Opinion: Letter to the Editor: Prosecutorial Discretion?

Opinion: Letter to the Editor: Prosecutorial Discretion?

When one is elected Commonwealth Attorney of a jurisdiction in Virginia, an oath of office is taken in which the elected officer swears to support the Constitutions of the United States and Virginia and to faithfully and impartially discharge all the duties incumbent upon them in that office. A Commonwealth Attorney is obligated to enforce all the laws of the Commonwealth of Virginia as enacted by the General Assembly and signed into law by the Governor or through override of a veto, not just those he or she favors.

Fairfax County voters elected Steve Descano as their Commonwealth Attorney. He will take office on Jan. 1, 2020. During the election, Mr. Descano made several campaign promises. He promised that his office will not "prosecute simple possession of marijuana." He also promised that for thefts that do not exceed $1,500 in value, he will charge such crimes as a misdemeanor even though the felony threshold is now $500 which he described as "much too low," and even though only a few years ago, the felony threshold was $200. He also promised that he will not "seek the death penalty" for any crime for which the death penalty might be available.

The concept of "prosecutorial discretion" is important to understand. Prosecutorial discretion is properly applied on a case by case basis, not across an entire category of cases. Thus, if under the facts and circumstances of a particular alleged crime, a prosecutor decides to prosecute the particular defendant in a manner resulting in a lower penalty than statutorily mandated, such action is perfectly appropriate. On the other hand, when a prosecutor decides to refrain from prosecuting an entire class of cases without regard to the individual facts of each case, this is not the exercise of prosecutorial discretion. Rather, it falls within the categories of neglect of duty and misuse of office.

Sections 24.2 - 233 and 235 of the Virginia Code provide the procedure by which voters can remove elected officials from office for reasons including neglect of duty or misuse of office. I predict that if Mr. Descano follows through on his campaign pledges and decides to refrain from prosecuting sweeping categories of crimes that are the law in Virginia, Fairfax County voters will quickly start the process for removing him from office, as they should. Mr. Descano's campaign pledges, if fulfilled, will not go unnoticed by the criminal element. They are likely to result in an increase in the number of crimes committed in Fairfax County.

H. Jay Spiegel

Mount Vernon