Virginia Supreme Court panel: Norfolk prosecutors can’t just dismiss marijuana cases

Posted at 10:57 PM, May 02, 2019

NORFOLK, Va. - Commonwealth's Attorney Greg Underwood can't just dismiss marijuana possession cases, the Virginia State Supreme Court ruled on Thursday.

In a six-page ruling, three justices ruled against Underwood, who earlier this year announced his office would stop prosecuting simple marijuana possession cases when they reach his office often on appeal in the circuit court.

Underwood has said his prosecutors would dismiss the cases, but some circuit court judges weren't on board and refused to dismiss without justification. Underwood took his case to the state's highest court, arguing he has the authority to dismiss. Justices disagreed with each of his arguments.

"The Norfolk Circuit Court had a good faith basis for its position, as did this Office.  Seeking a decision from the Virginia Supreme Court was the next appropriate action and Greg Underwood is pleased to now have the Court’s decision," said Amanda Howie, a spokesperson for the Commonwealth's Attorney's Office. "He’s aware all of this generated a significant amount of conversation - by those in criminal justice and the public in general - and appreciates that those discussions will likely continue going forward."

From here, prosecutors will continue to withdraw from the cases, but won't be immediately dismissing the charges, said Howie. Judges can decide how to try the cases, just like they would in General District Court where prosecutors already don't prosecute misdemeanors.

"I think it's an example of a Commonwealth's Attorney leveraging what powers and discretion they are afforded to make as much of an impact on their community as possible," said Jenn Michelle Pedini, the executive director of Virginia NORML. The group wants to see Virginia's marijuana laws changed.

In an office memorandum, Underwood says about 80% of first-offense marijuana possession arrests in Norfolk were African Americans in 2016 and 2017. Meanwhile, the city's population is just 43% African American, he said.

Across the water in Portsmouth, Commonwealth's Attorney Stephanie Morales rolled out a similar policy, but has been met with more support from the city's judges.