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Arlington, Virginia has recently caught up to almost where Portland was in 1972, at least when it comes to Marijuana laws. The city has recently moved towards marijuana decriminalization, removing potential jail penalties for possession of a half-ounce of marijuana or less. First-time offenders carrying less than that amount will now be either cited or diverted into a program that allows their charges to be dismissed if they comply with certain conditions.

To most potential offenders, this seems like a big win. Even many fiscal conservatives support the measure, which can save money on unnecessary court cases for possession of small amounts of the plant. However, some advocates for immigrants and criminal defendants suggest that the new policy may have unintended negative consequences.  

The Washington Post reports that due to a quirk in the Virginia law, cases dismissed through this process are not expunged, meaning that they will remain on the defendant’s record. If a defendant is not eligible for dismissal, he will proceed through the regular court system. However, due to the new policy, no one convicted for simple possession will receive jail time.

This is where things become complicated. Constitutional protections mean that any defendant facing jail time in the United States is guaranteed a lawyer. This protection does not apply to cases in which jail is not on the menu. This means that many defendants may plead guilty to marijuana charges without understanding the consequences of that plea.

This is of particular concern when it comes to immigrant communities. If an undocumented immigrant is charged with simple possession, he may plead guilty, having been assured that he could not be imprisoned. However, because the plant continues to be federally controlled, immigration officials could use this conviction as grounds for deportation. Immigrant advocates in Arlington fear that with a state-provided lawyer, immigrants may plead guilty to possession charges even when it’s not in their best interest.

Arlington lawmakers are considering a provision to provide attorney support to marijuana defendants even in cases where jail time is not on the table.