Steve Descano, Parisa Dehghani-Tafti, and Buta Biberaj were swept into office on reformist platforms four years ago in Fairfax, Loudoun, and Arlington counties, respectively. They quickly joined forces as part of a statewide alliance, the Virginia Progressive Prosecutors for Justice, that lobbied for changes like abolishing the death penalty and stepping up expungements. They also drew anger from conservative politicians and local law enforcement for not pursuing cases more aggressively, and clashed with judges and police—but survived recall efforts.

On Tuesday, each faced primary challengers who accused the incumbents of mismanagement and who, to varying degrees, threatened to unwind reforms enacted since 2019 and kneecap the progressive coalition. Local police unions endorsed the challengers in Arlington and Fairfax counties, while in Loudoun County the local Republican Party invited its base to cross over to support challenger Elizabeth Lancaster in the Democratic primary. 

The incumbents all prevailed with leads of 10 to 13 percentage points, and they cast their wins as vindication.  

“Make no mistake: this is a referendum,” Descano told Bolts inside The Auld Shebeen, the Fairfax pub where he gathered with supporters on Election Night. “We’ve had police unions come at us, Republican money coming in, the GOP actively telling people to come and vote in these open primaries.” 

“Victory is going to show that the appetite for reform is maybe even bigger than it was before,” he added.

Dehghani-Tafti echoed Descano’s language in a statement to Bolts: “If this election was a referendum on reform, our voters emphatically responded that they will not go backward.”

Some reform advocates and defense attorneys have voiced disappointment over the last four years, criticizing the three incumbents for not being bold or consistent enough in pursuing local reforms. Arlington’s lead public defender, Brad Haywood, wrote an essay last year laying out how this band of “progressive prosecutors” had fallen short of their promises.

But Haywood, who has also founded a statewide reform organization Justice Forward Virginia, expressed relief at Tuesday’s results given the alternatives. “We’ve gotta make baby steps in this movement to get to a point where people are ready for more transformative change,” he told Bolts, adding that Dehghani-Tafti’s win in Haywood’s own county is “significantly more than a baby step” because he sees her as the most committed to meaningful reform.

The Working Families Party, a national progressive organization, also endorsed the three incumbents. Vidal Hines, their political director in the mid-Atlantic region, says the trio’s victory shows that reform policies are more politically viable than many may assume. “Voters recognize that these DAs came in four years ago and were focused on reform,” Hines said, “and at the same token recognize that locking people up won’t get us out of this problem of crime, and that we’ve got to be much smarter and more strategic about how we approach that. 

These three prosecutors represent suburban areas that combine to make up the wealthiest swath of Virginia. Winning in such areas can be tricky for candidates who run on reform, since they must win over and turn out a large number of white, affluent suburbanites who have not personally faced arrest or prosecution.

One such suburban voter, Bruce Waxman, said at Descano’s election watch party that he’s had good feelings toward law enforcement in the past and has hosted multiple fundraisers for the local sheriff, but has been moved by the call for prosecutorial fairness.

“If you have money, if you have resources, you’re not going to spend time in jail,” he told Bolts. “Whose ox is being gored? Is it the more established person with better resources, or the person for whom justice has been difficult to achieve?”

Since their victories in 2019, the three incumbents have each overseen a decline in their local jail populations, and boosted diversionary programs meant to keep people who have committed crimes out of jail and in their communities. 

Dehghani-Tafti and Descano also followed through on their campaign promise of not prosecuting simple marijuana possession, leading them to fight with local judges who refused to let them dismiss police arrests over marijuana. (The legislature ended up legalizing marijuana in 2021.) Biberaj has made fewer concrete policy announcements. But she too has clashed with public officials who object to policies that reduce incarceration; one Democratic county supervisor slammed Biberaj for getting “as many people out of jail as possible.”.

These incumbents’ primary opponents accused them of being responsible for increases in crime, which they dispute; in Arlington, reform advocates accused local police of manipulating crime data ahead of the election. Jason Miyares, Virginia’s Republican attorney general, has also frequently attacked these prosecutors and unsuccessfully lobbied lawmakers to undercut their powers.

Descano called out Miyares during his victory speech Tuesday night for thinking “that his path to higher office is by undercutting reforms here in Fairfax County.” When a supporter in the crowd yelled back that Miyares is an “asshole,” Descano smiled wide and said, “He said it, not me.”

But the incumbents have also drawn fire from their left. Descano, for instance, announced his office would no longer seek cash bail, though local public defenders later denounced his office for objecting to pretrial releases during the pandemic. The county’s lead public defender told The Appeal at the time, “While there may be a person at the top who suggests that there is a policy in place, it’s not actually being implemented in the courtroom.” 

Haywood also singled out Biberaj as falling short of his hopes. “Buta has actually ticked off most people who are actually criminal justice reform advocates,” he said. “She nevertheless kept holding herself out as a criminal justice reformer, progressive type.” He cautioned that there are “massive ideological differences” among the trio that won on Tuesday.

In separate interviews with Bolts this month, Descano and Dehghani-Tafti said their ability to carry out greater reforms has been hampered at every turn by uncooperative partners in law enforcement and in court. They also said that they’ve faced internal resistance from line prosecutors in their own offices who resisted their policies. Josh Katcher, the losing candidate in Arlington County, was a former employee of Dehghani-Tafti’s office. 

Now, Tuesday’s winners exit the primaries emboldened. “The idea of reform has really taken root,” Dehghani-Tafti said. “The idea that we should be doing treatment and taking the approach of creating diversion and rehabilitative programs have taken root.”

These three elections were the only contested Democratic primaries for prosecutor anywhere in Virginia on Tuesday. All counties are electing their commonwealth’s attorney this year.

Descano and Dehghani-Tafti will have no Republican opponents in November. Descano represents Fairfax County, the state’s most populous county with more than one million Virginians, as well as adjacent Fairfax City. Besides Arlington County, Dehghani-Tafti’s district also covers the independent city of Falls Church.

In Loudoun County, which leans blue but is the least Democratic of the three counties, Biberaj will face Republican Bob Anderson, who served as the county’s commonwealth’s attorney from 1996 to 2003 and is starkly criticizing Biberaj’s tenure.

Notably absent from Tuesday’s electorates were scores of people with intimate understanding of crime and punishment. Governor Glenn Youngkin, a Republican, ended his predecessor’s policy of automatically restoring voting rights to people once they leave prison, effectively barring thousands of Virginia residents released in the past couple years from participating.

Erin Apgar, who lives in Fairfax County, said she has applied for voting rights after she was released from prison last year but has not heard back from the state. It’s “ridiculous,” she told Bolts, that she was locked out of voting on Tuesday—doubly so since sheriff and prosecutor races were on her local ballot. 

“It’s completely unfair and really creates a sense of discouragement,” Apgar said. “When you’re trying to turn your life around, and even if you have successfully turned your life around, you’re still unable to vote on things that are important.” 

She added, “The people that are most affected by criminal justice reform, or lack thereof—we’re the ones that are silenced.”

The post Reform Prosecutors Sweep Three Northern Virginia Primaries appeared first on Bolts.

The movement to elect prosecutors intent on fighting mass incarceration has been largely associated with big cities like Chicago and Philadelphia until now. But it broke new ground on Tuesday when a wave of decarceral candidates won in suburban or rural counties across the nation. 

The Election Day results overhauled Virginia’s landscape in particular, broadening the geography of decarceration, and paving the way for advocates to scale up county-level reform into demands for statewide change.

“This is a great opportunity to band together with other reform-minded prosecutors to really move criminal justice reform, not only in our jurisdiction but around the state,” Steve Descano, who won in Fairfax County, outside of Washington D.C., told the Appeal: Political Report after his win on Tuesday night. “I’m very gratified that so many of my reform-minded colleagues will be joining me.”

Descano prevailed alongside other progressive Virginia candidates, including Parisa Dehghani-Tafti, a former public defender who won in Arlington County on a platform of “dismantling” mass incarceration. Albemarle County, which surrounds but does not contain Charlottesville, elected Jim Hingeley, a longtime public defender who describes incarceration as “family separation.” 

“Ending mass incarceration was communicated as the campaign’s number one priority,” Hingeley told the Political Report. He called his win a “bellwether to test whether the progressive prosecutor movement spreads and takes root” in counties “outside Virginia’s urban crescent.” He opened the county’s public defender office in 1998, and led it through 2016.

“It’s not a moment, it’s a movement,” Philadelphia District Attorney Larry Krasner, tweeted Tuesday in response to Hingeley’s win. One of the country’s most emblematic reform prosecutors, Krasner has been comparatively isolated within Pennsylvania.

All three of these Virginia candidates ousted incumbents this year, two in a Democratic primary and one in the general election, an unusual feat. 

All three are also Democrats, and their wins coincide with Democrats gaining control of the state government for the first time since 1993. The legislature could tackle proposals to decriminalize pot, restrict disenfranchisement, lessen sentencing guidelines and felony thresholds, and strengthen discovery rules. For prosecutors to actively support such changes would break the traditional mold of criminal justice politics. “The Virginia Association of Commonwealth’s Attorney (VACA) is down in Richmond every single day of session, and opposes reform after reform after reform, and these bills get killed,” Dehghani-Tafti told the Political Report in February, a pattern that mirrors the dynamic in other states.

Descano has vowed to to put together a “coalition” that would “act as a counterpoint” to VACA. “I will bring to bear the coalition I have built to go down and say, ‘Hey, legislators, you’ve heard this regressive view of the world. Let me tell you a progressive view of what justice should be,’” he said in March. Dehghani-Tafti and Hingeley have expressed similar goals. 

They could join Stephanie Morales, the commonwealth’s attorney of Portsmouth, who has drawn attention for her response to police violence, as well as two other incoming prosecutors who won hotly contested elections in suburban Virginia on Tuesday: Buta Biberaj in Loudoun County and Amy Ashworth in Prince William County. Biberaj and Ashworth also campaigned on redefining what goes into public safety and on reforming their local systems, though they staked less far-reaching positions on some key issues. Ashworth will replace the retiring Paul Ebert, who served as Prince William County’s punitive and controversial prosecutor for 51 years.

And it’s not just Virginia. Elsewhere across the country, rural and suburban electorates voted to rethink the priorities of the local prosecutor. 

In the Philadelphia suburbs, Jack Stollsteimer, a Democrat, beat a Republican DA on Tuesday and will be the next prosecutor of populous Delaware County. He proposed a 10-point “Smart on Crime” platform, and has advocated for deprivatizing the local jail. 

In Mississippi’s comparatively rural southwest corner, Shameca Collins emphasized reducing incarceration while running for DA of the Sixth District (Adams, Amite, Franklin, and Wilkinson counties). She defeated Ronnie Harper, a longtime incumbent with a history of fighting reforms, in the August Democratic primary. She was unopposed on Tuesday.

“Right now, we are one of the highest incarceration states,” Collins told the Political Report on Wednesday. “We can use that money in other areas that can benefit the communities, like education, infrastructure, and healthcare.” She mentioned a need to expand medical insurance for people who face mental health or substance abuse issues to afford treatments.

She will join Mississippi’s Scott Colom, who in 2015 became one of the main reform-minded DAs serving in a primarily nonurban jurisdiction. Colom, who like Collins is African-American, won a second term unopposed this week. A third candidate who ran on a progressive platform, Jody Owens, is set to become the next DA of Hinds County, which includes Jackson. He was unopposed in the general election. The Appeal reported in October that Owens faces a series of allegations of sexual harassment.

In Kentucky, which voted for President Trump by 30 percentage points in 2016, Andy Beshear claimed victory in the governor’s race on Tuesday. He ran on restoring the voting rights of approximately 140,000 people with past criminal convictions, and he repeated that promise in his Election Night speech. African Americans, who are subject to harsher policing and prosecution, make up a disproportionate share of the disenfranchised Kentuckians.

—

These incoming officials made varying sets of commitments, such as never seeking the death penalty (a position shared by Dehghani-Tafti, Descano, and Hingeley), not prosecuting people for marijuana possession, filing more cases at the misdemeanor level rather than the more severe felony level, and reforming the bail system. Ashworth, for instance, told me she would “stop the use of cash bail to reduce the jail population.” 

Many of them share a goal of reducing the volume of convictions by setting up new or expanded pretrial diversion programs. These are programs, usually reserved for lower-level cases, through which prosecutors agree to drop cases if defendants complete a series of steps. (This contrasts with the diversion programs that provide lower penalties but require a guilty plea as a condition of access.) This lets people “not have that record that follows them around,” Descano said. 

When I asked Dehghani-Tafti what Tuesday means for reform, she outlined a manifesto of sorts. She said that it “means we are ready to consider these basic principles: not every problem needs to be criminalized; not every crime has to lead to punishment; not every punishment has to result in incarceration; and not every instance of incarceration has to be so punitive that it makes no room for rehabilitation. … I am excited to join other reformers to begin that work.”

They also made a case that current practices harm communities. Biberaj argued that the probation system fuels incarceration because it is designed to trip people up. “That doesn’t make our community safe,” she said. Descano echoed her message on Tuesday, saying, “You don’t have to choose between safety and justice.”

—

The country’s most visible DA races this year did take place in some of its largest cities: New York City and San Francisco. Those grabbed the nation’s attention, due in part to the decarceral platforms of public defenders Tiffany Cabán in Queens and Chesa Boudin in San Francisco. 

Melinda Katz won in Queens on Tuesday, five months after securing the Democratic nomination against Cabán, during which she was pushed to the left on issues such as bail. She has pledged to create the borough’s first conviction integrity unit. In San Francisco, Tuesday’s election remains too close to call between Boudin and Suzy Loftus, who became interim DA in mid-October. 

But it is just outside of these cities that the 2019 elections will leave their biggest marks.

“We know that if the movement is going to flourish outside of big cities, it’s going to have to work in places like Fairfax Counties,” said Descano. “I think people will see this victory, and this movement will spread to other large suburban jurisdictions across the country.” 

He added, “Yes, to some degree urban jurisdictions are different. But opponents of the movement have tried to make hay of these differences and tried to use coded language, and express language, to stop progressive reform in its tracks.” 

Descano was alluding to attempts by opponents of criminal justice reform to associate crime and reform alike with cities that are often more racially diverse. Descano’s general election opponent, Jonathan Fahey, told a radio show that electing Descano would make Fairfax “go down the road of Philadelphia.” Fahey’s bid drew support from the GOP, from the Democratic prosecutor Descano ousted in the primary, and from police unions. In Arlington, just south of Washington D.C., the defeated prosecutor Theo Stamos told The Appeal in May that racial disparities in local prosecutions were due to “folks coming from other areas in the region.” And in Loudoun, Biberaj faced attacks for “coddling criminals” with her reform proposals. “The theme for this year is overcoming backlash,” said Taylor Pendergrass, a senior campaign strategist for the ACLU Campaign for Smart Justice, in a written message to the Political Report.

—

There were exceptions to this expanding base for decarceral candidates, however. 

In upstate New York, challengers who ran on reform platforms fell short. Monroe County DA Sandra Doorley (the president-elect of the state’s DA association), Onondaga County DA William Fitzpatrick (its former president), and Dutchess County DA William Grady (a longtime foe of reform) won new terms; all are Republicans. This means that many of the New York DAs who have resisted the state’s new pretrial reforms will now be in charge of implementing them.

In Virginia’s Chesterfield County, south of Richmond, the state’s prospective progressive alliance lost a potential member. Democratic incumbent Scott Miles lost to Republican Stacey Davenport, who ran on ending a pretrial diversion program set up by Miles. Miles will have served for only one year. He faced pushback during that time from local law enforcement, a reminder to incoming prosecutors that they will keep facing the same forces they just defeated at the polls.

In Pennsylvania’s Allegheny County, Stephen Zappala, a longtime DA with a punitive record, won Tuesday against public defender Lisa Middleman, who wanted to overhaul the local system. Middleman, an independent, did very well within the city of Pittsburgh, but poorly outside of the city limits. Zappala benefited from the same pattern in the Democratic primary.

That said, things shifted even in these jurisdictions. This year alone, Zappala twice faced competitive challenges after not facing a single opponent for 20 years. And Middleman’s success in Pittsburgh signals strength for the local progressive movement since she was running as an independent while Zappala had the nominations of both the Democratic and Republican parties.

Grady, who was seeking a ninth term in Dutchess County, won by just one percentage point. And the DA election remains far too close to call in neighboring Ulster County, where one of the candidates believes the state needs “a more progressive view” than currently exists in the DA association.

—

For the decarceral movement, though, candidate recruitment remains a major hurdle to growing a geographic base beyond the biggest cities. 

Despite conservatives’ advocacy for reform legislation in red states like Oklahoma, most people who ran for prosecutor on a reform platform this year did so as Democrats. That limits the scale of change in rural counties where GOP candidates are favored. Brad Haywood, chief public defender of Arlington County and executive director of Justice Forward Virginia, a nonpartisan organization, noted that “whether the movement expands beyond big cities” hinges on ideologically varied messaging and candidates. 

Moreover, in each of the states that held multiple elections for prosecutor this year—Mississippi, New York, Pennsylvania, and Virginia—the majority of jurisdictions drew only one candidate. In 50 of Virginia’s 70 counties with fewer than 50,000 residents, one name appeared on Tuesday’s ballot: the incumbent prosecutor’s.

The post Voters Beyond Big Cities Rejected Mass Incarceration in Tuesday’s Elections appeared first on Bolts.

Theo Stamos, the chief prosecutor of Arlington County, argued in 2018 that mass incarceration is an expression “used to delegitimize” what prosecutors do. “There isn’t a prosecutor in this country that engages in mass incarceration,” said Stamos, who has a history of harsh practices.

But voters in two populous Virginia counties, home to a combined 1.4 million people, signaled that they believe otherwise in Tuesday’s Democratic primaries.

They ousted Stamos and Ray Morrogh, her Fairfax County colleague, in favor of two challengers who campaigned on “ending” or “dismantling” mass incarceration.

Parisa Dehghani-Tafti, a former public defender and the legal director of the Mid-Atlantic Innocence Project, defeated Stamos in Arlington County and Falls Church. She is unopposed in the general election.

Steve Descano, a former federal prosecutor, beat Morrogh in Fairfax County and Fairfax City. In this Democratic-leaning jurisdiction, he faces Jonathan Fahey, who is running as an independent, in November’s general election. No Republican candidate filed.

These results prolong a tide of electoral success for candidates who ran for prosecutor looking to overhaul the local legal system. They include Larry Krasner in Pennsylvania, Satana Deberry in North Carolina, and Rachael Rollins and Andrea Harrington in Massachusetts.

“We give prosecutors so much discretion about how to resolve criminal cases,” Andy Elders, the director of policy development for Justice Forward Virginia, a nonpartisan political action committee, told the Political Report on Tuesday evening. “Tonight’s results are part of a nationwide movement in which voters are telling prosecutors that they want change. They want fewer people in jail. They want drug offenses to result in treatment, not jail sentences. They want to get mentally ill people out of jails. They want racial bias in this system to be addressed.” Elders is also the deputy public defender for Fairfax County.

The two challengers received considerable financial support from a political action committee funded by George Soros to promote criminal justice reform.

Reform-oriented platforms

In separate interviews with the Political Report, Dehghani-Tafti and Descano laid out how they would reform prosecution.

They both said that they would not seek the death penalty nor prosecute marijuana possession charges.

Both questioned why anyone would ever be denied voting rights over of a criminal conviction. “We should never forget that these laws are the vestiges of Jim Crow,” Dehghani-Tafti said. This made for a striking contrast given their opponents’ joint decision to jump on to a 2016 lawsuit against then-Governor Terry McAuliffe’s executive order restoring voting rights for people who complete their sentences. McAuliffe endorsed both of the challengers.
A core argument of Descano’s campaign was that prosecutors file excessively severe charges. “There is a cycle of decreased opportunity, increased poverty, increased crime. That’s what we want to break here,” he said, adding that he would file fewer felony-level charges and “create a presumption that any theft under $1,500 is treated as a misdemeanor.” (Virginia’s current felony threshold stands at $500.) He also faulted prosecutors for “reflexively” seeking high sentences, and said he would end cash bail and increase the use of pre-conviction diversionary programs.

Dehghani-Tafti told the Political Report that she ran for prosecutor to address mass incarceration more frontally than she could as a defense attorney. “I don’t think we’ll ever have a perfect system, but right now I think going in on the inside and trying to reform based on evidence and based on data is about the only choice we have,” she said. Referring to obstacles she herself has experienced in obtaining the records and files she would need to argue for her client’s innocence, she talked of instituting more open practices to communicate information with the defense.

I asked Jenny Glass, director of advocacy at the ACLU of Virginia, what she thought would change after the incumbents’ departure. She said she “would expect to see a lot of data” since both winning candidates “made commitments to release data related to charging decisions, to plea bargains, and to collect information related to race and ethnicity.”

A statewide coalition?

Reform-oriented prosecutors elsewhere in the country have frequently found themselves isolated within their state. But Dehghani-Tafti and Descano may each have company in the other.

They have cast themselves as part of a broader movement to overhaul statewide practices.
Dehghani-Tafti faulted the Virginia Association of Commonwealth’s Attorneys (VACA), which lobbies on behalf of state prosecutors, for advocating punitive practice. She told the Political Report she is “hoping” to be elected “with a wave of other reform prosecutors” to “transform” how VACA flexes its muscle. Descano, who would represent Virginia’s largest county if he is elected in November, echoed Dehghani-Tafti when he said he would use his office’s visibility to put together a “coalition” that would “act as a counterpoint” to VACA’s current politics.

“I will bring to bear the coalition I have built to go down and say, ‘Hey, legislators, you’ve heard this regressive view of the world, let me tell you a progressive view of what justice should be,’” Descano said.

This would overhaul the prospects of criminal justice reform as much as anything Descano and Dehghani-Tafti can do within their jurisdictions.

It would clarify the existence of political fault lines around the existence of mass incarceration, and give reform advocates allies in offices that typically oppose reform. “When we think about creating legislation,” Glass told the Political Report, giving as an example a prospective bill to restrict solitary confinement, “it will be positive to know that there will be people in a very powerful lobbying group to support it.”

The post In Key Virginia Primaries, Winners Ran on Ending Mass Incarceration appeared first on Bolts.

The nationwide push to overhaul prosecutorial practices has reached Virginia, which hosts three contested elections for commonwealth’s attorney on Tuesday. These are powerful officials who shape the local legal system, while wielding outsize influence on state lawmaking.

These three elections are all Democratic primaries in populous Northern Virginia counties, and the results of each could substantially transform local approaches to prosecution.

Prince William Democrats are set to nominate their first candidate in half a century who is not Paul Ebert, a retiring prosecutor with a predilection for the death penalty.

But the widest contrasts lie elsewhere. Theo Stamos, the commonwealth’s attorney of Arlington County and Falls Church, is facing Parisa Dehghani-Tafti, a former public defender who is the legal director of the mid-Atlantic Innocence Project. Ray Morrogh, the commonwealth’s attorney of Fairfax County and Fairfax City, is facing Steve Descano, a former federal prosecutor.

Arlington and Fairfax counties

The two challengers are confronting the state’s criminal legal system as something that needs systemic reforms prosecutors can take on, beyond changing how they assess individual cases.

Dehghani-Tafti told me in an interview that her work as a defense attorney meant dealing with single cases as they came along—“plucking the babies out of the river,” she said—but that her candidacy was a way of “walking upstream” to “see who is throwing them in” and address the problem head-on. She said in her campaign announcement that she was running “to dismantle the mass incarceration machine.” Descano similarly told me in an interview that “if you were to have a prosecutor who was committed to making a dent in mass incarceration and ending mass incarceration, it would be within their powers” to do so, for instance by “changing the way that you charge crimes.”

Both challengers cast themselves as part of a broader movement to overhaul statewide practices.

Descano talked of creating “a coalition” to “act as a counterpoint” to the Virginia Association of Commonwealth’s Attorneys (VACA). VACA is the group that lobbies on behalf of Virginia prosecutors, typically for more punitive policies. Similarly, Dehghani-Tafti told me that she hoped “to be elected with a wave of other reform prosecutors;” she said of VACA that “right now, they don’t speak for me.”  

Incumbents Morrogh and Stamos, by contrast, have served in VACA’s leadership. Both tout their interest in criminal justice reform, even as they have fought efforts to overhaul the legal system. In 2016, for instance, they signed on to a lawsuit against Governor Terry McAuliffe’s executive order restoring the voting rights of Virginians who have completed their sentences.

Morrogh testified in Congress in 2014 that the Obama Administration’s proposed sentencing reforms would “roll the dice with the safety of America’s communities.” His campaign did not respond to a request for comment about his view on the fairness of sentencing in Virginia.
Stamos told me that “Arlington does not engage in mass incarceration” when I asked her if she thought Virginia’s incarceration rate was too high.

In an event held in May 2018, she similarly said “mass incarceration” was “a term that is used to deligitimize what we do because there isn’t a prosecutor in this country that engages in mass incarceration.” Prosecutors “don’t round up people in a mass way,” she explained, but instead treat people as individuals.

But prosecutors enjoy wide discretion to handle individual cases in a more- or less-punitive manner. Kira Lerner reported in The Appeal this week on Stamos’s office’s history of aggressive charging practices, which have resulted in children being detained over low-level offenses.

A pattern of individual cases can accumulate into an unequal system. Stamos touted the decrease in the jail population, and it is true that Arlington’s per capita incarceration rate is lower than the statewide average, according to the Vera Institute of Justice’s database. But, for Black people, this rate is higher than the statewide average. African Americans make up 9 percent of Arlington’s population but approximately 60 percent of people who are convicted of marijuana possession, trespass, or larceny, according to an analysis by the state Supreme Court. Stamos told The Appeal that this disparity is due to people “coming into our community and committing offenses” from elsewhere. “Arlingtonians are very law-abiding, as it turns out,” she said. “It’s other folks coming from other areas of the region.”

The candidates’ differing attitudes toward systemic reform plays out in specific policy areas and in their understanding of prosecutorial discretion.
First, take the debate that has unfolded over marijuana. Dehghani-Tafti and Descano both told me they would decline to prosecute marijuana possession altogether. In rejecting that stance, Stamos and Morrogh have both criticized the very principle of declination (a default policy of not using certain charges). “I do not think it is the role of the Commonwealth’s Attorney to decide not to prosecute certain types of crimes because of her personal opinion,” Stamos told me in a written message. Morrogh has made the same point on the trail.

Dehghani-Tafti argues that it is misleading for prosecutors to minimize their discretion and to say they are merely enforcing laws. “This is a shell game of prosecutors saying, ‘we have no discretion, we just follow the law,’ and then turning around and making sure that none of their tools are taken away from them,” she told me, referring to prosecutors’ legislative lobbying. Last year, for instance, VACA opposed a bill to decriminalize marijuana possession.

Second, take voting rights. Stamos and Morrogh have said one reason for their suit against McAuliffe’s executive order restoring voting rights was the blanket nature of its first iteration, namely that it was meant to cover all cases at once. When courts overturned McAuliffe’s initial executive order, the governor turned to restoring voting rights on an individual basis.

Stamos told me of McAuliffe’s “en masse” order that “too many individuals whose rights were restored were still on probation, owed restitution to crime victims and, in some instances, still incarcerated at the time their rights were restored.” She said that she backs “comprehensive legislation” to expand rights restoration, but she did not answer whether she supports restoring the rights of people who are incarcerated or on probation, or of people who still owe financial obligations. Morrogh did not reply to my request for comment on disenfranchisement.

Both challengers are pushing far beyond McAuliffe’s position. Dehghani-Tafti told me that she supported the full abolition of felony disenfranchisement. This would allow people to vote from prison. Descano told me “I haven’t seen any reason why” anyone is stripped of the right to vote.

Both primaries are marked by other reform proposals and policy disagreements.

Death penalty: Both challengers ruled out seeking the death penalty in interviews with the Political Report. Neither incumbent has ruled it out. Stamos said in a debate that she would “be just fine” with the legislature repealing capital punishment.

Charging practices: In answer to my questions on declination, neither challenger listed charges other than marijuana that they’d decline to prosecute; others prosecutors have extended declination to broader categories, including in Dallas and Boston. But Descano said there were offenses that he would like to “prosecute in a different way,” and that a priority would be to reduce the share of people with felony convictions, for instance by refraining from filing the highest allowable charges. He told Inside Nova that he would not charge theft of property under $1,500 at the felony level. “I’m not going to ruin somebody’s life and put them in jail for stealing an iPhone or making a single mistake,” he said.

Diversion: Morrogh, the Fairfax prosecutor, has touted a program that prioritizes alternatives to incarceration for people with mental health or substance use problems. Descano, his challenger, told me that he would like to create diversion programs for which people qualify without needing to first plead guilty. Morrogh did not respond to a request for comment on whether he would expand pre-charge diversion options.

Prince William County

A commonwealth’s attorney since 1968, Paul Ebert has made Prince William County a national epicenter for the death penalty. The Post wrote last year that Ebert has obtained more capital sentences than “any other prosecutor in Virginia.” He replied that “very few” people “qualify for” the death penalty, but “for some reason, Prince William seems to get people who qualify.

This explanation obscures commonwealth’s attorneys’ discretion. He should know. His tenure has been marred by complaints of excessive or inappropriate behavior, including a case Radley Balko dubbed “one of the more brazen examples of prosecutor misconduct in recent memory.”
Ebert, a Democrat, is retiring this year after 51 years in office, and two Democrats are running to replace him in next week’s primary. Amy Ashworth is a former prosecutor who now works as a private attorney, and Tracey Lenox is a criminal defense attorney who is running with Ebert’s endorsement.

In separate interviews, both candidates highlighted changes they’d make to his office, though neither endorsed the bolder reforms proposed by Descano or Pahghani-Tafti. Both said they wanted to restrict the use of the death penalty, but neither ruled out seeking the death penalty.

Both talked of de-emphasizing prosecution and incarceration over low-level charges. Lenox told me she would seek to “divert and dismiss” most “nonvictim misdemeanor charges” because it “doesn’t make sense” to “be seeking convictions” for offenses like marijuana possession and driving with a suspended license. Ashworth mentioned the same examples to explain that “it is not smart to focus on prosecuting victimless crimes.” Regarding the scope of cases fit for diversion, she repeatedly specified that she was talking of first-time offenses.

Some prosecutors who look to de-emphasize low-level charges have rolled out declination policies, but Ashworth and Lenox both spoke against this approach, including for marijuana possession. Ashworth argued that a blanket declination policy would violate her oath of office. Lenox offered a more strategic explanation, namely that it could generate a backlash against reform among other stakeholders. “Diversion is the easier project, because then you can give the judges something to hang their hat on,” Lenox said.

A more straightforward difference emerged when I asked how they would each change the legal system’s approach to offenses involving violence. Both invoked Virginia’s non-mandatory sentencing guidelines (recommended ranges for different types of cases) in their response, but to contrary effects. Lenox questioned the guidelines’ neutrality, arguing that they reflect “norms” inherited from a time where “high incarceration was the solution to things;” she said she wants to create opportunities for below-guideline sentences. By contrast, Ashworth declined to assess the guidelines’ fairness, and emphasized the value of using them as a constraint in order to be consistent and reduce the disparities that can accompany sentencing.

Prince William County is one of only two counties in Virginia in ICE’s 287(g) program, which deputizes local law enforcement to act like federal immigration agents. While terminating this contract falls outside of the commonwealth’s attorney’s jurisdiction, both Ashworth and Lenox told me that they opposed the program and would advocate against it if elected.

Mike May, a former county supervisor, has already secured the GOP nomination. The county has a history of voting for candidates from both parties, so the general election could be competitive. The Political Report will return to May and the general election in the months ahead.

The post Tuesday's Elections Could Overhaul Prosecution in Northern Virginia appeared first on Bolts.

Update (June 6, 2019): Read our preview of this election. 

Arlington County and Falls Church City, in Northern Virginia, are voting for their prosecutor this year. Theo Stamos, the incumbent commonwealth’s attorney who has drawn criticism from proponents of criminal justice reform on such matters as bail and voting rights restoration, faces a challenge from Parisa Dehghani-Tafti, the legal director of the Mid-Atlantic Innocence Project and a former public defender. The two will face off June 11 in the Democratic primary.

The Political Report talked to Dehghani-Tafti this week about the goals she has in mind when promising to “dismantle mass incarceration,” about the role she thinks prosecutors and their state association (the Virginia Association of Commonwealth’s Attorneys) play in mass incarceration, and about the reforms she is proposing on youth justice, bail reform, discovery, and other issues. The interview has been condensed and lightly edited for clarity.

You launched your candidacy by calling for reform, and in your announcement, you wrote that you “want to dismantle the mass incarceration machine.” What do you think are the drivers of mass incarceration in Virginia, and what aspects of Arlington’s criminal justice system do you believe must be overhauled in priority?

I think the drivers of mass incarceration are in Virginia are not that different from around the nation. I think it’s a combination of criminalizing nuisance behavior, really intensive focus on drug prosecution, a very low felony larceny threshold (in fact Virginia is one of the lowest in the entire country), and pretty harsh sentences, or a harsh way in which prosecutors charge and overlap charges in order to have a harsher sentencing scheme. In Arlington, we focus a lot on things like simple marijuana possession. In the span of five years, for a jurisdiction that has about 250,000 people, we prosecuted more than 2,700 simple marijuana prosecution cases.

Why do you think the position of commonwealth’s attorney is a good place from which to change this situation? Theo Stamos, the incumbent, reacted to your candidacy by stating, “If she wants to decriminalize marijuana, she should go to Richmond.” So what makes this a relevant office from which to fight mass incarceration?

Prosecutors are the head law enforcement, or public safety official, within the court system. And they’re the ones who ultimately decide what the priorities are in terms of what gets prosecuted, what the priorities are in terms of what amounts of the community engagement they have. Most offices like the Arlington office are not transparent about who they are prosecuting, what kind of crime they’re prosecuting for, who is getting diversions, what the socioeconomic backgrounds of the victim’s are, as well as the defendants. They’re content to keep all of that in a black box. Prosecutors are content with the public not really knowing what they do on a day to day basis, because maybe if people knew they wouldn’t get reelected.

They’re saying, ‘All I do is enforce the law, I don’t make it, and if you want reform go to your legislature.’ Yet when it comes time to reform, when legislators propose bills — just today with the bill that would prosecute the execution of the seriously mentally ill, last week there was a bill that would permit people who are innocent but convicted on unreliable science to get back into court to challenge their convictions, earlier it was decriminalization of marijuana — the Virginia Association of Commonwealth’s Attorney is down in Richmond every single day of session, and opposes reform after reform after reform, and these bills get killed.

This is a shell game of prosecutors saying, ‘we have no discretion, we just follow the law,’ and then turning around and making sure that none of their tools are taken away from them.

That gets to a question I had on the Virginia Association of Commonwealth’s Attorneys, which, as you just said, lobbies for or against certain changes in Richmond. You mentioned their opposition to bills to decriminalize small amounts of marijuana, or they’re now calling for a bill to expand prosecutors’ ability to file murder charges in the aftermath of a drug overdose. So how would describe the attitude that you would have toward the association if you were elected, in terms of your involvement and membership in it?

When I’m elected, I’ll have to see. I’m hoping that I’ll be elected with a wave of other reform prosecutors—there are six of us up for election this year. I think if there is a way to transform the association, I would like to be a part of that. If there’s not, right now they don’t speak for me.

The new executive director, I believe his priority is to pass the homicide law that you were just talking about, and I don’t think that’s going to stop people from overdosing. I think what it’s going to do is that it’s going to cause more deaths because people are going to be afraid to call in overdoses. That doesn’t keep us safer. I think that law is designed as part of the toolkit that prosecutors want, a laundry list of capital offenses, lots of low-level drug crimes, low felony thresholds: These kinds of laws give them enormous power to compel guilty pleas and raise their conviction rates. But I can’t under the best of circumstances imagine a way in which preventing someone from calling in a drug overdose makes us safer.

Are you concerned that a prosecutor’s job makes it inherently constraining for someone who is interested in overhauling the system? In December, the Harvard Law Review published a note that stated, “Tweaking the criminal legal system by introducing nontraditional prosecution methods ignores the fundamental truth that this system was never intended to keep marginalized people safe.’” How do you think about, or how would you respond to, this criticism that reforming the system from the inside risks not going far enough?

I think it’s a legitimate concern, but I think that working on the system from the outside also has its drawbacks. I have been working on creating a fairer and more just and more accurate justice system from the outside for almost 20 years. The thing that drove me to try to effect change from the inside is the parable where the villagers start to see babies coming down the river, and they’re plucking the babies out of the river, and then one person starts walking upstream, and everybody says why are you walking upstream, help us get the babies out of river, and the individual says, ‘Well, I’m going to see who is throwing them in.’ I’m not a naive idealist, I understand that people do bad things, and there needs to be appropriate punishment, and we need to create communities safe. But I think at the end of the day, we need to try to effect change from the inside. The data that we have from organizations like the center for Fair and Just Prosecution shows that these reforms can work. I don’t think we’ll ever have a perfect system, but right now I think going in on the inside and trying to reform based on evidence and based on data is about the only choice we have.

You currently work at the Mid-Atlantic Innocence Project, which looks to build legal cases that establish the innocence of people who have already been convicted. And in the past you have worked as a public defender. How would your past work influence how you would approach the position of commonwealth’s attorney?

The seam that’s run through my work has always been truth, and accuracy, and fairness. What I do now is I look at cases, and we investigate sometimes 10, 20, 30, 40 year-old cases, and in order to prove somebody innocent what you really need to do is reinvestigate the case from scratch, you have to be able to talk to witnesses and convince them to talk to you, you have to know where to investigate and where to find record sand documents, and then you have to affirmatively prove innocence. And you have to coordinate with all stakeholders in order to get anything done, including prosecutors. I think what it gives me is a collaborative perspective on being a prosecutor. I know how to build a case, and I know what needs to be proven in order to get to a point of prosecuting somebody, and it gives me a critical eye on things like forensic sciences and the other things that cause wrongful convictions, while at the same time maintaining my empathy for all of the parties involved including the victims and the survivors.

Would you implement new policies as prosecutor toward existing convictions: either to review possibly tainted cases for innocence, or, besides innocence claims, to retroactively review lengthy sentences that people have received that you deem to be excessive? Is there room to push further on either fronts in the office?

The first thing I would like to do in the office is forward-looking. It’s to invite some of the organizations that do data-analysis to come in and look at what the office has been doing, and to collect data, and to share the data with the community so that we have a very clear sense of where we’ve been, and work with the organizations to figure out what are the best practices going forward for that office. Without committing to doing anything in particular based on those recommendations–I would act according to those recommendations, and see what they said.
I am very interested in creating a type of Conviction Integrity Unit to review the accuracy of convictions in cases of folks who are claiming innocence. In Virginia, it’s extraordinarily hard to get records in a case. There’s the Freedom of Information Act, but if I file the equivalent of that in Maryland I get the police investigations file, I get the state’s attorney’s files. In Virginia, if you file a FOIA with the police department, most police departments will tell you there is a file by that name and they are going to exercise their discretion not to give it to you. So it’s very hard in Virginia to find evidence of innocence after you’ve been convicted.

There is another piece of this. In Virginia, even as a defendant when you’ve been accused, you don’t have the right to the police records in your case, you don’t have the rights to documents and discovery in your case. It’s astonishing, right? If you have a civil suit, both parties are required to exchange information, you know what witnesses the other party plans to use, you’ve had a chance to depose those witnesses, you’ve exchanged documents and records. In a criminal case, that doesn’t happen. So you have no rights to it. Virginia is very much an outlier on this issue, and so we’re never going to get to a place where we’re getting documents after a conviction if we’re not getting records and documents before somebody goes to trial.

If you were to come into office, would you change the practices of the prosecutors in your office in terms of how they communicate the discovery with the defense attorneys?

The commonwealth’s attorney in Arlington, their office does not give documents to the defense. What they do is that they permit defense attorneys to go into the commonwealth’s attorney’s office where they have to sign an affidavit promising that they will not photograph, sign or copy documents in any way. They’re permitted to take notes of whatever files the commonwealth’s attorney gives them. That’s what passes here for open-file discovery.

I would give electronic copies of whatever I am permitted to give by law. If there’s a situation where a witness, or somebody’s safety is at issue, I would seek a protective order from the court so that the attorney can see it but the defendant can’t. That’s what happens in D.C., and that’s what happens in Maryland, and it’s a system that works.

I want to go back to what you said about prosecutors’ discretion to bring charges. Some prosecutors have adopted policies of declining to prosecute certain types of cases. The commonwealth’s attorney of Norfolk recently said that he would not prosecute simple marijuana possession; Rachael Rollins, Boston’s new DA, campaigned last year on a list of charges, which include many charges besides marijuana possession, that she would not prosecute. Are there categories of offenses that your office would decline to prosecute, and do you plan to release a list of those like Rollins did?

At the moment I would not prosecute simple possession of marijuana cases. I would have to look and think about what other specific crimes that I would decline to prosecute. But simple marijuana possession is at the top of that list, because I think largely it’s a crime that doesn’t have any victims, it’s not a crime in so many places, and I’d rather spend the resources of the office pursuing cases that have victims and that are more complex, like fraud cases, like wage theft cases, like sexual assault cases.

Are there things that you like to change about the level of charges, or the existence of charges, for drugs other than marijuana?

I would want to create more robust drug treatment programs, divert more cases into drug treatment programs, and really start treating addiction as a medical problem. I don’t think one round in drug court makes people better, and so I would try to divert cases of possession of other drugs. And we know that diversion works. We have data that diversion works.

The criminal justice system has a disparate impact on different racial groups, and reforms implemented in some states have not alleviated those disparities even if they’ve reduced overall sentences or the overall incarceration rate. How would you make sure to confront the racial inequalities of the criminal justice system, and to make sure that the changes you implement as commonwealth’s attorney actually reduce racial inequalities in Arlington?

That goes to data collection because we need to figure out where we’ve been. The public should be demanding not just conviction rates but also data about which crime are being prosecuted, what the socioeconomic background is of the defendants and the victims and the cases that they prosecute, and continue checking to make sure that what you’re doing is working, both in terms of preventing recidivism, but also trying to treat people fairly.

Much of the conversation around criminal justice reform revolves around so-called low-level offenses. What is your view toward how Virginia’s criminal justice system handles higher-level charges and categories of violent crime, and would you adopt policies to rein in the length of sentences and the amount of de facto life sentences?

Everything is going to be a case by case circumstance. The data shows that people tend to age out of criminal behavior, and that overly lengthy sentences pass the point of diminishing returns. Right now prosecutors can stack multiple overlapping charges in order to get extremely high sentences. Charging with accuracy and restraint will reduce a lot of sentences because it will reduce the world of sentences that can be imposed. But again it’s a case by case basis.

You have expressed opposition to the death penalty. What are your reasons for this position, and would you pledge to not seek the death penalty while in office?

I would not seek the death penalty. There have been 164 exonerations of people on death row in the United States since 1972. Those are 164 people who we would have killed but for the fact that they got really lucky, and there was some kind of evidence in their case, and there were lawyers willing to put in their time, usually pro bono, to work on their cases, and stuck by them for years upon years, and that there were courts or governors who were open to hearing that evidence and acting on it. By no means have we exonerated every innocent person off of death row. It’s the one punishment that you can’t walk back from once it’s been imposed. And we know from data that it’s imposed disproportionately on people of color.

You have expressed support for reforming Arlington’s bail system. What do you think are the elements that bail reform needs to both end inequality in terms of people’s financial capacities and make sure to actually limit pretrial detention, since there have been cases of reform around the country where reformers have expressed concern that limits added on cash bail will not reduce pretrial detention? How do you think that goal can be fulfilled?

I favor ending the use of cash bail for low-level charges and potentially using validated risk assessment tools for purposes of determining level of services. The presumption should be that a person should be released, unless the individual is dangerous. We know from jurisdictions that have adopted these reforms that people do show up for court and that crime does not increase with these reforms. In other words, helping people keep their jobs and maintain community ties helps keep us safer. I think that we need to educate the stakeholders and work with the stakeholders to make sure that the default does not become locking somebody in rather than releasing them, to make sure that we use technology like automatic text messaging as tools to help us. Having wrap-around services once somebody is out not only will help them show up in the court and do what they’re supposed to do in the legal system, it also helps recidivism rates.

Do you think that there is a role for the commonwealth’s attorney besides the prosecution of cases to think about how people are reentering the communities after they’ve been released?

I think that the commonwealth’s attorney has a very holistic role in the system. I think that they have a role in prevention, they have a role in helping create alternatives to incarceration, they have a role in prosecuting cases, and they have a role in ensuring that the way that they prosecute and the considerations in the prosecution lead to successful reentry. One of these things is the immigration consequences of a particular case. If you are plea bargaining and you’re the prosecutor, one of the considerations that you should be thinking about is how do the charges affect the immigration status of this person. Are you going to take this person away from their family and put the family in economic distress and that sort of thing when it’s not necessary? Or, how are we going to fashion a diversion program that will work with the Virginia Hospital Center and with the community services board, and the jail? We should all be working together to make sure that if somebody is diverted, if somebody is released, they have the services that they need to prevent recidivism. The data is very clear that these services cost less than incarceration and have a better result than incarceration. Those are the things that make us safer, and that’s what a commonwealth’s attorney should be thinking about, not just about prosecuting cases.

What do you think is the proper age at which to treat a defendant as an adult, and are you in favor of strict limits on an age below which you would oppose doing so?

I don’t think it should be an option before somebody is 16, or even at 16. Brain science tells us that people’s brains are not developed into their early 20. Right now the law in Virginia is that if you’re 14 and you do something that that would be a felony if you were an adult, you can be charged as an adult. I don’t think a 14-year can begin to make the executive decisions an adult can make. So I think that’s absolutely inappropriate.

I would want to think through a different way of treating older kids who might have done violent offenses, maybe something like a system whereby they’re treated like juveniles but then sort of reevaluated when they’re adults and their record in juvenile detention is reviewed. But I would be open to alternatives, and I would want to do them based on what evidence shows works, and what is required to keep people safe, and what is important to treat people fairly.

One issue in the election already has been that Theo Stamos had expressed concern about then-Governor McAuliffe’s policy of restoring the voting rights of Virginians once they complete a sentence. This year, bills debated in the legislature would have altogether ended the practice of stripping individuals of the right to vote when they are convicted of a felony. What is your position toward whether anyone should be stripped of their right to vote, and on how far should that practice go?

I don’t think people should be stripped of their right to vote. I know that these disenfranchisement laws were about making sure that black people would not be able to vote, and I think that we need to pull ourselves away from that history. I think without a doubt, if somebody has served their time, they should have their civil rights returned to them.

In Virginia, you have the political disability of your civil rights returned to you in one stage through the governor, and then you have to apply to a court in order to get your gun rights back. The reason I’m bringing this up is that there were some misleading statements trying to explain the reason to the opposition to McAuliffe’s executive order and connecting the opposition to gun rights. The two are not connected. There is a separate and distinct procedure that happens in court, when the commonwealth office can object, and when an individual has to show good cause to get their gun rights back. I think returning all the political disability pieces of disenfranchisement is extraordinarily important if we want to say to people, ‘you buy into the rule of law, contribute to society, and be a productive citizen,’ we can’t say then, ‘we aren’t going to treat you like a citizen.’

To clarify, the bill debated this year was to restore the right to vote even before somebody has completed their sentence and ended the practice of disenfranchising altogether. If such a bill was introduced again while you were in office, would you support it?

I would support folks who are incarcerated voting as well. If you’re going to be counted in the census, and you’re a citizen, I think you should be allowed to vote. I don’t think that keeping the franchise intact is going to create—I’m not sure what danger it is folks are afraid it’s going to create—but I don’t think it’s going to lead to anarchy. People who are incarcerated don’t lose their constitutional rights.  To be sure, the way they exercise those rights may be curtailed by the fact of their incarceration and by the need for prison officials to maintain security but generally, incarcerated individuals do not lose their right to free speech, or to free exercise of religion, or their parental rights, or their rights to marry, or indeed their right to be free from cruel and unusual punishment.  Yet, with the exception of Maine and Vermont, every state in the US deprives prisoners of voting rights. The community is not made more safe and justice is not done because you say to prisoners they cannot participate in political life while incarcerated.  The only thing the policy accomplishes is to impose another form of punishment but, in the final analysis, if what we are interested in is safety and justice, it’s hard to make a rational argument that either of these things are served by denying prisoners the right to vote.  And we should never forget that these laws are the vestiges of Jim Crow.

The post “The Commonwealth’s Attorney Has a Very Holistic Role”: An interview with Virginia Candidate Parisa Dehghani-Tafti appeared first on Bolts.