Virginia court's no-jail policy for marijuana possession could have consequences for immigrants
When the Arlington General District Court in Virginia this month adopted a policy of no jail time for possession of small amounts of marijuana, it was a progressive step that streamlines the criminal justice system. But it also rubbed up against tough immigration laws enacted years ago: No threat of jail means not having a court-appointed lawyer, and immigrants then face possible deportation, the Washington Post reported Friday.
Public defender and immigration advocates are, ironically, pushing back against reform because the criminal justice system and the immigration system are not in sync regarding drug possession. Under federal law, marijuana still is classified as a dangerous drug, and immigrants face deportation if convicted of possession.
“There’s lots of good reasons for this kind of program,” said Rachel Jordan, a senior attorney with the Capital Area Immigrants’ Rights Coalition, of the no-jail policy. “The problem is the unintended consequences for noncitizen residents of Virginia are so harsh that it really needs to be looked at again.”
Many state and local prosecutors around the nation no longer seek jail time for simple possession of marijuana, although in this instance the policy is that of the court. Some localities have decriminalized marijuana; Virginia state law prohibits that. The Arlington court’s policy is for possession of a half-ounce or less.
“It’s a problem creeping up around the country as jurisdictions are strapped for assets,” said Barry Pollack, president of the National Association of Criminal Defense Lawyers. “Particularly in an administration that has promised extremely aggressive enforcement of the immigration laws and an emphasis on deporting individuals who have criminal convictions, the consequences of a conviction can be far greater than a couple of days in jail would be.”
Even legal immigrants might be harmed by such a guilty plea. If they leave the country, it could keep them from being able to return.
Arlington Public Defender Matthew J. Foley said no jury in his jurisdiction would sentence a defendant to jail for marijuana possession, and his office often contests such cases and wins, such as when marijuana is found in a car carrying multiple passengers.
In nearby Washington, D.C., and Maryland, possession of small amounts of marijuana is no longer a crime, said Arlington County Commonwealth’s Attorney Theo Stamos, adding that the Arlington court’s new policy is a step forward.
“This is a sensible criminal justice system effort, and I’m really astounded and confused that the public defender’s office is asking us to impose jail time on their clients,” she said.
In 2015, the Virginia Supreme Court ruled that judges must inform immigrants charged with misdemeanors that a guilty plea could have a serious impact on their immigration status, the Washington Post reported.
Foley, the public defender, argued that such defendants are often unsophisticated and lacking resources. “It will help no more than a doctor advising an uninsured, cash-strapped patient how to remove his tonsils, set a broken leg or cure his cancer,” he wrote in a letter to Arlington community leaders.
Many jurisdictions around the country have scaled back enforcement of laws for possession of marijuana. From 2003 to 2013, marijuana arrests in Virginia increased 76 percent; and in Arlington they went up 81 percent, according to the Drug Policy Alliance, which advocates for legalization of the drug.
