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Criminal justice changes in Virginia prompt debate over how prosecutors are funded by the state

Steve T. Descano, Fairfax County’s commonwealth’s attorney, in 2019 before he took office. Descano has faced tense relations with county police after a decision to stop prosecuting misdemeanors, a move he blamed on a staffing shortage made worse by how the state funds prosecutors. (Sarah L. Voisin/The Washington Post)

An earlier version of this article incorrectly stated that a Fairfax County judge dismissed 400 convictions related to an ex-police officer’s allegedly improper stops. The judge vacated one of those convictions, but there has been no decision yet on the other cases. The article has been corrected.

Since 2016, Fairfax County has run Virginia’s most ambitious criminal justice diversion program, steering low-level offenders with chronic problems away from jail — an effort that has been a blueprint for similar initiatives now sweeping through the state.

But after spending $12 million on the Diversion First program, which includes a drug court, a veterans court and other specialty dockets, Virginia’s most populous county says it is being punished for the effort by a state funding formula that has been geared toward rewarding local prosecutors for seeking harsher felony sentences instead of leniency.

“It’s maddening, and it’s frustrating,” said Jeff C. McKay (D-At Large), chairman of the Fairfax County Board of Supervisors. “We literally are getting penalized for keeping people out of incarceration and treating them.”

The county’s frustrations are driving an attempt to change the state formula, with a 15-month state-commissioned study on the issue set to launch this month.

For decades, the state Compensation Board — which allocates funds to commonwealth’s attorneys — has based its decisions on the number of “sentencing events” an office has per year. The more offenders convicted in circuit court, the more money awarded.

But what isn’t rewarded are the hours of work that prosecutors put in every week for diversion efforts, say advocates for criminal justice reform. The thousands of misdemeanor cases that some local prosecutors also handle every year — something they are not required by the state to do — are also not calculated into the state formula.

Advocacy groups say the system effectively rewards a tough-on-crime approach that is out of step with the wave of criminal justice overhauls that have emerged across the country following high-profile police abuse cases against people with mental health issues and other treatable problems.

The Compensation Board recently massaged the formula to include the number of annual arrests as a factor in what local prosecutors get.

But officials in Fairfax and other localities with diversion programs say the approach to providing resources to local prosecutors is still in dire need of reform.

“The current formula is a joke,” said state Sen. Scott A. Surovell (D-Fairfax), who this year persuaded the General Assembly to approve the state study. “It incentivizes all the worst policies of the last 30 years.”

Fairfax officials say the disconnect in funding has fueled problems inside the office of county Commonwealth’s Attorney Steve T. Descano (D) during the past year.

Descano’s office, which prosecutes an average of 2,600 felony cases per year, received about $1.8 million in state funds last year. By comparison, the city of Chesapeake — which has less than a quarter of Fairfax’s 1.1 million residents — got about the same amount because it had nearly as many felony convictions, state records show.

Saying he didn’t have enough money to hire attorneys to properly handle all of his office’s cases, Descano stopped prosecuting cases involving allegations of non-felony assault, larceny and other low-level crimes — a move that angered county police and victims’ advocacy groups.

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“You see defendants skipping out of court, hollering about how they beat us, and then we see them again in a week or two,” one unidentified police officer told Descano in a recording of a tense meeting last fall that was shared with Bolster the Blue, a group in Fairfax that has been involved in a recall campaign against the Fairfax prosecutor.

Among other things, that group has criticized Descano for reallocating resources away from prosecuting cases — including hiring a chief of staff and a communications director instead of more attorneys able to appear in court.

But Descano said the move to stop prosecuting smaller cases stemmed from mistakes in some cases that his staff detected after he took office last year — mistakes he said occurred because attorneys working multiple cases at a time were stretched thin.

In one case last year, a Fairfax judge vacated a 2015 felony armed robbery conviction after it became clear that the assistant county prosecutor in that case ignored DNA evidence that put the defendant’s guilt into question and failed to inform the defense attorney that the evidence existed.

In another, more widely publicized case in April, Descano’s office asked a county judge to dismiss 400 convictions related to a former Fairfax police officer who has been accused of stealing drugs from the police property room, planting drugs on innocent people and stopping motorists without a legal basis. The judge dismissed one of those cases. Descano said the questionable nature of those stops would have been detected earlier if prosecutors had more time to review the cases.

“We’ve had cases that went through where innocent people went to jail,” Descano said. “We’ve had cases that had gone through where individuals who were accused of very serious crimes, their trials fell apart because of understaffing.”

State-funded law enforcement offices in Virginia — including sheriff’s departments, public defenders and local courts — have long struggled with a lack of resources, officials say.

The growing popularity of drug courts, veterans courts and other programs geared toward steering offenders with chronic problems away from jail has added to the workload.

This year, the Democratic-
controlled General Assembly moved to lighten that burden by passing a law aimed at the extra workload posed by increased use of police body cameras for commonwealth’s attorneys’ ­offices.

Typically, multiple officers respond to a crime scene with body cameras rolling, leaving it to the prosecutor to sift through what can be several hours of footage when criminal charges are filed, officials say.

The state now requires local governments that have adopted body-camera programs to provide their commonwealth’s attorneys with enough funding to hire one additional assistant prosecutor per every 75 cameras in use.

Local prosecutors said that ratio still doesn’t cover the amount of extra work that local prosecutors have taken on in recent years.

“It’s a crushing, crushing burden,” said Parisa Dehghani-Tafti (D), the commonwealth’s attorney for Arlington County and the city of Falls Church. “You’d think that a 30-minute stop for a DUI would be 30 minutes of in-car camera video, but it’s not.”

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In Fairfax, which already funds most of Descano’s budget, the county has taken steps to help beef up his staff, enabling him to again start prosecuting misdemeanor cases.

The county recently approved an additional $3.7 million, enough for Descano to nearly double his staff to 82 attorneys and support personnel.

The county board is also weighing another allocation of funds next year to help meet what is expected to be an even larger workload after Fairfax’s courts, which have been stunted by restrictions related to the pandemic, resume normal operations.

But McKay said that amount isn’t likely to be enough to fund the 98 additional positions Descano says he needs, and argued that the state should be doing more to shoulder the burden.

“If we are actually truthful about wanting to support criminal justice reforms, our budgets have to reflect that, too,” he said. “I can’t be getting hit on both ends.”

The 15-month study, to be conducted by the National Center for State Courts, will become the foundation for any changes made to the funding formula — either by the state Compensation Board or the General Assembly, in the form of new legislation.

The Virginia Association of Commonwealth’s Attorneys said it wants to avoid a change to state funding that would harm local prosecutors whose jurisdictions don’t have the resources to participate in diversion programs.

Among other things, the study will account for the differences in how Virginia’s 120 offices of commonwealth’s attorneys operate, said Colin Stolle, the umbrella group’s president.

“The hard part with determining how to fund these offices is you’ve got to make sure you’re comparing apples to apples,” said Stolle (R), who is also the commonwealth’s attorney in Virginia Beach.

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As a short-term solution this spring, the Compensation Board began to include arrest data for the 2022 budget year. That means funding is not entirely tied to local prosecutors’ decisions to seek felony charges, but it still ignores the extra work that comes with diversion programs, criminal justice reform groups say.

Some of those advocates aren’t optimistic that the study will lead to meaningful changes.

“Usually in Virginia when they are studying things, it just means it’s just something that they don’t want to deal with, and they just want to kick the can down the road,” said Bradley R. Haywood, executive director of Justice Forward Virginia, which has pushed for changes to the funding formula for several years.

Any longer-term change is likely to lead to some kind of political backlash, particularly from jurisdictions that are happy with the current system and not interested in diversion, said Surovell, the state senator.

But, he said, the central goal should be to help prosecutors serve their communities in the best way possible.

“They’re not supposed to just prosecute,” Surovell said. “Doing justice is much bigger than just running around to get as many convictions as you can because the police happen to bring someone to you.”

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