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Herring criticizes Miyares for prosecuting marijuana possession and low-level crimes

Two people speak
Virginia Attorney General Mark Herring (left) and Republican candidate for attorney general Jason Miyares (right) both addressed the Virginia FREE Leadership Luncheon in McLean, Va., Wednesday, Sept. 1, 2021. (Photos: Cliff Owen/AP)

Running for reelection, Attorney General Mark Herring is slamming his opponent, Rep. Jason Miyares, for sending people to jail for marijuana possession and petty theft as an Assistant Commonwealth’s Attorney in Virginia Beach.

Herring’s campaign dug into Miyares' record and found that his time in the office was marked by what Herring says are harsh punishments for minor crimes. His campaign provided a list of more than 500 Virginia Beach cases that Miyares prosecuted. Many are for public intoxication, sleeping in public and marijuana possession cases that resulted in jail time.

Herring says Miyares, who opposed decriminalizing and legalizing simple possession of marijuana, is out of touch with voters.

“Virginia has legalized marijuana and that shows that it’s not the kind of prosecutions that the people want in Virginia,” Herring said in a phone interview.

Other examples Herring’s campaign provided include a man who attempted to shoplift about $100 worth of items from a Farm Fresh, a man who stole items from a Rite-Aid and a Kroger, a woman who stole items from a Dollar General store and a man who stole $300 from his former employer. “All these defendants were Black,” the document stated.

Herring called many of these offenses, “crimes of desperation.”

“In talking with other prosecutors, I don’t think that’s where they think the resources should be directed,” Herring said in an interview.

Miyares disagrees.

“I would not classify any crime as low level. If I’m a struggling shopkeeper and I’m struggling to put food on my table…and I have somebody that’s stealing, I would never classify that as low level,” he said.

He calls Herring’s approach a criminal-first, victim-last mindset.

Miyares points to a recent spike in homicides - the highest level since the 1990’s, according to data from state police. However, the issue isn’t isolated to Virginia. Violent crime rates nationwide jumped 30 percent over the course of the pandemic. And while the murder rate has continued to rise after the 2020 spike, overall crime rates have declined

Miyares says he has a more “common sense,” “balanced approach” to criminal justice reform than Herring, pointing out that he voted with Democrats in 2016 to restore voting rights for non-violent offenders (a bill that did not pass). And he voted to raise the felony grand larceny threshold from $500 to $1000.

Law enforcement organizations including the Fraternal Order of Police have endorsed Miyares.

Dana Schrad, executive director of the Virginia Association of Chiefs of Police, which does not endorse candidates, says local law enforcement agencies focus on the priorities of the communities they serve. 

“If you’ve got a high homicide rate and you’ve got a bunch of cold cases that have not been solved, that redefines what low level offense is for that community,” she says.

But Brad Haywood, chief public defender at Office of the Public Defender for Arlington County and the City of Falls Church, says about 3% of arrests in Virginia are for violent felony crime, and that figure holds in Virginia Beach as well, citing data from the Virginia State Police report.

According to the Department of Criminal Justice Services, violent crime in Virginia Beach was on the decline from 2006 to 2015, the time frame in which Miyares worked as a prosecutor in the city. 

“Most of the time what people are getting arrested for is things like trespassing, disorderly conduct, drunk in public,” Haywood says.

And he says a disproportionate number of people arrested for those offenses have a serious mental health illness, are homeless or have substance use disorders.

“The exact kind of stuff that criminal justice reform is trying to target,” he said. “We have smarter approaches to social problems like those.”

Correction: An earlier version of this article said Herring has "not worked as a prosecutor." While he's never been a local prosecutor, he does work as a prosecutor as the Attorney General, an office he's held since 2014. We have removed the original line.
We also added additional examples of cases Miyares prosecuted.