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New Fairfax County Commonwealth’s Attorney Steve Descano took office on Jan. 2 looking to fulfill campaign promises to implement progressive policies, including leniency in simple marijuana possession cases.

Steve Descano did not wait long to make an impact as Fairfax County’s new top prosecutor.

The commonwealth’s attorney announced on Jan. 2, his first official day in the position, that his office will no longer prosecute adults for having small amounts of marijuana for personal use, a clear shift from the more by-the-book approach of his predecessor, Raymond Morrogh.

“When I raised my hand and took the oath of office, I also dedicated myself to serve our community by providing justice for all to the best of my ability,” Descano said. “Therefore, consistent with a prosecutor’s duty to seek justice and my dedication to our community, I have directed my office to dismiss prosecutions of adults for simple possession of marijuana.”

Unless the substance was obtained with a valid prescription or a professional practitioner’s order, possession of marijuana is a misdemeanor under the Code of Virginia with a punishment of up to 30 days in jail and a $500 fine.

In a policy directive for the Fairfax County Office of the Commonwealth’s Attorney, Descano argues that simple possession of marijuana does not significantly affect public safety enough to justify the amount of time and money expended by law enforcement, courts, and prosecutors on those cases.

According to data obtained from the Supreme Court of Virginia’s Office of the Executive Secretary, Fairfax County police arrested or issued court summons to people for marijuana possession 11,937 times between 2017 and 2019, costing the department more than $2.9 million just in employee compensation since officers get higher hourly wages for court appearances.

Police officers routinely appear at two or three court hearings for every marijuana possession case and earn $52.15 per hour when in court compared to the standard $34.77 hourly wage for patrol officers, according to the Fairfax County commonwealth’s attorney.

When costs carried by the court, commonwealth’s attorney’s office, and the Virginia Department of Forensic Science’s laboratory facility are taken into account, Virginia spends an estimated $81 million annually on marijuana enforcement, Descano’s office says.

In addition to placing a burden on law enforcement and court officials, research shows that the criminalization of simple marijuana possession disproportionately affects people of color.

A 2017 analysis of Virginia State Police data by Capitol News Service found that black people are three times more likely than their white counterparts to be arrested on marijuana charges. In Fairfax County, 861 out of every 100,000 African American residents are arrested for marijuana possession during an average year compared to 265 out of every 100,000 white residents, making the arrest rate 3.2 times higher for black people than white people.

Fairfax County NAACP president Sean Perryman says Descano’s decision to have his office dismiss prosecutions for simple marijuana possession is a “positive first step” toward making the county’s criminal justice system more equitable.

Beyond the immediate consequences of an arrest, including court costs and a possible fine and jail time, people convicted of simple possession of marijuana face long-term ramifications with a permanent criminal record that might affect their ability to find future housing or employment. 

“I think [the new policy] will make things a little bit more fair, because we know right now that there’s a great disparity in the arrests for marijuana possession,” Perryman said. “…We’ve been over-criminalizing African Americans and people of color for something that really doesn’t pose a threat to our community or state.”

The commonwealth’s attorney’s directive to dismiss simple possession cases does not extend to charges of possession with the intent to distribute or conspicuous public use of marijuana.

Under the new policy, prosecutors determine on an individual basis whether the facts of a case qualify as simple possession, taking into consideration the full circumstances and all relevant factors, including the amount of the drug present, packaging and division, and any accompanying paraphernalia.

The commonwealth’s attorney’s office will continue to prosecute crimes arising from marijuana use and abuse, such as impaired driving and illegal street sales, but those issues can be addressed without prosecuting solely for simple possession, according to Descano’s directive.

The policy also does not apply to juveniles, since juvenile arrests for misdemeanors like simple marijuana possession are not publicly disclosed and automatically get expunged after a set period of time. Youths are also dealt with more informally with the commonwealth’s attorney’s office only getting involved if an individual has had repeated contact with the juvenile justice system.

Descano says his team was deliberate and thoughtful in crafting the directive to dismiss simple marijuana possession charges, which he cited as a priority throughout his election campaign last year.

“I traveled around Fairfax County for over a year talking to people about what they needed and what they wanted to see from the criminal justice system, what their values were,” Descano said. “The thing that I heard over and over again was that prosecuting people for simple possession of marijuana was a waste of resources, a waste of money, of time, [and] didn’t accord with people's values in the community.”

In addition to getting feedback from the public, Descano says his team had conversations with local police before officially announcing the policy change.

The Fairfax County Police Department declined to comment on the new policy, directing related inquiries to Descano’s office.

The Washington Post reported on Jan. 2 that six defendants had marijuana possession charges dismissed on the first day that the policy went into effect in Fairfax County.

However, in the very first case where the policy was applicable, a general district court judge expressed skepticism of the commonwealth’s attorney’s blanket policy of dropping all simple marijuana possession cases and initially denied a request to dismiss the case argued by Chief Deputy Commonwealth Attorney Terry Adams.

Fairfax County General District Court Judge Mark Simmons later reversed his position and dismissed the possession charge against the defendant after a public defender stepped in to represent him, according to the Post.

Descano says the overall response to his policy announcement has been positive with local and state officials, including Sen. Adam Ebbin (D-30th) and Herndon Town Councilmember Cesar del Aguila, expressing support.

“As Fairfax County’s only male Latino elected official, I know the devastating effect that results from a breakdown of trust between a community and its criminal justice system,” del Aguila said. “This kind of thoughtful, values-first policy shift shows that our criminal justice system is dedicated to going after real criminals, and not rounding up otherwise law-abiding individuals for victimless offenses.”

While he did not share details about any other upcoming policy moves, Descano told the Fairfax County Times that he remains committed to the progressive reforms that he outlined during his 2019 campaign, which saw him win the Democratic nomination over three-term incumbent Ray Morrogh before defeating an independent candidate in November.

Descano’s general election opponent, former federal prosecutor Jonathan Fahey, was backed by a number of prominent representatives from the Northern Virginia law enforcement and criminal justice communities, including Morrogh.

In addition to promising to halt prosecutions of simple marijuana possession, Descano pledged to eliminate cash bail and the death penalty. He also proposed prioritizing gun crimes and directing prosecutors to be mindful of a defendant’s immigration status when making charging and plea decisions.

While he applauded Descano’s new policy regarding marijuana possession charges, Perryman says marijuana needs to be legalized before Virginia can fully address inequities in its criminal justice system.

Virginia Attorney General Mark Herring expressed support for decriminalizing marijuana with eventual legalization in an opinion piece published by The Daily Press on June 15 and hosted a cannabis summit for policymakers and stakeholders in December.

Gov. Ralph Northam included decriminalizing marijuana in a criminal justice reform legislative package unveiled on Jan. 3. The proposed bill would instead impose a $50 civil penalty and have past simple possession convictions expunged from individuals’ records.

Decriminalizing marijuana would put Virginia more in line with its regional neighbors in Washington, D.C., which legalized marijuana possession under certain circumstances in 2015, and Maryland, which decriminalized the possession of up to 10 grams of marijuana in 2014.

“I think ultimately we need to be preparing for legalization of cannabis, and I think by stopping the enforcement of these prosecutions, we’re making a positive change,” Perryman said.

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