Prosecutorial Discretion

Prosecutorial Discretion

Northern Virginia prosecutors say they won't enforce abortion restrictions.

Nine prosecutors across Virginia say they will not enforce any new restrictions on abortion, complicating Republican efforts to crack down on reproductive freedom in the wake of the Supreme Court decision in Dobbs versus Jackson Women's Health Organization. The nine prosecutors include most of Northern Virginia, including Fairfax County Commonwealth’s Attorney Steve Descano, Arlington Commonwealth’s Attorney Parisa Dehghani-Tafti and Alexandria Commonwealth’s Attorney Bryan Porter. 

"Not all of us agree on a personal or moral level on the issue of abortion," the prosecutors wrote in the joint statement. "But we stand together in our firm belief that prosecutors have a responsibility to refrain from using limited criminal legal system resources to criminalize reproductive health decisions."

The letter was released by a criminal-justice reform nonprofit organization known as Fair and Just Prosecution, which is financially supported by the California-based Tides Center. It included 88 elected prosecutors from across the country, including district attorneys and attorneys general. Here in Virginia, the nine commonwealth's attorneys are elected and have nobody to answer to but voters.

"I hope that people of the commonwealth pay attention to prosecutors who claim that they have the discretion to enforce the law of the commonwealth and take note of that the next time there's an election," said Steve Aden, chief legal officer and general counsel at Americans United for Life.

Commonwealth's attorneys in Virginia have wide latitude to decide which cases they want to pursue. That prosecutorial discretion was recently strengthened by a bill introduced by Sen. Scott Surovell (D-36), which was prompted by Circuit Court judges in Arlington and Norfolk who refused to dismiss marijuana possession cases after prosecutors requested dismissal. So Surovell introduced a bill in the 2020 session to force judges to dismiss cases under those circumstances, and former Gov. Ralph Northam signed it into law.

"If a prosecutor moves to dismiss an abortion prosecution, and the defense says they're fine with that a court would have to grant a dismissal," said Surovell. "If we had not passed that law, it would have been a bit more complicated."

Judges still have some authority to determine what happens with prosecutions. Loudoun Circuit Court Judge James Plowman recently threw Commonwealth's Attorney Buta Biberaj off a case when he determined that a plea deal she struck was too lenient. So the protections for prosecutorial discretion are not absolute. And if Republicans were able to get the votes to outlaw abortion, they could also have the votes to pass a bill that undermines prosecutorial discretion and allows the attorney general to step in and try cases.

"As long as I'm commonwealth's attorney, in Fairfax County we will not prosecute a woman or a provider for making her own healthcare decisions," said Steve Descano, commonwealth's attorney in Fairfax County. "My obligation is to public safety, and I know that abortion bans don't keep our community safe. All they do is actually lead to more loss of life because abortion bans just force women into back-alley abortions, which lead to more death."