A candidate for commonwealth’s attorney explains his views on criminal justice reform, from charging practices and drugs to the death penalty
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.