by James C. Sherlock
Deterrence of crime, measured as a combination of fear of getting caught and fear of punishment, has been visibly collapsing in Fairfax County since January 2020.
In that month, Steve Descano took over as Commonwealth’s Attorney and has by policy greatly reduced risk of punishment for crimes in that county.
He is proud of it.
Then, in July of this year, the Chief of the Fairfax County Police Department (FCPD) acknowledged a massive decline in the number of cops by declaring a personnel emergency.
He has neither enough street cops to visibly deter and arrest on scene nor enough detectives to clear cases.
But Mr. Descano has his finger on the pulse — the “needs and values” — of the citizens of Fairfax County, so perhaps it will work out.
Fairfax County. A common description of Fairfax County is as a government employee and government contractor bedroom community. It is one of the richest counties in America. Very recession-resistant. It is all three of those things, but those descriptions miss a lot.
It has elected a Board of Supervisors, School Board and Commonwealth’s Attorney who are proudly progressive.
From the Census Bureau: the White-alone (not Hispanic or Latino) population on July 1, 2021 was 49%, Black 11%, Asian 21%, Hispanic 17%. Foreign-born persons 31%. Language other than English spoken at home as percent of persons 5 years+: 39%.
Median household income: $127,866.
I also suspect that Fairfax County during COVID had one of the most at-home populations in America. Government workers at home. Government contractor workers at home. Teachers at home. Kids at home.
Speaking over 100 languages.
One anecdote. In 2018, federal prosecutors began increasingly treating fentanyl overdose deaths as homicides in an attempt to crack down on the growing crisis by punishing dealers with more severe prison sentences.
In September 2021, a man distributed cocaine laced with fentanyl at a party in Bailey’s Crossroads. Five people were overcome but saved with Narcan. A sixth person died of a fentanyl overdose.
The death was charged in Fairfax County Circuit Court by Mr. Descano as a drug crime, not a homicide.
Fairfax County reported 107 deaths by drug overdose in 2021. Seventy-five percent of them were with drugs which, unknown to the victims, were laced with fentanyl.
But that county reported only 21 homicides.
Deterrence. In the waning days of the second Obama administration, his Department of Justice, pushing Congress for criminal justice reform to lighten sentences, wrote that certainty was the only effective deterrent of crime.
Certainty refers to the likelihood of being caught and punished for the commission of a crime.
Research underscores the more significant role that certainty plays in deterrence than severity — it is the certainty of being caught that deters a person from committing crime, not the fear of being punished or the severity of the punishment.
Effective policing that leads to swift and certain (but not necessarily severe) sanctions is a better deterrent than the threat of incarceration.
I am not a criminologist, so I will accept that.
So we will look at deterrence in that context — the arc of the likelihood of being caught and punished in Fairfax County.
Getting caught. The emergency declaration by Chief of the FCPD on cop shortages signals less likelihood for a criminal to get caught.
In Fairfax County, the likelihood of being arrested on scene is reduced because of the paucity of street cops. The likelihood of the crime being cleared by investigation is reduced because of the shortage of detectives.
Charging and punishment. We must acknowledge those things of which Commonwealth’s Attorney Steve Descano, elected in the fall of 2019, is most proud.
The primary way the Commonwealth’s Attorney ensures that the community’s values are guiding the criminal justice system is by creating policies and procedures for the office’s prosecutors to follow that are consistent with those values.
The Commonwealth’s Attorney has a great amount of discretion—referred to as “prosecutorial discretion”—when it comes to creating the policies and procedures dictating how the office’s prosecutors will address every important issue, including:
• Whether to accept or reject a case;
• The charges to bring in a case the office has accepted;
• Whether to prosecute or seek alternatives to prosecution;
• Bail policies;
• Plea offers; and
• The types of sentences to seek.
Descano has directed his prosecutors to reduce charges of many crimes from felonies to misdemeanors and then to seek alternatives to incarceration for those misdemeanors.
Plea Bargaining, Charging Decisions and Sentencing. Descano made so many changes to plea bargaining, charging decisions and sentencing that it is hard to do them justice in summation.
He claims to be in close touch with the “community’s needs and values” and wants outcomes that “accord” with them. Regardless of state laws.
Some quotes:
A properly functioning criminal justice system allows actors to fashion appropriate outcomes in each case based on the specific facts and circumstances of the individual case. Legislatively mandated minimum jail sentences interfere with this process.
With respect to all Floor Adjustment Mandatory Minimums, ACAs must make plea offers that avoid the legislatively mandated minimum jail sentence.
Given that Mandatory Minimum Principal Offenses contain a minimum floor of punishment that is encompassed within the principal offense, rather than as an enhancement, avoiding the imposition of the mandatory minimum requires the charging of an entirely different offense. In such situations, ACAs are strongly encouraged, but not required in every instance, to offer a plea to an alternative, non-mandatory minimum offense or, where multiple charges exist or can be charged, the ACA should consider offering a plea to the charge or charges that do not carry a mandatory minimum sentence.
When the Commonwealth’s Attorney and defendant concur, a trial court has the inherent authority to defer disposition in a criminal case and consider dismissal when the defendant has complied with the established conditions.
ACAs shall consider deferred dispositions in any appropriate case, including felony cases in circuit court, where the goals of justice and rehabilitation can be accomplished, and the values and needs of the community can be served, without imposing the life-long consequences of a misdemeanor or felony conviction.
ACAs shall dispose of felony charges as misdemeanors where appropriate.
No reflexive reliance on the Virginia sentencing Guidelines. In general, ACAs should not reflexively assume the Guidelines recommended sentence is appropriate.
Death penalty is prohibited.
Although not outcome determinative, prosecutors shall consider: (i) the collateral immigration consequences of the specific crime(s) the defendant is charged with, and (ii) the detrimental impact that deportation/removal has on the families and communities those removed or deported leave behind.
Upon assuming office in January of 2020, Descano changed CA office policy on bond for accused.
His new bond policies started with no cash bail.
For crimes involving violence or the potential for violence, sexual assault and child victims, the ACA “shall review all the evidence and make an independent determination of dangerousness.”
In danger to the community determination the ACA “shall begin the analysis applying a strong presumption in favor of finding that the person is not a danger to the community.” The presumption can be rebutted by available evidence (editor’s note: unless under the police staffing emergency such evidence has not been produced.)
In the flight-risk determination, even if a defendant is deemed a risk without conditions, ACAs “should look for the least restrictive conditions” that will allay the risk of flight.
Grand Larceny. Descano implemented two major changes in the policy for charging grand larceny.
- Virginia law sets the felony threshold for larceny at $1000. Descano’s policy in Fairfax County sets that threshold at $1,500, and then only sometimes.
- The Code of Virginia transforms a misdemeanor larceny offense into a felony offense when a person is convicted of two or more misdemeanor larceny offenses. Descano’s policy: ignore the law and proceed with another misdemeanor offense.
Bottom line.
The new Descano policies were implemented at the onset of COVID, which distorted crime statistics. Public release of crime statistics for 2022 is about a year away.
So it will be that long before we can have apples-to-apples comparisons between 2019, the last year of sufficient cops and bad old prosecutors in Fairfax County and the brave new world of Descano and a cop personnel shortage in 2022.
If the Obama Justice Department definition of deterrence is correct, it won’t be pretty.
But Steve’s got the “needs and values” franchise, so maybe all will be OK.
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