Prosecutor Wants New Diversion Program for Marijuana Posession Cases

Sep 24, 2019

Marijuana is still illegal in Virginia, but some prosecutors across the Commonwealth are now taking new approaches.

A diversion program in Alexandria that takes a new twist on a familiar problem.

Marijuana convictions can ruin lives — lost jobs, missed educational opportunities and a haunting legal specter that is resurrected every time a potential employer does a background check.

Alexandria Commonwealth's Attorney Bryan Porter says even people who participate in diversion programs can’t really shake it.  “The fact that they participated and had the charge dismissed remains on their criminal record. It’s always there and it can never be removed under any circumstances,” Porter notes.

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Defendants can only participate once, and that’s only if they can afford all the court costs.

“My new diversion policy goes farther than that,” says Porter.  Alexandria’s elected prosecutor has a new diversion program where defendants do not have to plead guilty. They can participate in the diversion program multiple times. And forget about all those fines and fees because the clerk’s office never gets involved.   “There are no court costs or fines associated with the diversion program because it’s basically administered by my office. It’s not something the court is administering.”

The idea that a program not administered by the court could dispatch charges brought by police raises red flags for legal expert Rich Kelsey.  “His program goes farther than the state statute allows, and to me that means he’s stepped outside the bounds of his proper authority,” Kelsey argues.

The General Assembly created the current diversion program, the one for first-time offenders that leaves a lasting record of conviction. Lawmakers never approved the Alexandria program.  "And the prosecution freely admits that this person has violated the law. But they want to set up a program that does not on the books in order to handle it in a fashion that the legislature has not permitted,” Kelsey says.

Critics say what the legislature has permitted isn’t working. Maya Castillo at New Virginia Majority says enforcement has been disproportionate.  “African-Americans are almost four times more likely to be arrested for marijuana possession than white users despite equal rates of use.”

So she says she welcomes Alexandria’s new diversion program, and she’s hoping people who have convictions on their record right now can get them removed.  “We’ve seen some places where marijuana convictions are being completely expunged from thousands and thousands of records," Castillo says. "So we look forward to being part of that national trend.”

A trend that extends to a number of other criminal justice reform efforts beyond decriminalization. Earlier this year, two Northern Virginia prosecutors in Fairfax and Arlington lost their jobs to progressive challengers from the left who wanted to get rid of the cash bail system and eliminate the death penalty. Ultimately, though, judges may have the final say on all these efforts.

This report, provided by Virginia Public Radio, was made possible with support from the Virginia Education Association.