Virginia: Tuesday’s elections could overhaul prosecution in Northern Virginia
The nationwide push to overhaul prosecutorial practices has reached Virginia, which hosts three elections for commonwealth’s attorney on Tuesday. These 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, faces Parisa Dehghani-Tafti, a former public defender is now legal director of the mid-Atlantic Innocence Project. Ray Morrogh, the commonwealth’s attorney of Fairfax County and Fairfax City, faces 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 that prosecutors can take on, beyond changing how they assess individual cases.
Dehghani-Tafti told me 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; last year, for instance, VACA opposed a bill to decriminalize marijuana possession. 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. The Appeal reported this week on her office’s history of aggressive charging practices, which have resulted in children being detained over low-level offenses.
A pattern of individual cases can also 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 on concrete issues. The full version of this article contrasts their positions on a range of issues; both challengers have notably said they would not file marijuana charges and would not seek the death penalty.
Prince William County
A commonwealth’s attorney since 1968, Paul Ebert has made Prince William County a national epicenter for the death penalty. The Washington 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 of the Post 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. (The winner faces Mike May, a former county supervisor, who has already secured the GOP nomination.)
In separate interviews, both candidates highlighted changes they’d make to his office, though neither endorsed some of Descano or Dehghani-Tafti’s bolder positions. Both said they wanted to restrict the use of the death penalty, but neither ruled out seeking it.
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” like marijuana possession and driving with a suspended license. Ashworth mentioned the two same examples to explain that “it is not smart to focus on prosecuting victimless crimes,” though she repeatedly specified that she was talking of first-time offenses as to the scope of cases to divert. Also, Ashworth and Lenox both spoke against declination policies, including for marijuana. Ashworth argued that a blanket policy would violate her oath of office; Lenox expressed concern 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 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. She emphasized the value of using them as a constraint in order to be consistent and reduce sentencing disparities.
A full, standalone version of this story is available here.