Bacon's Rebellion

Democracy Thrives in Sunlight

Commonwealth Attorney Nullification

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by

James A. Bacon
in

Steve Descano. Photo credit: WTOP

Steve Descano has written an op-ed piece in The New York Times. Should the U.S. Supreme Court roll back Roe vs. Wade, says the Fairfax County Commonwealth Attorney, he will never prosecute a woman for having an abortion — “no matter what the law in Virginia says.”

The CA provides several reasons for opposing blanket abortion laws, some of which I think are legitimate. He should use whatever political influence he has to ensure that draconian anti-abortion laws are never enacted in the Old Dominion.

But I do worry when elected prosecutors pick and choose the laws they enforce. Should the Commonwealth Attorney be allowed to nullify any law he dislikes for the one-in-eight Virginians who live in Fairfax County? If so, by what logic should not every Commonwealth Attorney be allowed the same prerogative? What if, to pick an equally controversial example, CAs in conservative rural counties refused to prosecute gun-control laws?

This is the path to anarchy.

— JAB

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43 responses to “Commonwealth Attorney Nullification”

  1. vicnicholls Avatar
    vicnicholls

    Agree.

  2. James McCarthy Avatar
    James McCarthy

    Indeed, nullification of laws by officials is concerning especially when public safety is at stake. Such was the case for some sheriffs who proclaimed they would not enforce red flag court orders.

  3. Bob X from Texas Avatar
    Bob X from Texas

    Virginians need to have more abortions to make room for illegal aliens. Thank you Steve Descano.
    FJB, FSD

  4. walter smith Avatar
    walter smith

    We’ve been on the path to anarchy for quite a while.
    Sanctuary cities?
    Illegal mandates?
    Rioting for racial justice is A-OK.
    Bail is racist, except for J6 insurrectionists when it is required.
    Statues hurt people.
    Speech is violence (when we disagree, and Libs disagree with anything that mirrors common sense)
    Our misinformation is good, but conservatives speaking truth is misinformation and must be suppressed.
    This societal decay has been going for a long time…

  5. James Wyatt Whitehead Avatar
    James Wyatt Whitehead

    John C. Calhoun would agree with Descano.
    https://uploads.disquscdn.com/images/be9a85d4a227b20d0538265bb9481c65af5d830ef06e6cbdbe71e464d4fa4e4c.jpg

  6. Eric the half a troll Avatar
    Eric the half a troll

    Opting not to prosecute is not the same as nullification. I agree that any prosecutor can exercise their discretion as they see fit (and the electorate may rebel if they disagree). This is true regardless of ideology. Passing a law specifically nullifying a federal law is unconstitutional and will be overturned in the court.

  7. James Wyatt Whitehead Avatar
    James Wyatt Whitehead

    I wonder what Descano’s plans are for SB 36 signed into law today by Youngkin. Schools must report assaults, threats, guns and drugs to law enforcement. Furthermore, allows local law enforcement and the commonwealth’s attorneys to disclose “information regarding terms of release from detention, court dates, and terms of any disposition orders entered by the court, to the superintendent, if in the determination of the law-enforcement authority or attorney for the Commonwealth, such disclosure would not jeopardize the investigation or prosecution of the case.”

    The best part. Principals notifying parents of targeted children “shall report whether the incident has been reported to local law enforcement,” and parents can choose to contact investigators for more information. I like that. Good law.

    School administrators might be reluctant to dodge reporting. A division superintendent who knowingly fails to comply or secure compliance with the reporting requirements of this subsection shall be subject to the sanctions authorized in § 22.1-65. A principal who knowingly fails to comply or secure compliance with the reporting requirements of this section shall be subject to sanctions prescribed by the local school board, which may include, but need not be limited to, demotion or dismissal.
    https://wtop.com/virginia/2022/05/new-va-law-will-require-more-school-crimes-be-reported-to-law-enforcement/
    https://lis.virginia.gov/cgi-bin/legp604.exe?221+ful+CHAP0793

  8. f/k/a_tmtfairfax Avatar
    f/k/a_tmtfairfax

    I think James’ point on abortion is correct. Virginia has laws that address abortion and do not rely on science fiction.

    If a commonwealth’s attorney doesn’t want to uphold the law and prosecute when the facts warrant it, he/she should do the honorable thing and resign. It’s wrong for a law to be enforced in one part of a state and not others.

    There is a guy running for district attorney in Wake County who signs read to the effect of Vote for me. I won’t prosecute marijuana cases. I think that this is simply wrong and creates a real issue as to whether the attorney should be permitted to remain an attorney.

    1. James McCarthy Avatar
      James McCarthy

      What law is to be upheld should Roe be overturned? Descano says he will not prosecute a woman for having an abortion. In the absence of Roe, abortion is legal in VA.

      1. f/k/a_tmtfairfax Avatar
        f/k/a_tmtfairfax

        Virginia has a statute that permits abortion and regulates it. Should Roe be overturned, the state law would continue to apply. As I understand it, the state law generally permits abortion on fairly liberal terms. I believe North Carolina’s statutes are similar.

        It’s time for Congress to address abortion by statute like most other countries do. The Democrats have generally controlled at least one house of Congress and generally two since Douglas’ science fiction in Griswold was issued in 1965. They should have passed a federal law providing both protections and regulations, most especially during the Johnson, Carter, Clinton and Obama administrations.

        It’s time for the legal profession to insist Congress do its job and to reprimand the courts for writing BS in lieu of reasoned analysis.

        1. James McCarthy Avatar
          James McCarthy

          As a retired member of the legal profession, I devote a great deal of time and effort to assisting others to a fuller understanding of current issues. What Congress should have done is moot. Five decades of precedent should have been sufficient. Marbury v Madison is equally science fiction, devolved from Constitutional ether. Heller v DC discovered no text in the Constitution affirming the 5-4 conclusion about the Second Amendment.

          VA’s abortion statute follows the outline of the SCOTUS cases on the subject.

          1. f/k/a_tmtfairfax Avatar
            f/k/a_tmtfairfax

            Have you read the text of the Assize of Arms? One of its provisions prohibited Jews from having arms. Non-Jews could have arms. Add that to the other language and it’s crystal clear that Englishmen had a personal right to own and bear arms — even a duty — since the 1180s. At the time of the approval of the American Bill of Rights, there was more than 600 years of common law recognition of this right.

            Indeed, the Second Amendment’s language addressing a militia makes sense because of the context of both the Assize of Arms and the Statute of Winchester and the common law cases decided thereunder. An armed population constituted the militia in the 1100s and in the 17700s. It’s what John Burns did at Gettysburg. People had the personal right to own and bear arms under English common law. And Congress and the several states recognized and protected it in the Second Amendment.

            Does that mean there can be no regulation of firearms? No. Similarly, Justice Blackmun opined in Roe that there was no unlimited right to an abortion. There is no First Amendment right to shout “fire” in a crowded theater. There’s no right to have a specific person on a jury.

            I think we have a chance to enact some reasonable gun regulations, e.g., expanded background checks, Red Flag process. But the path to compromise is not one where one side claims there is no personal right to bear arms or the other says there can be no restrictions. Ditto for codifying a right to an abortion.

            Your argument that 50 year old precedents should not be overturned when wrong would mean Plessy v. Ferguson should still be the law. Precedent should be followed but if a case is wrongly decided, it should be overturned.

            And as we discussed earlier, Marbury can easily be explained by reasoning that, if there is an overriding constitution, a law inconsistent with it cannot stand.

            Finally, I commend you for assisting people during your retirement. It’s an honorable thing to do.

          2. James McCarthy Avatar
            James McCarthy

            Most SCOTUS decisions can be reasoned from general jurisprudence as well as precedent. In the absence of precedent, Marbury has neither anchor, only reason. Also, I did not argue precedents ought not be overturned, only given due regard especially where affected interests have relied upon those precedents. Argument may be made that any federal court decision was wrongly decided. Justices, like umpires as Roberts commented, are also fallible. Plessey and Brown are examples.

            IMO, it remains of interest to challenge Heller v DC especially in light of the textual/originalist assertions. Scalia presented the very jiggery pokery about which he mused. Have you read Judge Frank Easterbrook’s introduction to Scalia’s book?

      2. WayneS Avatar
        WayneS

        Actually, he said he would not prosecute a woman for having an abortion “no matter what the law in Virginia says.”

        Not all abortions are currently legal in Virginia. He is at least implying that he will not enforce current law.

  9. f/k/a_tmtfairfax Avatar
    f/k/a_tmtfairfax

    I think James’ point on abortion is correct. Virginia has laws that address abortion and do not rely on science fiction.

    If a commonwealth’s attorney doesn’t want to uphold the law and prosecute when the facts warrant it, he/she should do the honorable thing and resign. It’s wrong for a law to be enforced in one part of a state and not others.

    There is a guy running for district attorney in Wake County who signs read to the effect of Vote for me. I won’t prosecute marijuana cases. I think that this is simply wrong and creates a real issue as to whether the attorney should be permitted to remain an attorney.

  10. ARL Avatar
    ARL

    I think the Genie is already out of the bottle on this concern, shared equally between liberal and conservative jurisdictions; many law enforcement leaders refused to enforce COVID restrictions or ICE transfers, amongst others.

  11. LarrytheG Avatar
    LarrytheG

    Since Commonwealth Attorney’s are elected , we may start to see people deciding where they want to live based on how a locality is governed.

    Works that way with Sheriffs also with different levels of enforcement for various things such as speeding and other offenses.

    If you don’t like Boss Hogg governance…some folks will decide where to live or not live.

    I predict the same thing will happen at the state level with abortion. If
    someone has job offers or opportunities, one of the things that will go into their consideration is how that State (and city) treats things like abortion.

    People are not likely to decide JUST on abortion alone but rather how the State or City deals with issues like that – in general.

    1. f/k/a_tmtfairfax Avatar
      f/k/a_tmtfairfax

      Larry, it’s wrong for someone to be treated differently under any state’s criminal law because of where that person resides in a state. That’s why we have state legislatures that enact criminal laws of general application. Prosecuting attorneys, police chiefs and sheriffs need to follow the law as written. If a law no longer makes sense, they should urge the legislature to change it. Or if they cannot in good conscience enforce it, resign. We had one John C. Calhoun. That’s more than enough.

      1. LarrytheG Avatar
        LarrytheG

        I actually agree with you but also point out that there are, right now, still a bunch of state laws that are largely no longer enforced and it often started out with some jurisdictions choosing to no longer enforce them, then it spread.

        Many of Virginia’s laws on race were that way for decades.

        Remember the Lovings?

        And how about this:

        https://uploads.disquscdn.com/images/15de45f39d35b303e48daa5a18eb804205c4e194d64d65e77eb498d3d335f16e.jpg

        1. f/k/a_tmtfairfax Avatar
          f/k/a_tmtfairfax

          Laws that are unconstitutional or that no longer make sense should be repealed. This should occur every two years.

          While I would tend to support marijuana legalization in both NC and VA, it’s a subject of debate. There are studies that show people with certain mental and emotional disorders become worse if they are heavy weed users. And if tobacco smoke is bad, what about marijuana smoke?

          1. Nancy Naive Avatar
            Nancy Naive

            But they aren’t. And when the SCOTUS changes its mind, it’s Zombieland all over again.

            Lawrence v. Texas should have resulted it Virgiinia’s adultery laws being wiped from the books, along with most bawdy laws. They are still enforced and can be unless someone is willing to appeal a $250 fine.

          2. LarrytheG Avatar
            LarrytheG

            penalties for smoke?

            It’s this kind of law that likely is not going to be prosecuted consistently across all jurisdictions, right?

      2. Nancy Naive Avatar
        Nancy Naive

        “Larry, it’s wrong for someone to be treated differently under any state’s criminal law because of where that person resides in a state. ”

        By extension then, it’s wrong depending then on State.

        1. LarrytheG Avatar
          LarrytheG

          nothing is ever simple anymore….
          😉

          1. Nancy Naive Avatar
            Nancy Naive

            It never was. But, it could be.

    2. Eric the half a troll Avatar
      Eric the half a troll

      Another great migration… who will be left…??

      1. Nancy Naive Avatar
        Nancy Naive

        Well, you won’t want to be there.

  12. Nancy Naive Avatar
    Nancy Naive

    Rights by zip code… the ultimate GOP plan. ‘Cept gun. Those are all over.

  13. LarrytheG Avatar
    LarrytheG

    I guess when I see CAs say they are no long going to prosecute murder and such, I’ll be more convinced about “anarchy”and other assorted gloom & doom scenarios..

    So one could claim that much of Virginia is a “sanctuary” against adultery or any number of zombie laws still on the books – that at one time – actually had the support of a majority of citizens and/or the elected representatives.

    Times change and so do some laws but not all, at least not right away and that’s how different jurisdictions don’t all march in lockstep on enforcement.

    Clearly, though, the current AG has indicated he will step in and charge if the local CA declines.

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      This bringing up of the adultery law is a straw man. Adultery is a Class 4 misdemeanor. The most severe possible penalty is a $250 fine. CA’s have no obligation to prosecute misdemeanors. If someone wants to lodge criminal adultery charges against a spouse, it would be up to law enforcement to arrest the accused and the district court judge to dispose of the case.

      1. LarrytheG Avatar
        LarrytheG

        I probably don’t understand the distinction between a felony or a misdemeanor in this context.
        So CA’s DO have discretion on the latter?

        We see some of this also on drugs these days, right?

        I also assume, perhaps without real knowledge that if a CA refused to prosecute a murder – there is something in the criminal justice system to deal with that and remove the CA ?

        You know much more of this and I”d appreciate you laying more of this out.

      2. Nancy Naive Avatar
        Nancy Naive

        It’s not that it’s a misdemeanor. It’s a zombie. A law that given a SCOTUS ruling on a similar law in another State (cited) still remains on the books, but that for a prosecution and an appeal is all but OBE.

        There are 10s of 1000s of such laws, and CAs and DAs throughout the country avoid prosecution because who wants to be know as the guy who drags out an archaic law only to be overturned on appeal? Especially if you’re facing an election.

        Yes, the OP-ED is incendiary, but all politics are.

  14. James McCarthy Avatar
    James McCarthy

    All CAs in VA have prosecutorial discretion with respect to bringing charges; all have likely exercised that prerogative at one point or another. At present, a roll back of Roe does not compromise a VA woman’s right to an abortion. So, Descano’s opinion is moot.

    Selective enforcement of the law is another matter, I.e., refusal by sheriffs to abide by red flag court order. That behavior is more like nullification than the exercise of discretion.

  15. Nancy Naive Avatar
    Nancy Naive

    How many CAs have enforced Virginia’s adultery laws since, oh say, 1999? Answer: ONE. (Luray, guilty plea, $250 fine)

    Are we to believe in a State of 8.5 mllion people only ONE person has violated the law against adultery?

    Wake up and smell the bacon! Er, make that coffee. JAB mightn’t approve of you showing up on his porch with a smell-o-meter.

  16. Rafaelo Avatar
    Rafaelo

    Va. Code § 49-1. Form of general oath required of officers.

    Every person before entering upon the discharge of any function as an officer of this Commonwealth shall take and subscribe the following oath: “I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge all the duties incumbent upon me as [Commonwealth Attorney] according to the best of my ability, (so help me God).”

    God needs to give him a little help with the faithfully and impartially part. He renounces enforcing a law before there is such a law? Nothing to do with law. Grandstanding politics. I wouldn’t vote for this dude for dog catcher.

    “I am not going to catch dogs, because the leash law is an affront to liberty.”

  17. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    Descanos is wrong in so many ways in this op-ed. First, he implies that the governor could strip women of their reproductive rights. The governor can’t do that unilaterally–the legislature has to pass a law making abortion illegal. Second, he does not know what form the law, if passed, would take. He is assuming, for shock value, that it would apply to the woman, rather than to the doctor. Lastly, prosecutors do have prosecutorial discretion, but that is generally considered to be applicable to individual cases, not as blanket discretion.

    Under state law, attorneys for the Commonwealth have the “duty of prosecuting all warrants, indictments or informations charging a felony, and he may in his discretion, prosecute Class 1, 2 and 3 misdemeanors.” Sec. 15.2-1627. As a Commonwealth’s attorney, Descano swore an oath to “faithfully and impartially discharge all the duties incumbent upon me.”

    It is irresponsible for him to be declaring that he will not prosecute laws which have not been enacted. If he can’t in good conscience fulfill his duties to prosecute felony charges, even if he disagrees with the basic law, he should not run for the office.

    Jim is correct, Democrats can’t have it both ways. https://www.washingtonexaminer.com/news/the-law-is-the-law-virginia-democrats-float-prosecution-national-guard-deployment-if-police-dont-enforce-gun-control

    1. James McCarthy Avatar
      James McCarthy

      It’s not only Dems who seek the both ways. The GA affirmed its support for the Equal Rights Amendment. Miyares withdrew from the law suit declaring Virginia no longer believes in its prosecution. How and who is exercising discretion?

      1. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        That is different. AGs frequently withdraw from Supreme Court cases when administrations change and the official position of the state changes. Herring withdrew from the gay marriage case, declining to defend Va’s law.

      2. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        That is different. AGs frequently withdraw from Supreme Court cases when administrations change and the official position of the state changes. Herring withdrew from the gay marriage case, declining to defend Va’s law.

  18. James Kiser Avatar
    James Kiser

    Well Jim glad you woke up to the fact that democrats want anarchy. Example CA state senate voted to forbid reporting kids that make threats to police.

  19. Super Brain Avatar
    Super Brain

    CA’s has always be selective in prosecutions due to the lack of resources. It is always been difficult to have financial frauds prosecuted on the state level.

  20. Ruckweiler Avatar
    Ruckweiler

    Especially on the issue of abortion and other legal cases, let’s have a lottery to decide which laws to enforce or maybe use a roulette wheel. These folks seem not to care that selective enforcement is the road to ruin and their Oath is not relevant in any event.

  21. walter smith Avatar
    walter smith

    Since the usual Lefties are Pooh-poohing shoplifting, mind if I swing by your crib and help myself to any of your stuff? Getting tired of mine…

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