Public Defenders Object to New County Policy for First-Time Marijuana Offenders

(Updated at 1:02 p.m.) A new Arlington General District Court policy to skip appointing a lawyer for some first-time marijuana offenders has local public defenders speaking out.

Under the new policy, which took effect March 1, people caught with a small amount marijuana would not be appointed a lawyer if they have no criminal record and it’s their first pot possession offense.

According to a memo that court officials sent to the Arlington County Bar Association last month, some people caught with pot for the first time can enter a guilty plea and have the charge dismissed as long as they agree to meet “certain conditions” set by the court.

Offenders who qualify would have two weeks from arraignment to consult with an attorney if they choose, but wouldn’t be appointed one.

Though the Sixth Amendment of the U.S. Constitution says “in all criminal prosecutions the accused… shall have assistance of counsel for his defense,” the Supreme Court ruled in a 1979 decision that the right to counsel only applies when a defendant faces imprisonment.

In this case, because the court is waiving jail time for those offenders, it does not legally need to appoint them counsel. Many other courts throughout the U.S. have also similarly waived imprisonment for first-time marijuana offenders.

Arlington’s Office of the Public Defender is protesting the policy on the grounds that it could unfairly affect people who can’t afford lawyers if they want them.

The office made its case in a rebuttal letter shared with ARLnow.com.

“While no doubt unintended, Arlington’s new policy will send us down a slippery slope towards the same scenario for poor people: no lawyers for indigent persons charged with personal-use marijuana possession cases where the court or prosecutor exclude jail time as a sentencing option,” the letter reads.

Matthew Foley, the office’s chief public defender, added that the new policy would “disproportionately affect minorities and immigrants” and possibly deprive them of their due process.

Foley argued that the policy could mislead people into thinking the charges would be expunged from their record, which they may not be. For citizens, he said, the consequences of a criminal record might include loss of educational opportunities, jobs, public benefits, student loans, and the ability to legally drive a car. For non-citizens, the consequences of such a record could mean deportation, the inability to become a citizen or re-enter the country.

“Liberty is not just about jail time,” he told ARLnow.com. “It’s about permanent criminal records, which affect you your entire life.”

Foley continued in the letter:

Assuming a typical indigent defendant can even get a free consultation with a private lawyer, how does that person parlay the attorney’s advice into getting due process? If the consulted lawyer advises that the police stop or search were unlawful, what will the indigent defendant without an appointed attorney be able to do with this advice? What if the person charged is innocent? How does the mere advice of the attorney lead to a just result? If the attorney tells the accused person that the case is weak, but he may be deported if he is found guilty, how does that help? The answer is clear: 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.

But Commonwealth’s Attorney Theo Stamos disputed Foley’s argument and called his rhetoric “overheated.”

“The idea that somehow this is collusion between my office and the judges to deny people due process is offensive,” Stamos said. “Nobody is trying to ease out the public defender.”

She continued, “I don’t agree that what’s going to happen as a result of this change is that people’s rights are going to be trampled on a daily basis in the courts of Arlington County. That’s not accurate. It’s unfair, it’s untrue, and it’s overheated.”

Stamos argued that cases where first-time marijuana offenders are found innocent are exceedingly rare. Furthermore, Arlington is simply coming into line with the numerous other jurisdictions who have already enacted such policies without much protest.

“The vast majority of these cases, if not all of them, result in either a conviction or a plea of guilty with the disposition that allows them not to have a criminal record,” she said. “If you think that the law should be that, even if your liberty interest is not at stake, that the government should pay for your lawyer, then you need to change the law.”

(For the record, Foley said he supports overturning the Supreme Court’s 1979 decision.)

Still, the policy is unlikely to change any time soon, at least without a test case, Foley said. And Stamos said the court is unlikely to budge on its own.

“I just don’t agree with Matt,” she said. “And the law does not support his position.”