In November, voters get to orient prosecutorial discretion and immigration policy in Virginia’s second most populous county.
To appreciate the impact of prosecutorial discretion, take a look at Paul Ebert, the commonwealth’s attorney of Prince William County, Virginia for 51 years.
In 2011, a federal judge faulted Ebert for having withheld exculpatory information in the case of Justin Michael Wolfe; the judge vacated Wolfe’s conviction and death sentence. “Commonwealth Attorney Ebert testified … that he employs a practice of withholding information from counsel and defendants with the intent of preventing them from establishing a defense around what the information provides,” U.S. District Judge Raymond Jackson wrote. This was routine for Ebert: Jackson blasted Ebert’s broader failure to institute an open-file policy in his office, which would mean sharing the information regarding a case with the defense. Ebert’s choices “served to deprive Wolfe of any substantive defense in a case where his life would rest on the jury’s verdict,” Jackson wrote, calling this “abhorrent to the judicial process.”
Coming as they did in a capital case, these findings were concerning given Ebert’s predilection for the death penalty. Ebert has put Prince William County on the death penalty’s national map over his five decades in office—he obtained more death sentences than any other Virginia prosecutor—and he did it with such policies that were not attentive to defendants’ rights.
Ebert is not seeking re-election this year, and the next prosecutor’s discretion will be just as wide as his was. The death penalty remains legal, and statewide efforts to mandate that prosecutors turn over information during discovery have been delayed.
The concurrent retirement of Corey Stewart, the far-right chairperson of the Prince William County Board of Supervisors, guarantees still more overhaul in local leadership. His departure opens the door to changes in immigration policy in particular.
The fate of Prince William County’s partnership with ICE likely hinges on the sheriff’s race and on the elections for board of supervisor.
Death penalty, discovery, and decarceration: What contrasts on prosecution?
Two candidates are facing off in the general election, scheduled for November: Democrat Amy Ashworth, a private attorney and former assistant prosecutor, and Republican Mike May, a former member of the county’s Board of Supervisors. May also ran in 2015, narrowly losing to Ebert in what was the incumbent’s first contested re-election bid in two decades. Besides Prince William County, the jurisdiction also covers Manassas City and Manassas Park City.
In his first run for prosecutor in 2015, May faulted Ebert for his insufficient transparency. “If the perception is that the prosecution is withholding evidence, that sows the seeds of distrust,” he reiterated to the Political Report. He said he would institute an open-file system, and use electronic means to share information “to the maximum extent practicable.” Ashworth also believes that “the defense must be provided with all information about a case,” and this in a “timely, complete, and efficient manner,” a spokesperson told the Political Report. She did not specify whether Ashworth would do so electronically, noting that the means would depend on the “complexities of the case.” Neither provided guidelines with regards to a precise timeframe; how early prosecutors share information can be crucial to a fair defense.
Ashworth is more direct when it comes to questioning reliance on incarceration. Her website criticizes the jail expansion the county is currently pursuing. “I firmly believe that building more jails and prisons is never the answer,” she writes. “We need to start diverting people away from the prison system.”
May voted in favor of this jail expansion when he was a member of the Board of Supervisors. He told the Political Report that this vote means he has “seen firsthand how expensive incarceration is.” Asked about decarcerative reforms he favors, May mentioned diversion programs that “keep nonviolent offenders out of jail,” but specified no avenues to further expand such programs.
In her interview with the Political Report, Ashworth made the case that “it is not smart to focus on prosecuting victimless crimes like drug possession.” She said that she would seek to avoid “conviction or incarceration” for “the vast majority” of marijuana possession cases, and that she would seek to divert “many first offender nonviolent misdemeanors.”
May took issue with Ashworth’s stance on marijuana. Avoiding “conviction or incarceration” beyond a first offense, he said, was equivalent to legalizing marijuana “by prosecutorial fiat.” But Ashworth herself repeatedly qualified the scope of her reform proposals; she restricted her openness to diversion to “first offenders,” and said she opposed policies that involve altogether declining to prosecute a certain category of charges, including those involving marijuana. There should still be penalties because “that is the point of the criminal justice system,” she said.
Both candidates’ positions on these matters are a far cry from the declination policies adopted by prosecutors like Boston’s Rachael Rollins, and from the proposals made by other Virginia candidates to also modify prosecutorial approaches to higher-level offenses or repeat charges.
But when it comes to a big issue driving incarceration—pretrial detention—Ashworth told the Political Report that she would “stop the use of cash bail to reduce the jail population.” This is a consequential change that is championed by some local politicians. May did not make such a commitment, conditioning bail reform on other changes to pretrial programs.
Contrasts emerged elsewhere too. Both candidates said they would be open to seeking the death penalty if they became prosecutor. Only Ashworth added she would use it more rarely than Ebert. “When I’m elected, this trend will stop,” she said.
Ashworth also stated support for legislation to legalize or decriminalize marijuana. May declined to take a position on either of those proposals, saying instead that the legislature should let people expunge first-time marijuana possession convictions.
The candidates diverge, finally, on a heated local issue: What should happen with the county’s close partnership with ICE?
A contract with ICE is on the line
Prince William is one of two Virginia counties in ICE’s prized 287(g) program, which authorizes local law enforcement officers to act like federal immigration agents within jails. The program has led thousands to be deported since 2007 in this county, and it has been met with organized opposition from immigrants’ rights advocates. “It creates a culture of fear, it creates a lot of internal trauma,” Monica Sarmiento, executive director of the Virginia Coalition for Immigrant Rights, told the Political Report. “Immigrants are scared to call the police because of the fear of deportation.”
Ashworth advocates ending the contract, while May supports its maintenance.
The commonwealth’s attorney does not control the future of this partnership. Still, the fate of 287(g) is on the line this year because of other local elections that are scheduled for November.
Many counties grant sheriffs sole authority over 287(g) contracts, but Prince William County has unusually complicated rules. ICE has entered a contract with the 11-member board of the Prince William – Manassas Regional Adult Detention Center, and a decision to terminate the agreement rests with that group.
The sheriff has a seat on this jail board; most other members are appointed by the county’s board of supervisors, whose chairman—the retiring Stewart—has relentlessly championed ICE since 2007. This fall, voters are electing a sheriff as well as their board of supervisors.
The contract with ICE looms large in those elections, which are expected to be competitive. The GOP currently holds the sheriff’s office and a majority on the board of supervisors, despite the fact that the county voted for Hillary Clinton by 21 percentage points in 2016.
Sheriff Glenn Hill, who favors 287(g), is running for reelection. His opponent is Democrat Josh King, who has said ending this contract would be a priority. “I will use both my vote on the jail board and my influence with the new and hopefully Democratic-controlled board of supervisors to end this Corey Stewart-era policy,” he told Inside Nova. “Ending this policy is the first step in rebuilding trust between law enforcement and our majority-minority community.”
The other high-profile election is the race to replace Stewart as chairperson. Contenders are Republican John Gray, who is mirroring Stewart’s views on immigration and favors 287(g), and Democrat Ann Wheeler. The Political Report could not identify a public record of Wheeler’s position on 287(g). She did not reply to multiple requests for comment about her views.
The results of the prosecutorial election could also impact immigration policies. The next commonwealth’s attorney may not control the 287(g) contract, but the office wields direct power over the lives of immigrants in other ways. Charging decisions determine whether a defendant becomes vulnerable to deportation. Ashworth told the Political Report that she would take the potential for such consequences into account when processing cases.
“That’s when you use your prosecutorial discretion and fashion a remedy so that you can exact justice and you can make sure that the person is made whole,” Ashworth said.