Our new attorney general is trying to make a name for himself. Adopting the play of Florida Gov. Ron DeSantis and attorneys general across the nation, Jason Miyares cultivates the “stop the steal” crowd with his proposal for an “election integrity commission,” and seeks to build a “tough on crime” image by undermining locally elected commonwealth’s attorneys and their “prosecutorial discretion” to charge and punish wrongdoers in their communities.
“Prosecutorial discretion” is a concept deeply embedded in American jurisprudence and argues that prosecutors should exercise their judgment in deciding who to charge for violations of the law, and what to recommend as penalties for conviction. Miyares’ first effort to undermine this tradition occurred in Virginia’s last legislative session. A bill was proposed by State Senator Ryan McDougle (R-Hanover), himself a former prosecutor, to give Miyares and future AGs the power to intervene in local prosecutions. The proposal drew little attention from the media, but it is part of a larger national effort by state lawmakers to undercut local prosecutors when their decisions are not to their political liking.
When McDougle offered this measure, Roe was still the law of the land, and it was months before the Supreme Court destroyed 50 years of a federal right to abortion with its decision in Many states, including Virginia, had ended their legislative sessions before the decision was rendered. Hence, most could do little to respond to the open letter signed by 89 prosecutors from across the country, including 9 in the Commonwealth, stating that they would For some state lawmakers, the prosecutors’ missive was tantamount to waiving a red flag in front of a bull. State lawmakers from Texas to Arizona have now passed, or will shortly consider, measures to prevent prosecutors from exercising discretion in these and other cases, and to remove those who refuse to administer the law to their liking.
Local prosecutors have been afforded great discretion, both in law and by tradition, for sound reasons, and state lawmakers rarely interfere. First, the prosecutors are elected and presumably have their pulse on community values. If their locality opposes their actions, they can be defeated at the ballot box. Second, this discretion is rooted in the founding of the nation and the ethics of the profession. Prosecutors have a higher duty than just putting violators in jail. A locally elected prosecutor, The U.S. Supreme Court opined, has a “heightened duty to ensure the fairness of the outcome of a criminal proceeding… to seek justice, not merely to convict.” Finally, most prosecutors are perceived as “tough on crime,” and there has been little appetite to attack their prerogatives so long as they aggressively prosecuted violations of the law. But the last decade has seen changes in who has been chosen for the prosecutorial role. A number of communities, including several in Virginia, have elected so-called “progressive prosecutors” who question traditional “tough on crime” approaches. Their positions range from the abolition of the death penalty to ending mandatory minimum sentences and cash bail. These views have prompted sharp criticism from conservative state legislatures across the country, which are not attempting to limit the power of these local attorneys to make decisions about their cases.
In 2019, Virginia elected several of these new prosecutors, including Arlington County attorney Parisa Dehghani-Tafti and Fairfax County attorney Steve Descano. Their decisions to stop prosecuting certain marijuana crimes were popular in their districts but not among Republican leadership in the Commonwealth. But it has been the actions of Loudoun County Commonwealth’s Attorney Buta Biberaj that have been the most controversial. The county schools are embroiled in a sexual assault case and parent groups have demanded that school board members be removed and that Biberaj intervene to prosecute the alleged wrongdoers. To date, she has declined to do so.
She has since been criticized by Gov. Youngkin for allegedly targeting the families of victims, some of whom have been charged with disrupting school board proceedings. A circuit court judge took the unusual (and some say unconstitutional) action of discharging Biberaj and her entire office from a criminal case in which she recommended an allegedly “lenient” plea agreement. Miyares immediately pounced, promptly asking the court to allow his office to take over the prosecution, and has since labeled Biberaj a member of the “far-left, criminal-first prosecutors.” The court declined Miyares’s request, but the political point was made, and the AG would have to be content with seeking new legislation like McDougle’s that allow the office to take over such prosecutions in the future. Biberaj has since sued, arguing that the judiciary has no power to remove her from a criminal case as she represents a separate branch of government—and is an elected official at that.
Present Virginia law and tradition allows the Attorney General to intervene in a local criminal proceeding under certain situations, but usually only if the Commonwealth’s attorney requests that assistance. This was the approach adopted by former AG Mark Herring, whose Major Crimes Initiative was based on using the department’s expertise in conjunction with the local prosecutors. McDougle’s bill would have expanded the AGs role to take on certain prosecutions, even if the Commonwealth’s Attorney had not requested assistance. And the AGs office took the lead in arguing for the measure.
Many Democratic and Republican Commonwealth’s Attorneys opposed the measure. The Senate Judiciary Committee, stocked with sharp attorneys such as Joe Morrissey, Creigh Deeds, and Scott Surovell, peppered the AGs office with questions. No one could dispute that the AG already has substantial power to intervene where appropriate and to assist, not supersede, elected prosecutors. Nonetheless, McDougle persisted, perhaps in hopes of placating an Attorney General and Governor who were elected on platforms suggesting that prosecutors in some communities were either fumbling their responsibilities, or worse yet, allowing social justice concerns to override what would otherwise be effective prosecutions.
The bill was ultimately rejected, partly because it could upend prosecutorial discretion, but also out of fear that if the Governor received the measure, he could easily amend it, and slide his changes past many in the Assembly who were not attorneys and might not understand the implications. Comparable bills had already passed the House and were headed to the Senate. If this major change was going to be stopped, it would be here. The measure narrowly failed, 8-7.
The Dobbs decision will likely intensify the increasing tensions between prosecutors in more liberal areas of the nation and conservative legislators who control statehouses. New bills are already being drafted to make it easier for AGs and even governors to remove local prosecutors whose decisions are not to their liking. Yet another front has been opened in the culture wars between Democrats and Republicans, and Virginia could again become a critical player in the engagement. The only reason that McDougle’s bill did not become law last year was that the Senate has Democratic majority. That could all end with the flip of one seat and the change of one vote in 2023. And Virginia may look more like its counterparts to the south than its recent emergence as a moderately-progressive state. Elections matter.