Virginia Strengthens Prosecutorial Discretion

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by | October 23, 2020

The General Assembly has been meeting in a Special Session to address Criminal Justice Reform, and new legislation – such as HB5062 -has been passed that should be a significant boon to protecting the rights of Virginians. Both houses of the General Assembly have passed HB5062, which was approved by Gov. Northan. This law expands two aspects prosecutorial discretion which should help Virginians avoid unnecessary convictions.

The law can be, and too often is, harsh. Prosecutorial Discretion – the role of a prosecutor in deciding whether or not to prosecute any given case – is an important way we can soften the impact of the law on Virginians.

Nolle Prosequi

One way this has been done in Virginia is through something called Nolle Prosequi, which is a Motion of the Commonwealth to dismiss a prosecution. This can be done for a variety of reasons, and helps avoid unreasonably harsh outcomes. Sometimes this happens because the evidence just isn’t there. Other times, frankly, it can be done just because it is the right or reasonable thing to do.

Recently, there was a dispute in Arlington County about the authority of the Commonwealth’s Attorney to ‘Nolle Prosse’ broad classes of cases (in this instance, marijuana possession).

The General Assembly has addressed this by ensuring that prosecutors can dismiss cases that they feel do not warrant prosecution, without having to justify every such decision to a Judge.

This means more common-sense in prosecution, and is a good thing for criminal justice in Virginia.

Deferred Disposition

As mentioned above, the law can be harsh. It is also often inflexible. But there are areas where creative solutions can be found. One such example is Deferred Dispositions.

This creative solution has been largely relegated to drug related offenses. HB5062 expands the use of this solution.

A Deferred Disposition is an agreement to defer proceedings in a criminal case to a later date. In the meantime, there will be some set of requirements for the Defendant to complete or abstain from (e.g; attend certain classes, avoid drugs or alcohol, etc.). The parties will then typically agree that the charge will be Dismissed after these requirements are met, at a date agreed upon. These agreements may require the Defendant to admit to some amount of culpability beforehand, and doing so may effect whether or not the charge can be expunged. Deferred Dispositions are an invaluable tool to address criminal charges while avoiding a conviction.

The expansion of this tool will be a benefit to criminal defendants across the Commonwealth.