Decriminalization and legalization of marijuana has been a hot topic around the United States for decades.
On Jan. 3, Norfolk’s top prosecutor, Gregory Underwood, ignited a fire of his own, releasing a letter saying he will not prosecute misdemeanor marijuana possession cases.
Underwood’s office already does not prosecute misdemeanor pot charges, but some cases still come to Commonwealth’s Attorney Greg Underwood’s office on appeals or when attached to other misdemeanor or felony charges. In the letter, Underwood writes that his office “will cease prosecuting all misdemeanor marijuana possessions cases and will be to nolle prosequi or dismiss such cases.”
Underwood wrote “consistent budget reductions for 5+ years” to his office must be met with a balanced “change to the allocation of proprietorial resources.”
During a September 2018 event sponsored by Virginia NORML, Underwood was explicit in his opinions on marijuana law reform.
“I believe in legalizing marijuana,” Underwood said.
He said he believes the city can play a big role in changing the law.
“I think what the city can do is talk to their delegation, their general assembly delegation, and try to get legislation passed that will either decriminalize marijuana or legalize marijuana,” Underwood said.
In Virginia Beach, Commonwealth’s Attorney Colin Stolle said it’s up to legislators to change the law, if warranted.
His job is to enforce it.
“The General Assembly makes the laws, Stolle said. “It is my responsibility as the elected Commonwealth’s Attorney to prosecute violations of the laws that the General Assembly passes.”
Stolle said it is inappropriate for a prosecutor to essentially create their own set of laws in their jurisdictions.
“The proper place to address this issue is with the legislature,” he reiterated.
In the Peninsula, Williamsburg-James City County Commonwealth’s Attorney Nathan Green said he is not an opponent of marijuana decriminalization or legalization, but doesn’t believe it’s his place to decide which parts of the law he prosecutes.
“I took an oath to uphold the law of Virginia and it’s not my place to tell the legislature ‘You missed the boat on this one, I’m not going to prosecute it,’” Green said.
Green said he always reviews the facts of a case before he decides whether he is going to prosecute it. He said prosecutorial discretion is “an incredibly important thing” but case-specific.
York County and Poquoson Commonwealth’s Attorney Benjamin Hahn echoed Green’s opinion, adding his office prosecutes many misdemeanor offenses that “other offices do not prosecute.”
“Likewise, we continue to prosecute possession of marijuana cases because the General Assembly, in its infinite wisdom, has determined that possession of marijuana should be unlawful because use of the drug is contrary to the public interest,” Hahn said in an emailed statement Tuesday.
Further, Hahn said he did not believe law enforcement makes a concerted effort to seek out and charge individuals with marijuana possession offenses, but rather they “stumble upon such illegality.”
“Surely it is not in the public interest for law enforcement officers and/or prosecutors to ignore a law they have sworn to uphold because they disagree with the law or, worse, because they seek to reap political benefit by doing so,” Hahn said.
The Virginia Association of Commonwealth’s Attorneys reviews matters and, if members agree on a particular issue, the group will lobby or go to the General Assembly.
Green is a member of VACA. He said the group has not come to a consensus on whether marijuana laws should be changed. He said the opinions have ranged from decriminalization to legalization and everything in between.
“I’m not one that says ‘Hey, it’s good the way it is, there should be no changes,’” Green said.
Green believes legalization would require a lengthy period of preparation to ensure any marijuana sold would be done safely and in a regulated way.
“Marijuana technology people have access to, that is not what many of our parents grew up with,” Green said. “They can produce marijuana with record levels of THC. Just like you can brew moonshine with a high alcohol content.”
Even if marijuana was legalized and regulated, Green said it could increase intoxicant-related crimes such as driving under the influence.
In the statement, Hahn said his office’s prosecution of marijuana possession charges does not mean it “reflects any agreement with the wisdom of the legislation.”
“Many years ago, when I was a City Attorney, I would remind the governing body that it was not my responsibility to keep them from enacting foolish laws but only to keep them from breaking the law,” Hahn said. “The General Assembly, as the elected representatives of the citizens of Virginia, is uniquely qualified to weigh the competing societal interests regarding marijuana. I do not believe it is proper for members of the Executive Branch to substitute their judgment for that expressed by the elected representatives of the people.”