By Rory Fleming
The impact of the Republican sweep in Virginia on November 2 won’t be limited to Glenn Youngkin’s winning his dog-whistle gubernatorial campaign.
Attorney General-elect Jason Miyares, an ardent opponent of gun control and abortion, similarly squeaked home against his Democratic opponent with under 51 percent of the vote. And he has immediately signaled that he will pursue new legislation to usurp prosecutorial discretion from Virginia’s locally elected county prosecutors, known as commonwealth’s attorneys. His clear purpose echoes Youngkin’s fear-mongering against so-called “progressive prosecutors.”
In recent years, several reform candidates have trounced conservative Democrats in Commonwealth’s Attorney elections across the state. Their jurisdictions tend to be heavily Democratic-leaning areas— like Arlington, where Commonwealth’s Attorney Parisa Dehghani-Tafti has made moves to grant leniency in even large-scale cannabis cases; and Portsmouth, where Commonwealth’s Attorney Stephanie Morales became one of the rare top local prosecutors to successfully prosecute an on-duty police officer for killing a civilian.
As Miyares has explained, the proposed bill would give the state attorney general concurrent jurisdiction to prosecute local cases where the commonwealth’s attorney refuses to charge. By launching an attack on these prosecutors’ autonomy, Miyares can gratify both the law-and-order fanatics of his base and those who generally want to see Democrats punished.
“Tough-on-crime” leaders in other states, including Pennsylvania Attorney General Josh Shapiro, a conservative Democrat, have also taken this approach as a way to undercut the gains of the progressive prosecutor movement. But even those who don’t share the view that reducing arrests and incarceration is a good thing may have qualms about removing the discretion of prosecutors who were, after all, elected.
In Indiana, for example, controversy brewed when Marion County Prosecuting Attorney Ryan Mears announced he would no longer prosecute low-level cannabis possession cases. The Indiana Prosecuting Attorneys Council, which represents the state’s elected prosecutors, is so conservative as a whole that it opposes even medical cannabis programs. But the association also continues to oppose efforts to strip prosecutorial discretion, with IPAC Senior Counsel Dave Powelll even calling it the profession’s “holy grail.”
Back in Virginia, the legality of stripping a Commonwealth’s Attorney of discretion over their cases is also unclear. When Norfolk Commonwealth’s Attorney Greg Underwood attempted to dismiss misdemeanor cannabis cases in bulk in 2019, trial court judges opposed the move. The Virginia Supreme Court then sided with the local judges. But legislation to abrogate that decision and give dismissal authority back to prosecutors was signed by the governor the following year.
On top of that, the Virginia Supreme Court’s analysis could have been wrong; it simply relied on state common law tradition from as early as 1803. In contrast, when the Massachusetts Supreme Judicial Court heard a similar case in 2021, it came to the opposite conclusion. This was essentially due to the Consitution’s separation of powers doctrine. To that court, the ability to decide to prosecute cases exists solely in prosecutors, who are officials located in the executive branch.
The fact that none of this would give Miyares pause is little surprise. He used to work as a prosecutor in Virginia Beach, and Colin Stolle, the commonwealth’s attorney there, has received his political endorsement.
Stolle is notoriously draconian toward the pettiest forms of lawbreaking. When Virginia still had a “habitual drunkard” statute that allowed commonwealth’s attorneys to petition to put homeless people with alcohol use disorder on a registry, making it a crime for them to even possess alcohol, the Virginia Beach Commonwealth’s Attorney Office used the statute more than any other—four times more often than the second-placed office. The law was later ruled unconstitutional by the Fourth Circuit Court of Appeals.
Miyares’ transition team is also troubling. One of its members, Lynchburg Commonwealth’s Attorney Bethany Harrison, worked for the Family Foundation, a nonprofit that seeks to “advocate for policies based on Biblical principles that enable families to flourish at the state and local level.” It works to ban abortion, and also trafficks in anti-transgender hate. As an assistant prosecutor, Harrison led a program to train local residents as “citizen-informants” to ensure more drug crimes got reported.
Another team member is Loudoun County Sheriff Mike Chapman, who staved off progressive Democrat Justin Hannah in 2019. Rather than focusing on crime, Chapman flings himself into culture wars (sound familiar?). Earlier this year, after some people complained about a local anti-racist parent group on Facebook, he launched a formal criminal probe for evidence of “racketeering” by the activists. It was also Chapman’s deputies who, at a recent school board meeting, decided to arrest and recommend the prosecution of the father of a student who was allegedly sexually assaulted—though it was Buta Biberaj, the district’s progressive prosecutor, who received death threats for the decision.
Virginia’s under-fire elected prosecutors have already announced their intent to resist the brazen moves of the Miyares administration.
Ramin Fatehi, the new Norfolk commonwealth’s attorney-elect, tweeted in response that “we are not going to let Jason Miyares feed mass incarceration for political points.” And after Tom Cotton, the hyperconservative US senator from Arkansas, praised Miyares for trying to strip the discretion of “pro-criminal Soros ‘prosecutors,’” Fairfax County Commonwealth’s Attorney Steve Descano tweeted that “we’re gonna keep building a system that treats working folks & communities of color fairly.”
Rory is a writer and licensed attorney. Originally published in Filter.