosecutor’s record, even as you are open to seeking it?

Every case will depend on its specific facts and circumstances, but the philosophy outlined in my prior response will guide my decision making process when determining whether or not to pursue the death penalty.

You have faulted the retiring incumbent in the past for insufficient transparency, and you have pointed to the finding that his office withheld evidence. Are there specific changes you would like to make to the policies of the commonwealth’s office to ensure greater transparency? How you would communicate discovery information with the defense?

When I ran for this office four years ago, I called for criminal discovery reform (open-file).  I supported open-file then and I remain committed to an open-file today. People must have confidence in our criminal justice system. If the perception is that the prosecution is withholding evidence, that sows the seeds of distrust. If the prosecution actually is withholding evidence, well, that’s much worse. An open-file policy would resolve this.

In terms of the policy details, it is not especially complicated. We must make specific provisions to protect witnesses and victims, but as a general matter we can reform our policies relatively easily with the assistance of technology.  Having practiced in multiple jurisdictions (both state and federal), I have seen policies that work quite well and would likely draw from those models in implementing local procedures for Prince William.

What exactly do would understand by “open file?” Would you forward to defense counsels electronic copies of all documents pertaining to a case, within the bounds of these protective provisions, and this within a set period of time, and if so do you know what the timeframe would be?

The information should be made available within a reasonable period of time such that the defense can adequately prepare for trial. To the maximum extent practicable, I would like to use electronic means to convey information. At the same time, I have no doubt that there are logistical hurdles that could have a material impact on the timing or means of delivery. One of the first things I will do is commission an audit of the office, and the result of that audit will give us a great deal of the information needed to implement the specifics.

Virginia has a higher incarceration rate than the national average. Do you think that cutting incarceration is be goal you should pursue as commonwealth attorney, and if so what are specific reforms to current practices that you wish to implement for that?

As a Member of the Board of County Supervisors, I had to vote to expand the existing jail in our community—so I have seen firsthand how expensive incarceration is for our taxpayers. To the extent we can keep non-violent offenders out of jail through the diversion programs and other alternatives, I support them.

Your Democratic opponent has said she would not seek “conviction or incarceration” for the majority of marijuana possession cases, as well as for many “first-time nonviolent misdemeanor” cases like driving with a suspended license. What is your view of whether alternatives to incarceration and pre-trial diversion should be increased, and if so what’s the scope of the cases for which you’d like to do so? Do you agree “conviction or incarceration” should be avoided for marijuana possession and driving with a suspended license? 

As a general policy matter, diversion should be fully utilized. It’s a lot cheaper for taxpayers if we can keep non-violent individuals who pose no threat to the community out of jail.

As to marijuana, the Virginia Code has a statutory diversion program for first-time possession cases and I support it. An individual should not be unduly punished for making a one-time mistake. I would also like to see the legislature amend the Code to allow individuals who utilize this diversion program for marijuana possession the opportunity to expunge the matter from their records at some point. Under present law, the charge can never be expunged even though the diversion program, if successfully completed, results in a dismissal of the charge.
When it comes to second-time, third-time, and fourth-time marijuana possession offenses, however, there is no statutory diversion available. Incarceration is probably not warranted for most of these cases, but if you don’t seek “conviction or incarceration,” the only other choice you have is to dismiss the case. In effect, you will have legalized marijuana possession by prosecutorial fiat.

Attitudes about marijuana are continuing to evolve and I am open to looking at ways to avoid undue punishment for something many believe should be legalized. At the same time, the prosecutor takes an oath to enforce the laws of the Commonwealth and a prosecutor does not get to pick and choose which laws to enforce. Ultimately, the legislature needs to resolve this matter, either by expanding the statutory framework for diversions in these kind of cases, or decriminalizing/legalizing marijuana possession generally.

With respect to other cases involving non-violent offenses, the Virginia Code has several diversion options and I support fully utilizing them.

You mentioned decriminalization or legalization. Do you have a position on what the legislature should do on either front? Others have spoken up on both sides of the debate, so I am wondering if you would add your voice to either debate.

I think there are reasonable arguments on both sides, but it’s ultimately up to the legislature.

Prince William County has a 287(g) contract with ICE. Your opponent, Amy Ashworth, has expressed opposition to it. This does not fall under the commonwealth attorney’s jurisdiction, but do you have a position on whether the county should remain part of the program?

As you note, this is not within the purview of the Commonwealth’s Attorney, but I do support the county continuing in this program.

State Delegate Jennifer Carroll Foy, a Democrat, called on Paul Ebert to end the use of cash bail last year. What is your view on whether cash bail is being used appropriately in the county now, and would you curb its use?

As a matter of fundamental fairness, we don’t want someone to stay in jail longer than his/her likely sentence just because they can’t pay a bond. As noted previously, as a Supervisor I had to vote to commit taxpayer dollars to fund the jail expansion. That expansion should primarily be to enhance public safety; not to house individuals that are not a danger to the community and are only there because they can’t pay bond.

However, if we are going to reform the cash bail system, we need to increase investment in pre-trial services and other local government pre-trial monitoring programs. Our office policy would be to request alternatives to cash bail whenever feasible and appropriate. If the accused is a danger to the community, we will oppose pretrial release.

The post Mike May, Running for Prosecutor in Prince William County, Lays Out His Positions appeared first on Bolts.

The nationwide push to overhaul prosecutorial practices has reached Virginia, which hosts three contested elections for commonwealth’s attorney on Tuesday. These are powerful officials who shape the local legal system, while wielding outsize influence on state lawmaking.

These three elections are all Democratic primaries in populous Northern Virginia counties, and the results of each could substantially transform local approaches to prosecution.

Prince William Democrats are set to nominate their first candidate in half a century who is not Paul Ebert, a retiring prosecutor with a predilection for the death penalty.

But the widest contrasts lie elsewhere. Theo Stamos, the commonwealth’s attorney of Arlington County and Falls Church, is facing Parisa Dehghani-Tafti, a former public defender who is the legal director of the mid-Atlantic Innocence Project. Ray Morrogh, the commonwealth’s attorney of Fairfax County and Fairfax City, is facing Steve Descano, a former federal prosecutor.

Arlington and Fairfax counties

The two challengers are confronting the state’s criminal legal system as something that needs systemic reforms prosecutors can take on, beyond changing how they assess individual cases.

Dehghani-Tafti told me in an interview that her work as a defense attorney meant dealing with single cases as they came along—“plucking the babies out of the river,” she said—but that her candidacy was a way of “walking upstream” to “see who is throwing them in” and address the problem head-on. She said in her campaign announcement that she was running “to dismantle the mass incarceration machine.” Descano similarly told me in an interview that “if you were to have a prosecutor who was committed to making a dent in mass incarceration and ending mass incarceration, it would be within their powers” to do so, for instance by “changing the way that you charge crimes.”

Both challengers cast themselves as part of a broader movement to overhaul statewide practices.

Descano talked of creating “a coalition” to “act as a counterpoint” to the Virginia Association of Commonwealth’s Attorneys (VACA). VACA is the group that lobbies on behalf of Virginia prosecutors, typically for more punitive policies. Similarly, Dehghani-Tafti told me that she hoped “to be elected with a wave of other reform prosecutors;” she said of VACA that “right now, they don’t speak for me.”  

Incumbents Morrogh and Stamos, by contrast, have served in VACA’s leadership. Both tout their interest in criminal justice reform, even as they have fought efforts to overhaul the legal system. In 2016, for instance, they signed on to a lawsuit against Governor Terry McAuliffe’s executive order restoring the voting rights of Virginians who have completed their sentences.

Morrogh testified in Congress in 2014 that the Obama Administration’s proposed sentencing reforms would “roll the dice with the safety of America’s communities.” His campaign did not respond to a request for comment about his view on the fairness of sentencing in Virginia.
Stamos told me that “Arlington does not engage in mass incarceration” when I asked her if she thought Virginia’s incarceration rate was too high.

In an event held in May 2018, she similarly said “mass incarceration” was “a term that is used to deligitimize what we do because there isn’t a prosecutor in this country that engages in mass incarceration.” Prosecutors “don’t round up people in a mass way,” she explained, but instead treat people as individuals.

But prosecutors enjoy wide discretion to handle individual cases in a more- or less-punitive manner. Kira Lerner reported in The Appeal this week on Stamos’s office’s history of aggressive charging practices, which have resulted in children being detained over low-level offenses.

A pattern of individual cases can accumulate into an unequal system. Stamos touted the decrease in the jail population, and it is true that Arlington’s per capita incarceration rate is lower than the statewide average, according to the Vera Institute of Justice’s database. But, for Black people, this rate is higher than the statewide average. African Americans make up 9 percent of Arlington’s population but approximately 60 percent of people who are convicted of marijuana possession, trespass, or larceny, according to an analysis by the state Supreme Court. Stamos told The Appeal that this disparity is due to people “coming into our community and committing offenses” from elsewhere. “Arlingtonians are very law-abiding, as it turns out,” she said. “It’s other folks coming from other areas of the region.”

The candidates’ differing attitudes toward systemic reform plays out in specific policy areas and in their understanding of prosecutorial discretion.
First, take the debate that has unfolded over marijuana. Dehghani-Tafti and Descano both told me they would decline to prosecute marijuana possession altogether. In rejecting that stance, Stamos and Morrogh have both criticized the very principle of declination (a default policy of not using certain charges). “I do not think it is the role of the Commonwealth’s Attorney to decide not to prosecute certain types of crimes because of her personal opinion,” Stamos told me in a written message. Morrogh has made the same point on the trail.

Dehghani-Tafti argues that it is misleading for prosecutors to minimize their discretion and to say they are merely enforcing laws. “This is a shell game of prosecutors saying, ‘we have no discretion, we just follow the law,’ and then turning around and making sure that none of their tools are taken away from them,” she told me, referring to prosecutors’ legislative lobbying. Last year, for instance, VACA opposed a bill to decriminalize marijuana possession.

Second, take voting rights. Stamos and Morrogh have said one reason for their suit against McAuliffe’s executive order restoring voting rights was the blanket nature of its first iteration, namely that it was meant to cover all cases at once. When courts overturned McAuliffe’s initial executive order, the governor turned to restoring voting rights on an individual basis.

Stamos told me of McAuliffe’s “en masse” order that “too many individuals whose rights were restored were still on probation, owed restitution to crime victims and, in some instances, still incarcerated at the time their rights were restored.” She said that she backs “comprehensive legislation” to expand rights restoration, but she did not answer whether she supports restoring the rights of people who are incarcerated or on probation, or of people who still owe financial obligations. Morrogh did not reply to my request for comment on disenfranchisement.

Both challengers are pushing far beyond McAuliffe’s position. Dehghani-Tafti told me that she supported the full abolition of felony disenfranchisement. This would allow people to vote from prison. Descano told me “I haven’t seen any reason why” anyone is stripped of the right to vote.

Both primaries are marked by other reform proposals and policy disagreements.

Death penalty: Both challengers ruled out seeking the death penalty in interviews with the Political Report. Neither incumbent has ruled it out. Stamos said in a debate that she would “be just fine” with the legislature repealing capital punishment.

Charging practices: In answer to my questions on declination, neither challenger listed charges other than marijuana that they’d decline to prosecute; others prosecutors have extended declination to broader categories, including in Dallas and Boston. But Descano said there were offenses that he would like to “prosecute in a different way,” and that a priority would be to reduce the share of people with felony convictions, for instance by refraining from filing the highest allowable charges. He told Inside Nova that he would not charge theft of property under $1,500 at the felony level. “I’m not going to ruin somebody’s life and put them in jail for stealing an iPhone or making a single mistake,” he said.

Diversion: Morrogh, the Fairfax prosecutor, has touted a program that prioritizes alternatives to incarceration for people with mental health or substance use problems. Descano, his challenger, told me that he would like to create diversion programs for which people qualify without needing to first plead guilty. Morrogh did not respond to a request for comment on whether he would expand pre-charge diversion options.

Prince William County

A commonwealth’s attorney since 1968, Paul Ebert has made Prince William County a national epicenter for the death penalty. The Post wrote last year that Ebert has obtained more capital sentences than “any other prosecutor in Virginia.” He replied that “very few” people “qualify for” the death penalty, but “for some reason, Prince William seems to get people who qualify.

This explanation obscures commonwealth’s attorneys’ discretion. He should know. His tenure has been marred by complaints of excessive or inappropriate behavior, including a case Radley Balko dubbed “one of the more brazen examples of prosecutor misconduct in recent memory.”
Ebert, a Democrat, is retiring this year after 51 years in office, and two Democrats are running to replace him in next week’s primary. Amy Ashworth is a former prosecutor who now works as a private attorney, and Tracey Lenox is a criminal defense attorney who is running with Ebert’s endorsement.

In separate interviews, both candidates highlighted changes they’d make to his office, though neither endorsed the bolder reforms proposed by Descano or Pahghani-Tafti. Both said they wanted to restrict the use of the death penalty, but neither ruled out seeking the death penalty.

Both talked of de-emphasizing prosecution and incarceration over low-level charges. Lenox told me she would seek to “divert and dismiss” most “nonvictim misdemeanor charges” because it “doesn’t make sense” to “be seeking convictions” for offenses like marijuana possession and driving with a suspended license. Ashworth mentioned the same examples to explain that “it is not smart to focus on prosecuting victimless crimes.” Regarding the scope of cases fit for diversion, she repeatedly specified that she was talking of first-time offenses.

Some prosecutors who look to de-emphasize low-level charges have rolled out declination policies, but Ashworth and Lenox both spoke against this approach, including for marijuana possession. Ashworth argued that a blanket declination policy would violate her oath of office. Lenox offered a more strategic explanation, namely that it could generate a backlash against reform among other stakeholders. “Diversion is the easier project, because then you can give the judges something to hang their hat on,” Lenox said.

A more straightforward difference emerged when I asked how they would each change the legal system’s approach to offenses involving violence. Both invoked Virginia’s non-mandatory sentencing guidelines (recommended ranges for different types of cases) in their response, but to contrary effects. Lenox questioned the guidelines’ neutrality, arguing that they reflect “norms” inherited from a time where “high incarceration was the solution to things;” she said she wants to create opportunities for below-guideline sentences. By contrast, Ashworth declined to assess the guidelines’ fairness, and emphasized the value of using them as a constraint in order to be consistent and reduce the disparities that can accompany sentencing.

Prince William County is one of only two counties in Virginia in ICE’s 287(g) program, which deputizes local law enforcement to act like federal immigration agents. While terminating this contract falls outside of the commonwealth’s attorney’s jurisdiction, both Ashworth and Lenox told me that they opposed the program and would advocate against it if elected.

Mike May, a former county supervisor, has already secured the GOP nomination. The county has a history of voting for candidates from both parties, so the general election could be competitive. The Political Report will return to May and the general election in the months ahead.

The post Tuesday's Elections Could Overhaul Prosecution in Northern Virginia appeared first on Bolts.

The position of commonwealth’s attorney in Prince William, a populous county in Northern Virginia, is up for grabs for the first time in decades. Paul Ebert, a Democrat whose office is known for frequently pursuing the death penalty and for findings of misconduct, is retiring after 51 years in office. Last week, I talked to Tracey Lenox, a criminal defense attorney and one of the two candidates running to replace Ebert in the June 11 Democratic primary.

This week, I talked to Amy Ashworth, a private attorney and a former prosecutor in the commonwealth’s attorney office. She is also running in the June 11 Democratic primary. (The primary winner will then face Mike May, a former county supervisor who has already secured the GOP nomination, in November.)

Ashworth told me that she supported decriminalizing or legalizing marijuana, and repealing the death penalty. She said that until those changes become law, however, she would remain open to seeking the death penalty, and she would not institute a policy of declining to pursue certain types of charges like marijuana possession (as prosecutors have done elsewhere). She argued that such blanket declinations would violate her oath of office. She explained that she would instead use diversion programs and alternatives to incarceration for “the vast majority” of marijuana possession cases and for “many first offender nonviolent misdemeanors.” She added that she would focus elsewhere than on these cases, but emphasized as well that there should still be penalties associated with them because “that is the point of the criminal justice system.” Ashworth also discussed why cash bail has “unfairly punished” defendants, and she reiterated her opposition to Prince William County’s 287(g) contract with ICE.

The interview has been condensed and lightly edited.

Your campaign website states that you are “personally against” the death penalty. How would translate to your actions in office? If elected, would you ever seek the death penalty,  and if so under what circumstances would you consider doing so?

As commonwealth’s attorney, I would take an oath to uphold the laws of Virginia, and the death penalty is legal in Virginia. I do not think the death penalty is appropriate in most cases, and it’s difficult for me to offer hypotheticals about when I would consider pursuing the death penalty. The crime would have to be so egregious that life in prison without parole would not do justice to the victims and their families. The bottom line is the death penalty should be extraordinarily rare. Under our current commonwealth’s attorney, Paul Ebert, Prince William County was ranked second in the nation for sending inmates to death row. When I’m elected, this trend will stop.

What are examples of the sort of circumstance in which Paul Ebert has sought the death penalty, but where you think this sentence would be excessive?

I am not comfortable going back and second-guessing the decisions that the prosecutor has made. As I said, I am personally opposed to the death penalty. I would support legislation to remove it from Virginia’s law. However, given that it is part of Virginia’s law and I would swear to uphold that law, I can only say that it would have to be an extremely egregious case. The shooting of the kindergartners comes to mind, anybody that would target that would commit a group and commit mass homicide come to mind as that type of cases. Certainly cases where the identity of the perpetrator is well-known.

Some prosecutors have rolled out policies to decline to prosecute certain cases like marijuana possession, or expand diversion programs that don’t rely on filing charges or obtaining a conviction. Are there offenses that you would altogether decline to prosecute, or for which you would expand opportunities for pre-charge diversion? In particular, would you continue prosecuting cases of marijuana possession, and would you seek jail time for drug possession?

It is not smart to focus on prosecuting victimless crimes like drug possession or driving on suspended. I would welcome a change in our laws that decriminalizes or legalizes marijuana with restrictions on sales similar to those on alcohol. As commonwealth’s attorney, I would take an oath to uphold the laws of Virginia, which means enforcing the laws as they are currently written. However, in the vast majority of possession of marijuana cases, we would not seek conviction or incarceration and would look to divert cases from the criminal justice system. The Commonwealth’s Attorney’s Office has limited resources and should be focused on crimes that case the most harm. Other crimes for which we can and should consider diversion include many first offender nonviolent misdemeanors.

What is the scope of these misdemeanor offenses for which you’d consider diversion programs?

I am open to diversion in cases where we’re talking about first offenders, young adults, nonviolent offenses, situations where a victim can be made whole, where a perpetrator is remorseful for his actions. Those are the type of cases that I would be open to diversion from conviction. There would have to be a penalty associated with it, that is the point of the criminal justice system, but I don’t necessarily think it has to be incarceration. It could be fines, it could be community services. There are a lot of alternatives to just incarcerating somebody.

Returning to your point about enforcement: Some prosecutors have announced they won’t be prosecuting some charges, for instance Baltimore’s prosecuting attorney has said that she will not file marijuana possession charges. Could you explain further why you would not pursue such a policy and altogether decline to prosecute certain charges?

I think when you take an oath to uphold the law, you can’t just say I’m not going to prosecute certain crimes, unless you have a good faith reason to believe that that law is unconstitutional as written. If it’s a valid law, you can use your discretion in how you handle each individual charge, but you can’t blanketly say I won’t uphold my oath, which is basically what you’re saying. There are certainly older laws that are arguably unconstitutional. In those cases, if you have a reason to suspect that the law itself is not valid, that’s a different scenario than just saying I’m not going to prosecute this crime because I don’t like it. That’s not your job as prosecutor. That’s contrary to your oath.

I’d like to further probe this question of the scope and limits of using discretion. On your website, you praise the policy that former Governor McAuliffe instituted of issuing executive orders to restore the voting rights of all individuals who complete their sentence. When it comes to how officials use discretion, what do you think is the difference between that policy, and a declination policy? Is that a relevant comparison?

Not really. The governor has the discretion to restore voting rights. What the Supreme Court ended up saying is that the way he did it was incorrect, that he had to do it individually. That’s entirely different from a prosecutor’s discretion, and I think it violates your oath to office to say that you are going to disregard particular types of charges. You can in an individual case as a prosecutor use your discretion to treat that individual fairly based upon the facts and circumstances of that individual case.

So perhaps it’s not an unfair comparison because when the governor restored the rights individually, in each individual case, that was acceptable. That was in compliance with the law. Maybe I’m not saying it’s different.

If it’s a matter of having the opportunity to review the cases individually, would you be open to having a bias toward declination toward some categories of cases?

Yes, and I said that. I said I want to focus our resources in the commonwealth’s attorney’s office on the crimes that cause the most harm, so your violent crimes, your special victims crimes, those sort of things. I’m not saying I wouldn’t prosecute other crimes, obviously I would I have a duty to do that. But do you have to incarcerate first-time offenders on nonviolent cases? Probably not.  

The state’s incarceration rate is higher than the national average. Do you believe prosecutors play a role in impacting mass incarceration? Would a significant reduction in incarceration be a goal you would pursue as commonwealth’s attorney, and what specific reforms would you pursue to reach such a goal?

Prosecutors absolutely play a role in mass incarceration. As commonwealth’s attorney, I will stop the use of cash bail to reduce our jail population. Additionally, prosecutors have a number of dispositional alternatives to incarceration for those awaiting trial on nonviolent offenses, such as payment of fines, community service, therapy, and treatment or rehabilitation programs. For nonviolent first offenses, especially for juvenile offenders, it is often appropriate to utilize these dispositional alternatives that keep people out of prison, thereby reducing our prison population. We must also consider the role of mental illness and help those with mental health diagnoses seek treatment rather than incarcerate them.

You mentioned wanting to stop using cash bail. Why do you think cash bail is a problem, and what is the scope of this commitment? Are there circumstances where you think its use of cash bail is appropriate?

In the vast majority of cases, while somebody is awaiting trial and they’re presumed to be innocent, if they’re not at risk of fleeing and being a danger to society, then it doesn’t have to a cash bond. They can be released on their own recognizance, they can be released on conditions such as reporting to a pretrial supervisor. Again, we’re talking about people who are not at risk to society, or to themselves, and not at risk to leave the jurisdiction.
The cash bond system has often unfairly punished people who cannot afford to make those bonds, and disproportionately affected people of color. When you are held in jail, there is a good chance that you’re going to lose your job, your housing. Ultimately, you may not be convicted of a crime yet you’ve paid a tremendous price because you couldn’t afford a cash bond. That’s the problem with the cash bond system when we apply it to every single case.

Do you think there are steps that the office should take to change the way crimes involving violence are handled, for instance in charging and sentencing practices or with restorative justice?

Your crime of violence, your large scale narcotic traffickers, your gangs, all of those need to be prosecuted to keep our community safe. Those are cases that are probably not be eligible for bonds at all because they’re crimes of violence or they involve flight reform. When we’re talking about bail reform, we’re not necessarily talking about those types of cases.

We have in Virginia sentencing guidelines. An individual receives a certain score based on their sentence and some of the factors that are involved in the crime, like if a weapon is used your score is higher. Your score gives you a range of sentences for the judge to consider. They are not mandatory, the judge can go below those guidelines or above them. But those guidelines set a general range for people charged with this crime, with those particular background and factors. Using your guidelines, you can try to ensure that sentences are consistent across the board, so there’s no point for being a particular religion, or a race, or whether you’re male or female or anything else. It’s meant to give some consistency across the entire state, and I think using those guidelines are a good step in reducing any disparity in sentencing. Another good step would be diversifying the prosecutors that work within the office to reflect more of the community so you have different backgrounds, different cultures within the office, and use implicit bias training so that people are aware that racial discrimination exists in our criminal justice system, and we have to proactively make sure that we are doing what we can to stop it.

Do you think the current guidelines are generally fair? Are there circumstances where you would you look to go below the guidelines?

I think you have to look at each case individually, always. There are different circumstances why a prosecutor would make a recommendation that’s below the guidelines and sometimes above the guidelines. There are a lot of factors that come into play in each individual case.

Your website states that Prince William County’s 287(g) contract with ICE (one of only two in the state of Virginia) which is “created an entire class of people that were too afraid to call upon the police.” Do you think that the county should quit this program, and would you speak in favor of withdrawal if elected? Are there steps that you would take as prosecutor to ease the fear that you describe, or shield noncitizens from immigration consequences of prosecution? 

I absolutely believe the county should quit the 287(g) program and I would speak out against the 287(g) program if elected. As commonwealth’s attorney, I would work to diversify the office so it better reflects the people of our jurisdiction. I would be an active participant in the community and engage community leaders. I would handle undocumented immigrants the same as everyone else: fairly and equally under the laws of the Commonwealth of Virginia.

Sometimes the same charge can bring collateral consequences for a noncitizen, but does not have those consequences for someone who is a citizen. Would that feature in how you make charging and sentencing recommendation?

Absolutely. It has to. You are absolutely right, sometimes because of somebody’s status there are collateral consequences to a conviction. The collateral consequences will be a far harsher punishment than what was ever intended or is appropriate. That’s when you use your prosecutorial discretion and fashion a remedy so that you can exact justice and you can make sure that the person is made whole and understands what is happening and why. You have to take these things in consideration.

You announced a run for prosecutor before Commonwealth’s Attorney Paul Ebert announced his retirement. What led you to decide to challenge him, and were there aspects of his record that you were concerned about?

Having worked in the office for eleven years, I know and am familiar with the good things about the office, and the things that need to change. And when I heard that Mr. Ebert was going to run for another term, I decided to challenge him because there are things in the office that need to be addressed as evidenced by the recent ethical violation of one of the prosecutors in the office at the direction apparently of the chief deputy that resulted in a Virginia State Bar public reprimand. The fact that they missed deadlines in a capital murder case twice was another reason. After I left the office, people would come to me and tell me about stories that were happening in the office that they weren’t happy about. All of these things combined.

The post “It Is Not Smart to Focus on Prosecuting Victimless Crimes like Drug Possession:” A Q&A with Amy Ashworth appeared first on Bolts.

Daniel Nichanian

You can visit the Political Report’s broader coverage of the 2019 elections here.

The prosecutorial election of Prince William, a populous county in Northern Virginia, is up for grabs for the first time in decades. Commonwealth’s Attorney Paul Ebert, a Democrat whose office is known for frequently pursuing the death penalty, as well as for findings of misconduct, is retiring after 51 years in office. Amy Ashworth and Tracey Lenox are running to replace him in the June 11 Democratic primary. 

Tracey Lenox (Photographer: Mark Finkenstaedt)

This election is one of three contested prosecutorial primaries races happening in Virginia this year.

The Appeal: Political Report has also interviewed Parisa Dehghni-Tafti (Arlington County), Steve Descano (Fairfax County), and Amy Ashworth (Prince William County).

The post "It Undermines Communities to be Seeking Convictions for Nonviolent Misdemeanor Offenses:" An Interview with Tracey Lenox appeared first on Bolts.