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Opinion The Fairfax prosecutor’s decision to sit out many misdemeanor cases is a mistake

Fairfax County Commonwealth’s Attorney Steve T. Descano is shown on Oct. 15, 2020.
Fairfax County Commonwealth’s Attorney Steve T. Descano is shown on Oct. 15, 2020. (Tom Jackman/The Washington Post)
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POLICE, DEFENSE attorneys, judges and victim advocates have vastly different perspectives and are often known to disagree. So it is striking that in Fairfax County, these stakeholders in the criminal justice system seem to be in complete agreement that the decision by Commonwealth’s Attorney Steve T. Descano not to prosecute many misdemeanors is a terrible mistake. They see adverse consequences for both victims and defendants, and they fear public safety could be undermined.

Mr. Descano, The Post’s Justin Jouvenal reported, announced last year that his office would no longer participate in many misdemeanor cases because of a lack of staffing and the need to focus resources on more serious crimes. He noted that Virginia law only requires prosecutors to handle felonies and some appeals, not misdemeanors, and that many other commonwealth attorneys in the state adhere to the practice of letting judges and police officers try a case.

That, though, has not been the policy in Northern Virginia, and the break with tradition in Fairfax has created an uproar. Police don’t see it as their job — or think they have the skills — to try cases. Judges who are supposed to be neutral chafe at having to elicit testimony. Victims go unrepresented and feel abandoned. Defense attorneys say the absence of an attorney, which sometimes might benefit their clients, also means there is no one with whom to reach a plea agreement or to provide exculpatory information or discuss the possibility of diversion. “When you don’t have attorneys on both sides,” one defense attorney told us, “there are unjust results.”

Mr. Descano said the office is still handling weightier misdemeanors such as serious domestic violence cases, but victim advocates say potentially dangerous cases are falling by the wayside. A recent ruling by one circuit court judge in Fairfax tossed out the case of a man charged with driving without an ignition interlock system after his previous drunken driving conviction — not on its merits or because it wasn’t a legitimate complaint — but because of the failure of the prosecutor’s office to do its job.

Mr. Descano has acknowledged the problems with these de facto prosecutions and said he plans to return to staffing misdemeanor cases once he gets additional resources, expected when the Fairfax County Board of Supervisors approves next year’s county budget that would include 15 new positions. Good to hear, but we have to wonder about the necessity — and wisdom — of Mr. Descano’s action. His predecessor managed to handle these cases, and the board last year gave his office a significant budget increase, adding 24 positions. Critics question how his addition of high-salaried administrative positions squares with his push for more prosecutors in the courtroom.

Mr. Descano was among a wave of reform-minded prosecutors elected to office in Northern Virginia in 2019. No doubt some of the pushback he is getting — a conservative group is trying to mount a recall — is from opponents of needed change to a system that too long relied on a tough-on-crime approach that failed to address the root causes of crime and discriminated against minorities. For the sake of that right-minded agenda, we hope Mr. Descano recognizes the mistake he made in this unilateral decision and acts promptly to correct it.

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