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.”

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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.

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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.”

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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.

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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.

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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.

In the June Democratic primary in Fairfax County, Virginia’s largest jurisdiction, Steve Descano achieved what seemed like the hardest lift for his prosecutorial candidacy. Running on a platform of ending mass incarceration, he ousted incumbent Commonwealth’s Attorney Ray Morrogh. Since Fairfax County leans Democratic, and Republicans had no candidate anyway, Descano looked to be the favorite to win the prosecutor’s office on Nov. 5 and roll out his proposed reforms.

But Morrogh has since joined the local Republican Party and police unions in endorsing Jonathan Fahey, an independent who jump-started his campaign against Descano in August. Fahey is a former federal prosecutor like Descano, but unlike his opponent he is running on defending the integrity of the existing criminal legal process. He calls it a “great system.” And he says electing Descano would make Fairfax “go down the road of Philadelphia.”

Further south, in Chesterfield County, Scott Miles won a special election in 2018 to complete the term of a retiring incumbent. He proceeded this year to scale back the aggressive prosecution of lower-level offenses.

He, too, has faced concerted pushback from local players such as police unions that are skeptical of prosecutorial reform. Miles, a Democrat, now faces Republican challenger Stacey Davenport, who faults his reforms for ignoring crime and for going beyond a prosecutor’s role.

A defining issue in both elections is whether a prosecutor’s office should aim to reduce the volume of felony convictions, whether by steering more defendants toward programs that circumvent guilty verdicts, declining cases, or seeking convictions on lower-level charges. 

A recent report by Justice Forward Virginia, a nonpartisan political action committee, documents great variation between Virginia counties as to the share of arrests over serious offenses that result in a conviction at the severe felony level. For Justice Forward Virginia, these disparities highlight some prosecutors’ greater tendency to overcharge, and thus their discretion to impact the volume of felony convictions and severity of sentences. Brad Haywood, the group’s executive director who is also Arlington County’s chief public defender, told me in an email that prosecutors who “produce higher rates of felony prosecutions and felony convictions” are fueling “over-incarceration.” 

Haywood called on prosecutors to create “diversion programs that might be able to rescue us from this mess: programs that help defendants charged with non-violent offenses avoid criminal convictions (or felony convictions), and that prioritize treatment for defendants suffering from mental illness and substance use disorders.”

Miles has rolled out some such diversionary policies in Chesterfield County, but his challenger wants to discontinue them. Descano, in Fairfax, has proposed doing the same if elected. “I want to keep people away from felony charges whenever possible,” he told me in April. “There is a cycle of decreased opportunity, increased poverty, increased crime. That’s what we want to break here.”

Elsewhere in the state, other candidates echo such proposals. Jim Hingeley, running in Albemarle County, told me that he would make more frequent use of misdemeanor-level charges to decrease incarceration and to “make it more likely that a person could stay in the community.” Hingeley, alongside Descano, Miles, and others like Parisa Deghani-Tafti in Arlington County, could produce a possible wave of reform prosecutors in Virginia’s Nov. 5 elections. If elected together, most have said they would use their relationships to influence legislative changes. 

Independently, they would still have authority to shape practices in their own jurisdictions. 

Chesterfield County

Miles, who won in 2018 on a promise to lower the severity of drug charges, issued a directive to his staff soon after entering office to avoid seeking jail time for those found guilty of marijuana possession. Then, over the summer, he launched a diversion program in which defendants with felony-level drug possession charges (e.g. for heroin, cocaine, or oxycodone) are given the opportunity to complete a series of treatment steps in exchange for having charges dropped. The program is operating at a small pilot scale, but Miles has said its upshot would be to process more cases than the existing drug court permits.

This program does not require that people plead guilty before accessing the lower penalties that it unlocks, though it still holds the threat of criminal charges over people’s heads. Miles told the Chesterfield Observer that, before his tenure, office policy “was to obtain the felony conviction in almost every case.” Indeed, Justice Forward Virginia’s study shows that Chesterfield County prosecutors sought and obtained felony-level convictions more frequently than most of the state’s largest jurisdictions as of 2017.

Miles also implemented other policies to forgo criminal charges, though access to those alternatives sometimes implicates a financial cost like a $60 shoplifting prevention class, Richmond Magazine reported. Miles did not respond to questions on his policies.

Law enforcement figures have pushed back against his policies on behalf of more punitive practices. Kevin Carroll, president of the county and state Fraternal Order of Police, invoked a slippery slope of lawlessness last year in response to Miles’s marijuana policies. “When we start down this road, what’s the next thing we don’t charge on?” he told the Chesterfield Observer. 

Davenport, Miles’s challenger who currently works as a prosecutor in a neighboring county, uses similar language. Of proposals to not prosecute pot possession, she said, “I feel like if you’re just continuing to ignore it or give people a slap on the wrist over and over and over again, you’re ignoring a problem. The constant use of marijuana is a problem and does lead to other drugs.” 

She also told the Chesterfield Observer that she would discontinue Miles’s initiative to avoid felony-level drug possession convictions. She faults him for refusing to “prosecute as the law is written because of your personal feelings,” and for using the office to “pursue his political agenda.” A commitment to “prosecute as the law is written” is vague, however, given the vast discretion prosecutors enjoy and given counties’ varying practices and outcomes. Davenport did not reply to repeated requests for comment on her views.

In a September statement, Miles notes that he campaigned on the policies he has pursued during the 2018 election. “I did so in response to community observations that our court system’s decades-long approach of felonizing and incarcerating those engaging in self-harm has served us poorly,” he wrote. “This office is an elected one so that the person occupying it will perform consistently with contemporary community values.” Nov. 5 is indeed likely to determine the fate of his reforms.

Fairfax County and Fairfax City

Descano, a former federal prosecutor, has also made the case that prosecutors file excessively severe charges. He told me in April that he wants diversion programs that do not require defendants to first plead guilty, so that if they complete them they do “not have that record that follows them around” — records that make future incarceration likelier. He also said he would “create a presumption that any theft under $1,500 is treated as a misdemeanor.” (Virginia’s felony threshold is $500, low by national standards.) 

His opponent Fahey, by contrast, denies that the criminal legal system needs much reform.

He has called Descano’s proposals “radical” and opposed his emblematic commitments of not prosecuting marijuana possession and not seeking the death penalty. In one radio interview, he attacked those who say that “the criminal justice system is inherently flawed and unfair and needs to be fundamentally changed.” He described it instead as “a great system we should be proud of and always work to keep improving.” 

Fahey did not respond to repeated requests for comment over what improvements he would like to see, and for his views on decreasing the volume of felony convictions. 

Fahey’s case against reform has earned him the GOP’s backing and the endorsements of the two Democratic prosecutors who lost to decarceral challengers in the June primaries: Morrogh, who lost to Descano, and Theo Stamos, who lost to Dehghani-Tafti in Arlington County. Morrogh and Stamos have histories of fighting reforms proposed by others in their party. In 2016, both joined a lawsuit against then-Governor Terry McAuliffe’s executive order to restore voting rights; in 2014, Morrogh testified in front of the U.S. Congress against the Obama administration’s proposals to reduce prison sentences.

Stamos said in 2018 that “mass incarceration” is a term “used to delegitimize what we do,” and Fahey echoed that language on a radio show this fall when he argued that “the agenda for these George Soros candidates is essentially to delegitimize the entire process.” A political action committee funded by Soros provided Descano significant financial support before the June primary; Fahey has raised more than twice as much money as Descano since July 1, according to campaign finance statements filed by both candidates as of Oct. 15.

Descano, meanwhile, has rolled out endorsements of his own from state prosecutors who have launched reforms, such as Portsmouth’s Stephanie Morales, who is now declining to charge people for marijuana possession. Nov. 5 will decide whether the ranks of those reformers grow.

The post Reform Candidates Face Pushback in Virginia 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.

In Northern Virginia, numerous commonwealth’s attorneys are facing challengers who say that the criminal legal system needs reform. In Fairfax County, Virginia’s largest jurisdiction, Steve Descano is running against incumbent Raymond Morrogh in the June 11 Democratic primary.

The Political Report talked to Descano, a former federal prosecutor, about what he means when he calls for “ending mass incarceration.” In the interview, Descano explained that he wants to change charging practices to reduce the number of people with felony records, for instance by refraining from filing the highest allowable charges. He said he would not prosecute marijuana possession, but added that with other offenses he would “prosecute in a different way” rather than decline to prosecute. He said he would never seek the death penalty, and took issue with the politics of the Virginia Association of Commonwealth’s Attorneys (VACA), promising to build a “counterpoint” to their influence.

The interview has been condensed and lightly edited for clarity.

On your website, you state a goal of “ending mass incarceration.” I want to start by better understanding what you mean by this. What does the condition of “mass incarceration” mean to you, in terms of what you mean to capture by it, and what role do you think prosecutors play in relation to it?

When a lot of people think about mass incarceration, they think about the number of people in jail or prison at one time, and of course that is part of it. But also I like to think of it as a broader phenomenon that includes people who may not be in jail or prison at the moment but have been put on a path to jail or prison because of prior interactions with the criminal justice system. It’s mass incarceration, but it’s broader than that. It’s this mass net of getting people into the criminal justice system whether or not they are technically sitting in jail at the moment.

As far as what I think the causes of it are, my thinking on this is very much influenced by the work of John Pfaff. I really believe his arguments, his research. I think of both your stock and flow problems. From the flow, you have people who are in jail pretrial, in many cases because they can’t afford cash bail. And then the stock problem, this is the people who are in prison. I think that over time prosecutors have charged more felonies, and have charged things as felonies instead of misdemeanors. I think in both of those respects, prosecutors are really the drivers in a lot of ways. People talk about police, but we know that police can only bring individuals to the courthouse steps. It’s the prosecutor who lets them in. People also think about sentences and blame judges, but in a lot of cases, by the time a prosecutor gets a case to the judge, they have tied the judge’s hands for sentencing based on the type of crimes they’ve charged.

For me, it does all come back to the prosecutor. When we’re talking about the flow problem with pretrial detention, of course the prosecutor has the ability to ask or not ask for cash bail. On the stock problem, which is people who are in jail or prison for long sentences, that is an issue that comes down to charging, and that’s completely within the discretion of the prosecutor. So 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, just by simply changing the way that you charge crimes and no longer asking for cash bail on the pretrial detention.

As to what it means to end mass incarceration, do you have a specific goal of what you’d like to accomplish in your term as prosecutor, either in terms of how much to decrease the incarcerated population or of a broader goal of what you can accomplish over one term?

I think at this point just picking in terms of saying I’d like to reduce the incarcerated population by X percent is problematic for two reasons. The first one is that one of the criticism I have of our current criminal justice system is that it is very opaque, that it operates in a black box, that there is no transparency and there is no accountability. Part of this is there is no access to record, to charging information or plea decisions, or breakdown of why people are in jail. Not having that information is what makes picking a number like picking a number out of the hat. The second part of that is that I don’t think the goal is to say a percentage. I think what we need to do is go back to first principles and think about what is the purpose of jail and what is the purpose of prison. With those answers, the goal is not a number. The goal is to only have people in jail or in prison whose presence there would actually coincide and be served by being there, based on how we answer the question of what is the reason for jails and prisons to exist.

Some of the positions you defend are at odds with those defended by the Virginia Association of Commonwealth’s Attorneys, the statewide group through which prosecutors lobby for certain policies. What role do you think the association has played in shaping of the state’s criminal legal system, and if elected would you be a member of the association?

Traditionally they have played a role to make our criminal justice system more conservative and more regressive than it needs to be. As an example, one thing people may not realize is how restrictive criminal discovery is in Virginia. It’s colloquially called trial by ambush here because you’re not really entitled to anything – you’re not entitled to police reports, you’re not entitled to witness lists. It’s been a long fight for people who want more progressive criminal justice to try to change those rules, and for years VACA has fought back against this, and they have offered specious reasons for this that don’t really make any sense other than to continue to have prosecutors have an advantage. That’s one example, there are a number of others. They hold a lot of power in Richmond, and they exercise that. They’ve had a limiting factor on what we’ve been able to do.

If I was elected commonwealth’s attorney, I would be a member of VACA. I would join because I would want my vote to be counted.

But I don’t think that’s enough. Fairfax County is the most populous and in a lot of ways most powerful county in the commonwealth. In my mind, this is a bully pulpit position. The opportunity that we have is to be in the vanguard of criminal justice reform in the commonwealth. What I would commit to do is use that bully pulpit position to travel all around the commonwealth to create a coalition of progressive-minded prosecutors, attorneys, advocates, stakeholders to try to act as a counterpoint to VACA. I plan to be a member so that I can vote when I disagree with policies VACA is pushing. 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.”

Returning to your point about discovery, part of that depends too on how prosecutors act. A reform mandated by the state Supreme Court has been delayed until mid-2020. In the absence of legislation, would you commit to open file discovery practices that allow the parties involved in a case to access this information within a certain timeframe after indictment or arraignment?

Yes, a hundred percent. Open file discovery is very important to me: And when I say open file discovery, I don’t mean you can come in and take notes and take pictures. I mean I want to give people electronic copies of what we have. My background is as a federal prosecutor. I did some white-collar cases where we would have over 300,000 pieces of documentary evidence, and as soon as we got a copy of it, the defense got a copy of it as well. A prosecutor’s job is not to win cases, a prosecutor’s job is to do justice. And part of doing justice is by creating fair trials. I think that is what people need to build their defense, and they should have that opportunity.  It is also a great way to keep from convicting an innocent person, by giving the defense more evidence and giving it to them in a timely manner. They might see something that the police or the prosecutors hadn’t that would prove that their client is not guilty of a crime.

I want to ask you about sentencing. Your opponent, Raymond Morrogh, testified in front of the U.S. Congress in 2014 against the Obama administration’s proposals to reduce prison sentences at the federal level. He said this would “roll the dice with the safety of America’s communities.” What is your view of Virginia’s existing sentencing guidelines, and are there specific ways in which you wish to use the powers and discretion of this office to impact the length and severity of sentences?

You know, in general, I am not a fan of mandatory minimum sentences. I think that what they do is they give prosecutors even more power to in a lot of ways bully people into pleas and threaten them, and again that’s not doing justice, which is the primary role of the prosecutor.

A lot of that goes back to even before you get to the sentencing discussion. A lot of that is on the charging discussion. I think from the role of the prosecutor, the first step is what type of charging decisions you make. I’m a big believer that prosecutors are charging felonies when misdemeanors are appropriate. I would want to look to charge misdemeanors instead of felonies when available and appropriate, and of course that changes the sentences that are available. In the cases when you are charging felonies, because that’s what’s appropriate, I would want to do independent determinations on a case by case basis to see what is actually the need here, because I think a lot of prosecutors reflexively go for whatever the high side of the guidelines are, the high sentence of the maximum allowable. I have a big problem with that because the criminal justice system, part of it is giving the community what they need, and I think that the community does not necessarily need every single person who walks through the prison doors to have been tagged with the maximum sentence allowable by law or the maximum sentence in the guidelines range.

What is your view on how higher-level offenses are treated? Virginia can have harsh sentences when it comes to life, life without parole sentences. Do you think life without parole sentences are appropriate?

I think that when you talk about life without parole sentences – when I talk about those, I have to talk about death penalty cases. I’m against the death penalty, period, full stop. It’s not anything I’m ever going to ask for because we know that death penalty sentences don’t deter crime generally, they’re racially discriminatory, and they just cost an exorbitant amount of money to try and defend. So I would never ask for a death penalty case.

For some of those cases that would be death penalty eligible though, I don’t think it’s outside of the realm of possibility to say that a life without parole sentence would be appropriate. While I wouldn’t say that I am a huge fan of life without parole sentences because I believe in rehabilitation, I believe people age out of crime, I believe that people can mature, I don’t think I would ever been in a position to say that I would never, ever as a general rule seek a life without parole sentence, in the same way that I am able to say never, ever as a general rule will I seek the death penalty.

One of the reforms that the statewide association has pushed this year is expanding prosecutors’ ability to treat a drug overdose as a homicide. What is your view on whether homicide charges are appropriate responses to cases of overdose?

I generally do not feel that those are appropriate responses to drug overdoses. We have to take a look at what is the hierarchy of needs here. The baseline need here is that, yes, we may have people who are addicted to drugs, we may have people who have this illness, this substance abuse, but they are still our neighbors, and they still deserve help, and they still deserve to be treated as members of our community. Therefore, the primary thing that you want from people who overdose is that you want to save their lives. In a lot of those cases that drug came from the friend, or the wife, or the boyfriend who they were also getting high with. We know that the line between drug dealing and drug using can be blurry sometimes. People know this. People know that if they’re going to be liable for murder charges, if they call in because someone they’re getting high with is having an overdose, it increases the likelihood that instead of calling the police, calling 911 to try to get this person help, they are going to leave because they are worried about their charges. What this type of response does is it increases the fatality of overdoses, and is yet another example of a tough on crime approach that will not work, that will only make the problem worse. We need to be focused on helping people with drug addiction, beating their addiction, coming out on the other side as fully functioning members of our society who can go get an education, get a house, get a job, support their families, and have their drug addiction under control. That’s what the goal is. This extension of tough on crime-era penalties is not going to do that.

Following-up on this, you say on your website that “addiction is an illness, not a crime” and that “we must seek out alternatives to criminalizing those who simply need help.” What are alternatives to criminalization that you think should be pursued? What do you think the role of a prosecutor should be in addressing the opioid epidemic? How do you address the idea that prosecutors playing an active role is another way of making it a criminal issue?

For questions of addiction, what I would want to do is push to create diversion programs. If people were going to go to wrap-around services, to rehabilitative services, hopefully medically-assisted treatment services because we know that that is the goal standard, and if they were able to go through that process and complete the program, then their charges, if they were simple possession, would be dropped.

Again, we don’t want people to just beat their addiction, we want people to beat their addiction and come out on the other side being fully functioning members of society where they don’t have a cast on what they’re able to do because of a felony conviction. The approaches that are, well, “we are going to prosecute you and then while you are in jail you are going to get treatment,” or “we are going to prosecute you but then will offer you services,” that only attempts to solve half the problem. They’re forgetting the part where people need to be able to go to school, get an apartment, get work, because we know that when people can’t do that, they become poor. There is a cycle of decreased opportunity, increased poverty, increased crime: That’s what we want to break here. That’s what I would look at in terms of an alternative to prosecution. It falls to the commonwealth’s attorney to pick up that mantle and push to build that coalition and build those programs.

To your question of how can you avoid it looking like prosecution because the commonwealth’s attorneys are involved: First of all, the biggest thing is, if you complete the program, depending on your charges, the charges would be dropped. But I think that just by definition of how the issues would come into the system, they would come into the criminal justice system. I’m not afraid of the way that it looks, all that I care about are the results. I think that through the power of the prosecutor, building those coalitions, through that ability, you are able to get the results that you want.

I want to ask you about marijuana specifically: Many prosecutors this year have announced new policies on this. The chief prosecutor of Baltimore announced that she would not prosecute cases of marijuana possession at all. What would be your policy on marijuana specifically, and would you prosecute any cases of marijuana possession?

I would not prosecute cases of marijuana possession. I take a look at what marijuana possession cases are. First of all, there is a racially disparate impact. We know that African Americans and white individuals use marijuana roughly the same rate, but in Fairfax if you are African American you are three times more likely to be arrested for marijuana possession than if you are white. So there is a racially discriminatory impact. That’s one reason why I wouldn’t prosecute these crimes.

The other reason why I wouldn’t prosecute the crimes is even if you were to put this person through a diversion program, the way the diversion programs are currently set up, you have to plead guilty to get into them, which means that that arrest can never be expunged from your record. To have that consequence that follows you around for something that is not necessarily posing a danger to society seems ridiculous to me.

The other part of this is: In Fairfax County we have a wonderfully diverse community, and we have a high percentage of immigrants, individuals who are not citizens, and a lot of those are in blended families. When you do prosecute this type of crimes, that creates a legal quagmire for our immigrant neighbors because depending on the weight of the marijuana that you had you can be automatically deportable, or you can be automatically excludible, meaning that if you go visit your family in another county you can’t get back home into the country. It breaks our families apart. What I want to do as  commonwealth’s attorney is to keep our community strong and united, and civil possession of marijuana cases do the opposite of that for no real public safety benefit, and because of that they’re a waste of resources, and something that I would not put my resources for.

You were just saying that with marijuana cases to be diverted people would have to plead guilty. How does that relate to what you said earlier about drug possession generally and pre-trial diversion programs with which you’d be able to drop the charges? Would you have the tools to make sure that individuals don’t have a record that follows them around?

The way diversion programs are used now, people plead before they get to the program. I want to create programs where people are able to get to the program prior to their disposition so that we would have the opportunity that if they made it to the other side th­­at would not have that record that follows them around. When you asked about mass incarceration earlier, I said not only people who are in jail but people who are on the path to jail. Those are the type of people explicitly that I think of.

Two weeks ago, Rachael Rollins, the district attorney of Boston, announced that her default position would be to not prosecute a list of 15 offenses, and that she would adopt a presumption of declining charges pre-arraignment? What are your thoughts on this approach? It sounds like you are saying that marijuana possession falls into such a category for you, so are there other types of behaviors that you want to treat in that manner?

There are some. Of course a lot of this will be getting in the office and taking a look at the data, but I can already see where there are some problems. We talked about marijuana possession. We talked about simple drug use, trying to create a program where we are able to divert that to get them into treatment.as opposed to traditional prosecution. There are other instances where I make the decision, not not to prosecute, but to prosecute in a different way. A great example would be felonies. In Virginia the felony larceny threshold is $500. First of all that this is a very low number. The data is clear that you can raise that felony threshold easily to $1,500 and not create a corresponding increase in property crime. So that’s what I would do: I would create a presumption that any theft under $1,500 is treated as a misdemeanor. The reason for that is because the difference between felony and misdemeanor charges are very different, but also if you can come in with a misdemeanor theft charge you are possibly eligible for a diversion program, and I want to get people in a diversion program whenever possible. Second to that, I want to keep people away from felony charges whenever possible.

Your opponent signed unto a legal brief challenging Governor Terry McAuliffe’s policy of restoring the civil and voting rights of all Virginians who complete their sentence. What’s your position on whether people convicted of a felony conviction should be stripped of their right to vote at any point, and if so how far do you think that practice should go?

I haven’t really seen a justification for why individuals who are convicted of felonies or who are serving their sentence are stripped of their voting rights at all. Obviously within some restrictions, the individuals don’t lose some of their other inalienable rights such as the right of free speech, right to assembly, right to worship. I haven’t seen a good justification of why voting is the thing that they lose. Now, the justifications I have seen are racially discriminatory, and they’re about keeping people from exercising the franchise. It’s very very clear on its face, one of the things that really shocked me. My opponent claimed that it never occurred to him that this had a racially discriminatory impact, and it just seemed to me that that was inexcusable because it’s clear on its face that this is why the reason why that was put in the Constitution.

That’s a long way around saying that we’ve got to think about what the criminal justice system is meant to do. I haven’t seen any reason given as to why people being stripped of their voting rights furthers the mission of our criminal justice system should be.

You’ve sat on the Fairfax County’s Police Civilian Review Panel. What has that experience taught you about how to deal with allegations of police misconduct, and what power do you think civilian boards should have in investigating such allegations?

Serving on that panel is something I was honored to do, I thought we made great progress. I was one of the initial nine members on that panel, and I helped set it up. It wasn’t necessarily in our charter but it was important to me that we got the community involved. The thing that was driven home to me was that people wanted to feel like there was transparency and accountability and that their voices were heard, people wanted to be able to trust their CJ system to do the right thing when allegations of misconduct came up. What I took from that is you cannot build that trust on the day a crisis hits, you need to build that trust in big ways and small ways every other day of the year. So from my perspective as a future commonwealth’s attorney, what I came to learn is that we have done a bad job at building trust between the commonwealth’s attorney, our criminal justice system, and our community. That needs to be job one, which is to rebuild that trust. That’s why I am going to be transparent and accountable. That’s why I’ll be all over the community, that’s why I’m going to invite outside organizations to come in look at our data and find out where we’re having disparate impacts, having issues, put that information out, put out my plan to fix it, go around the county talking to people and letting people in, getting different viewpoints and bringing that all back into our policies and procedures in  the office. What I’ve come to learn is that people need to trust the commonwealth’s attorney’s office when there is a crisis, they need to trust it to deal with it fairly and efficiently and effectively. I know that just saying that doesn’t put anybody at ease or solve the problem, so solving the trust will be a real priority for me.

Do you think that investigations into police use of force or police misconduct should be in your hands as a commonwealth’s attorney or are there instances where you would want to entrust an independent party and find ways to not be entangled in conflict of interests?

I think that ideally, what I would like to see is an independent prosecutor’s unit and an independent investigative unit housed out of the AG’s office that does nothing but these cases around the state. The reason I think that would be best is twofold. This would be an organization that would build real expertise in this area, and I think that can be extremely helpful. The second reason is I think that people need to be able to hold an elected official accountable for what happens with these cases. Obviously it’s dispersed somewhat, but people would be able to hold their attorney general accountable in an election for how these cases were handled.

Without that unit existing, I think it is incumbent upon the commonwealth’s attorney who is accountable to the population to be the one to make these calls because again people need to be accountable, and I think people would accept that rationale. I think just handing it over to another prosecutor in another county doesn’t work for a number of reasons. The first one is all our counties are different. I’m running a value-based campaign, trying to get the values of Fairfax County into this office. Different counties in a different part of the commonwealth are going to have different values, they’re going to want different things in the criminal justice system, and I don’t necessarily think that in the biggest most important cases, the people of Fairfax County should hand over the decision to an office that doesn’t necessarily share these values. At the end of the day, I think your local commonwealth’s attorneys are elected to make hard decisions, and that’s the job. They should not be running from that, they should not be looking to take the easy way out.

Studies have shown that lowering charges or sentences need not remove the unequal racial impact of the criminal justice system, so how would you proceed to specifically go after the racial disparities of charging and sentencing decisions and to make sure that your reforms are curbing racial inequality?

You’re right it’s not just a one-stop solution here. The first thing I want to do is to invite an outside investigation to find out where our systemic discrimination and where our racial discrimination lie and focus on that like a laser because I’m a big believer that these are systemic problems and we’re never going to solve them without a systemic approach to it.

We talked about the drivers of mass incarceration, one is pretrial detention. We know that ending cash bail will help, but we know that when we rely on our algorithmic tools, we need to make sure that those in fact are racially neutral, and right now they are not necessarily racially neutral. So what I want to do is to continue to push on the committee that handles pretrial to really continue to shape those tools to make sure that they’re not racially discriminatory. As a matter of fact, earlier this year I was down in Richmond lobbying for a bill that would collect data on pretrial outcomes so that we could get that data in one place to start that process. Now, that bill did not pass. But what I want to do is continue to push on bills like that, and continue to push on the organization that is in charge of our pretrial algorithmic tools.

Another thing that I would want to do – again, we have a wonderfully diverse county in Fairfax County. In case you could not tell from my website, I’m a straight white male, I can be the most straight white male in history, but my lens is still my lens, which means that I need to bring individuals from different backgrounds and different experiences into the office. Not for tokenism purposes but for purposes of building relationships with our diverse communities. I want people who understand and have shared experiences that I don’t necessarily have. And I want to bring that back into the office so we can use that knowledge to create policies and procedures that will hopefully better serve those communities and get at racial discrimination.

A subsidiary benefit of that is that, particularly in Fairfax County we have a very non-diverse bench, and I’ve been to enough courtrooms to see, just from looking, that there are problems with a non-diverse bench. One of the subsidiaries benefits of bringing in individuals of different backgrounds into the prosecutor’s office is that it builds the bench for the bench going forward. We know that a lot of judges come from prosecutors’ offices or have experience as a prosecutor. By bringing in individuals and bringing them into leadership in our commonwealth attorney’s office, we are creating better candidates for the bench down the road. Of course, pushing for a more diverse bench – our bench in Virginia is elected by our legislature – and advocating for more diverse candidates is something I can do in the short term. But building the bench for the bench is something I can do through hiring practices that will have a long-term effect. Now, these all are not silver bullets, but when you take all of them together and push them together like we are trying to do here, I think we can have a real impact not only on mass incarceration but the racial make-up of people who are ensnared in the criminal justice.

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