In the June 11 primary, Fairfax County and the City of Fairfax will be voting on a new Commonwealth’s attorney (CA). Given the immense power CAs hold, you have the opportunity to greatly impact your community. The candidates – Ray Morrogh (incumbent) and Steve Descano (challenger) – have expressed differing views on what they believe a CA’s role should be in the community.
Do you know where they stand on important issues for Fairfax County and the City of Fairfax, like cash bail, alternative programs for low-level drug offenses, voting rights and racial disparities in the criminal justice system? We’ve created a Voter Guide to help you decide which candidate deserves your vote.
Specific commitment to decarceration
Recently John Creuzot of Texas set a goal of de-carcerating Dallas County by 15 to 20% in his first term. His plan to do that includes changing pre-trial detention policies to err on release, and instructing his prosecutors to not pursue theft charges of necessary items valued under $750. These are practical changes all within the Commonwealth Attorney's discretion. Will you commit to a specific percent reduction in the incarcerated population of Fairfax County? If so, what percent, and what are some of the ways that you will accomplish this reduction?
Ray Morrogh:
I'll tell you right up front. I can't commit to a percent that I would reduce the jail population by. What I can tell you is I'm working now to reduce it, and it has been reduced to record low levels. The way to do that is the way we're doing it. We have a very robust supervised release program in our jail. We don't ask for cash bail. We have a supervised release program where we do drug testing, we work with people, we allow them to call in, so they don't lose their jobs.
Steve Descano:
Mass incarceration is a serious problem here in Fairfax County — I intend to do something about it. There are a number of ways that we can reduce our incarceration population. The first one is, stop asking for cash bail. 45.9% of the people who are eligible for pre-trial release in Fairfax County have to pay cash bail before they're released. The other thing I'm going to do — I’m not going to charge felony larceny under $1500. I'm also not going to prosecute simple possession of marijuana cases. Now as far as a simple percentage goes, I don't know exactly what it's going to be because we need to get more data, but based on my estimates the cash bail issue alone is probably going to get us at 5%.
Alternatives to Incarceration
Misdemeanor charges make up approximately 80% of state and local dockets nationwide. The majority are for minor offenses like trespassing, loitering, and drug possession. These arrests and convictions can significantly affect people's lives, even when they result in short sentences or probation, costing people their jobs, housing, student loans, immigration status, and even their children, and contributing to a cycle of incarceration and poverty that is hard to break. Are you willing to not charge misdemeanors such as trespassing or loitering, which are associated with poverty, mental illness, and homelessness? What charges, if any would you commit to not prosecuting because of their disproportionate impact?
Morrogh:
We are a nation of laws, not men. I'm not a super legislature. I can't decide, and should not decide what laws to prosecute and what not to prosecute, nor should Steve. It's fine with me if they decriminalize marijuana. It'd be a good thing in my view, but we have diversion programs for marijuana, for theft, for trespassing, all of these crimes. But some of the misdemeanors are peeping Toms, domestic violence. Believe it or not, if there's not a serious injury to the woman, it's a misdemeanor. These are serious cases. A lot of the misdemeanors are serious, serious cases.
Descano:
I'm going to ask to get all charges dismissed when they're related to people possessing marijuana. Because even if you go through a diversion program, and you succeed with the diversion program, that's something that's going to follow that person for the rest of their life because it can never be expungeable. When it relates to other drug crimes, I don't want to charge those either. What I want to do is I want to put in place systems that actually help people. Not drug courts by names only that don't take into account the secondary consequences for the rest of people's lives.
Transparency and Accountability
Data collected from the Vera Institute, an independent national nonprofit, on the population of Fairfax County's local jail reveals that black people are incarcerated at nearly four times the rate of white people. If elected, how will you address these racial disparities in Fairfax County? Are racial disparities currently tracked and analyzed, and if so, what is the plan for releasing that information to the public?
Morrogh:
I will tell you that this is a problem not only in Fairfax County, but across the nation. I think it has a lot of roots in our history. Also in the implicit bias, which a lot of people may not think about, but it's a real, real problem. We train on it, that's one thing we do — I would, for one, be willing to share every bit of data I have — I'm willing to do it. I will tell you, I have 34 lawyers in a jurisdiction of 1.2 million, so I don't have the technology person, but I'm going to try to get one so we can look at this. If you go to a historically black church, or you talk to black folks generally, every one of them has a story. They were pulled over when they were just driving to church, or they were taking their kids for ice cream. We've got to do something about it, and I'll do something about it.
Descano:
We do need to get the data because what we understand is that discrimination in our system mostly is systemic, which means its hidden. Which means we need to find the data, so that we can pull it out and extrapolate where the issue is so that we can change. I'm not even in office yet and I've already talked to multiple organizations that will come in, for free, and go through the data that we have collected. Audit it, break it down by demographics so that we can figure out exactly what's going on. I'm committed to doing that. Not only that, I'm committing to putting that data out, not just for me, but for you guys. Because the way we're going to get this solved is to have someone in this position who is actually going to be accountable for solving this problem. Not only am I going to put the data out there, but I'm going to put my solutions out there. Then I'm going to go all around the county and what I'm going to talk about is how well we're doing with implementing those solutions.
Will you commit to establishing a system for collecting and reporting data in your office that captures information on demographics, charging and bail recommendations, diversion, case processing, plea negotiations and sentencing recommendations?
Morrogh:
Yes, but funded.
Descano:
Yes.
Would you maintain detailed statistics and would show the rates of the tensions and arrests based on race and socioeconomic status and would you make these stats public?
Morrogh:
Yes, if it’s funded.
Descano:
Yes.
Decriminalizing Marijuana
Will you commit to stop criminally prosecuting simple marijuana possession instances and instead dismiss, divert or treat those cases as civil infractions?
Morrogh:
Yes, divert.
Descano:
Yes, not prosecute.
Juvenile Justice
Will you create and/or release a policy that directs your prosecutors not to charge juveniles as adults?
Morrogh:
No, I will tell you that certification for juveniles is extremely rare and it is for common sense reasons. Sometimes I have to do that. It is not fun. I do not like to do it. I try to do it as rarely as possible but sometimes it is necessary. But, I would say the vast majority of cases, you can save them and we should. And there ought to be a way at the end of any sentence, for any juvenile, to get out of prison some day, if he or she has reformed, no matter what the sentence is.
Descano:
No, I am in favor of things like Elizabeth Guzman's — Delegate Guzman's — bill to not be able to certify kids under the age of sixteen. And I will do everything in my power, in every case possible to not certify these kids. I think it is a very, very infinitesimal chance that we get some kid who so horrible that we need to certify him, but I am trying to be honest, and I want to be accountable to all of you. That is why I think the answer that I gave, is what I gave you, because I never know what is going to walk in through that front door.
Solitary Confinement
What is each candidate's view on solitary confinement?
Morrogh:
It might be necessary, at some time, to isolate someone for a discreet period of time, who may be out of control or something. I think we should treat our criminals like we treat everybody, with dignity. The penalty might be incarceration, they might have done something really bad, but they should not be tortured, psychologically or physically. They should be treated with respect and dignity on all points in the system, and I have always believed in that.
Descano:
I am against solitary confinement. I think it is a must for us to look at it and see that it is inhumane and serves no purpose. All it does is add to more psychological trauma to someone who is likely already conflicted with some psychological trauma. And as your Commonwealth's attorney, I will go down, and I will work with the legislators and I will be a voice and advocate for you, and try to end that practice in Virginia.
Death Penalty
Countless studies have shown that the death penalty is fraught with error, provides no public safety benefit than other services and has routinely imposed on people with diminished culpability. Studies also show that the death penalty is applied in a racially discriminatory manner. Would you commit to never seeking the death penalty?
Morrogh:
No, I could not do that. Again, it is a law. There is a law and I have to give the death penalty mature consideration. I do not like it but I will enforce it. The death penalties I have sought have been the most horrific cases.
Descano:
I will never ask for the death penalty, that is period, full stop. It is barbaric, it has a racist implementation and it costs so much money to try and continue with the appeals of those cases. The death penalty is something we should not have in Fairfax County and I am committed to stopping it in Fairfax County.
Community Oversight
Will you commit to form a community advisory board, that includes members who have been directly impacted by the criminal justice system, that will meet monthly to discuss the community's priorities and how the Fairfax County Commonwealth attorney's office will respond to those issues?
Morrogh:
Yes.
Descano:
Yes.
Pretrial Reform
Nearly half of the people in Virginia's jail are awaiting trial and have not yet been convicted of a crime. The Virginia Department of Criminal Justice Services is currently conducting a snapshot analysis of Virginia's pre-trial system and initial results are shocking. Nearly 44% of those held are African American, despite only making up 20% of the population. 60% are being held on misdemeanor charges only, and another 15% are just probation violations. In addition, nearly half of Fairfax County pre-trial population has a cash bail hanging over their head. How do you plan on restoring the presumption of innocence in Fairfax County, and increasing the percentage of those released on their own recognizance? Without conditions?
Morrogh:
I've told my assistants, don't ask for cash bail. The statutes of Virginia call on the magistrate to send cash bail. There's no prosecutor there for that. Then the next morning the judge reviews it. He can raise it, he can lower it, we can't. All we can do is ask a judge in an appropriate circumstance, and we often do. To say that you'll never ask for conditions, violent people in jail are not in there for biting their nails, even on misdemeanors. Our supervised-release people meet with the defendants upon intake by the next morning, and then if they're not out in two days they meet with them again. If they're not out with that time we hear about it, and we work with them independently, the attorneys, to get folks out of jail who are not a danger.
Descano:
What you do is what I plan to do, which is I'm going to tell my prosecutors that once someone is determined independently by a judge to not be a danger to the community, to not ask for cash bail. The fact of the matter is, when you go to the bail hearing, the judge gets the final decision, but 99.99% of the time they go with what the prosecutor recommends. I'm committed to ending cash bail. The other thing is, we want people at home, living in their houses, working their jobs, raising their family, because otherwise when people are held because they can't afford bail, that creates recidivism even years down the line. Cash bail creates a two-tiered system of justice, penalizing poor people for being poor. That's not our values. I'll fight tooth and nail to end it. I'm not going to hide behind anything else, or say it's somebody else's responsibility. It's our responsibility.
While incarcerated in Fairfax County, awaiting trial, people are charged a fee for their stay. What will you do about that?
Morrogh:
[Fees are] built into our system. The fee for the jail that's a new one on me, I didn't realize that. I would wave that fee and asked to be released if it was me, but I do think that there's a sentiment out there, at least in a general assembly, has been that the consumers of the system should pay for it, to a certain extent. Those who are using the services of the court, whether it's drunk driving, or reckless driving, should pay for it if they're convicted. I'm not sure that's wrong, but nobody should go to jail if they can't pay it.
Descano:
I think those types of fees, the fees that you mentioned, really have the potential to hurt our individuals, our community members and really take our system of justice and turn it into a two-tiered system, where we penalize people simply for being poor. I would be committed to working with every stakeholder at the local, at the state level, at the courthouse, and in jail. I'm trying to figure out what is the purpose of these, are they discriminatory, how can we get rid of them.
Police Accountability
Most fatalities involving law enforcement do not go to trial. If elected, how do you propose to balance your duties, to hold law enforcement accountable, to the people with your reliance from them to try a case?
Morrogh:
It is vital to our system of justice that the police are held accountable, and the prosecutors are held accountable, and the judges are held accountable. We do that. We have a policy in my office, it's called a Brady List. If an officer tells a lie about a case or about something that's duty related, we keep a list and we let every defense attorney, and every defendant know who that officer is. I have prosecuted police officers for various crimes, and a few years ago, everybody knows I prosecuted one for killing somebody. I'm proud I did it because it was the right thing to do.
Descano:
I think the biggest thing that we realize is that right now there is not a lot of trust between our community and the criminal justice system, and that's number one when it comes to being the Commonwealth's attorney — rebuilding that trust. I think it is incredibly important that somewhere along the line, someone has to say, in these cases, the blood stops here. As a matter of fact that's the reason why I would want to keep the cases of police shootings in Fairfax County in the Fairfax County Commonwealth Attorney Office. The community deserves someone that is accountable directly to them, to be the one to make that decision, because if that decision is made poorly or is made not thoroughly or is done the wrong way, you the voters, need to be able to hold us accountable
Would you commit to have another prosecutor, who has no relationship with local law enforcement, investigate any fatal shooting of someone by police in your locality?
Morrogh:
No.
Descano:
No.
Conviction Integrity Units
Conviction review units, also known as conviction integrity units, are being created in prosecutors' offices all over the country as a means of increasing accountability and insuring that justice is consistently served. These units scrutinize old cases to determine whether the outcomes were tainted by unjust practices, faulty evidence, or bias. Will you commit to creating a conviction integrity unit in Fairfax County?
Morrogh:
Yes, I have it, and guess who the chief officer of the conviction review unit is? Me, because I've tried the most murders of anyone probably in the state and rapes, and other assorted crimes. Myself, my chief deputy and one of my other deputies, review those cases. We get requests on attorneys, we've worked with Mid-Atlantic Innocence Project, which is a great group of people who scrutinize cases. Mistakes can be made, it's a human system.
Descano:
Yes, I would commit to creating a conviction integrity unit, because I think what we all need to realize and I think what most of us realize is that, the job of the prosecutor is not to simply win cases. The job of the prosecutor is to do justice and sometimes that means going back and looking at old cases, and if someone is innocent or there has been a problem, realizing that we made a mistake, not covering it up, and actually doing the right thing. Of course, I would be committed to creating a conviction integrity unit.
Diversion Programs
Well-designed diversion programs and specialty dockets can be a way to help ensure people suffering with addiction and mental health issues get the treatment they need without having to suffer the serious collateral consequences of a conviction. These programs keep people in the community instead of behind bars. What are the current programs that exist in Fairfax County? How many people are currently participating in them?
Morrogh:
[These are] excellent programs, we sent our assistants out for a year to train on this around the country. Our program has gotten imprimatur of our Supreme Court. They worked very hard to get one that works and that is the motto we are using and it is a national motto. The thing is, it is intense. People with drug addictions, they are very sick and it is very hard to get them off the drugs. I want to be clear that the drug court that we have is for people in big trouble with drugs. They are doing other crimes. They are stealing, other things. They have got a real bad problem. Most of the people who are involved with the drug situation, we divert them, to begin with. They do not have to be convicted. They are diverted and they work with probation officers and there is a number of programs around Fairfax County and Loudon depending on what beds are available. We need to put some money into these things because our community is sick with this opioid abuse and we have to solve it.
Descano:
I think one of the keywords, in your question, was the word of incentivized, right? People may not want to go into them if they are not properly incentivized. We have actually seen that problem with our veterans' work. There are probably some people in here who are veterans or there are veterans in the family and then there are 72,000 veterans in Fairfax County and Fairfax City — people who we could be helping with the veterans' court docket. Unfortunately, our Commonwealth attorney's office acts as the gatekeeper for that program. We have this capacity to really help people, but we have less than 12 people in that program right now. The reason is because they are not properly incentivized. They are not given a reason to come into this intensive program because they are not offered the opportunity to get a reduced charge or get their charge dropped, if they were able to make it through the program. We want to get people help but at the same time we want to create a system, where they can come out on the other side, without a criminal record, that is going to ruin them for the rest of their life and our drug court is failing to do that.
Do you support detox programs in lieu of jail for drunk in public or non felony DUIs? Yes or no.
Morrogh:
Yes.
Descano:
Yes.
Immigration Consequences
Right now there are 12,000 Fairfax resident immigrants in deportation proceedings. Immigrants charged with local crimes are frequently detained by ICE before their local charges are resolved in Fairfax. Then the immigration court uses these unresolved allegations as a factor to favor their deportation. The Commonwealth's attorney has the authority to ask the immigration court, to transfer the individual back to Fairfax to resolve these outstanding local issues, before the deportation case proceeds. This helps the immigrant and also the Commonwealth, which is able to obtain resolution of its charges. Are you willing to adopt a policy agreeing to file these transfer requests writs? And additionally, what specific actions have you taken or will you take to increase an immigrant's chances of avoiding deportation?
Morrogh:
The only time I worked with ICE is to try to get U visas and UV visas for witnesses and victims of domestic crime. We try to help those people stay here and become citizens. I believe in a path of citizenship for every human being in this county. And I believe that every human being, in this county, contributes to make this county a great county to live in. I do not work with ICE to deport people and I never will.
Descano:
Our diversity in Fairfax county is our strength. Regardless of someone's immigration status, they are our neighbors and they deserve to be treated as our neighbors and get equal protection of the law. So to your first question, yes, that is a very simple. I will create a policy to ask for those writs.
Rights for All
Why do you, or why do you not support restoring the right to vote to individuals who have completed their sentences and parole?
Morrogh:
I have always supported restoration of voting rights. I don't think anybody should ever lose their voting rights, unless they're convicted of treason or of terrorism. What I was against, and I didn't join the Republicans, I joined a bi-partisan group of black, white, brown prosecutors — Democrats, Republicans, and independents — 53 courageous people who stood up to Terry McAuliffe and said, wait a second, why are you linking the right to petition for a firearm on to this? There are too many handguns out there, just give the voting rights back, don't link it to firearms.
Descano:
I one hundred percent support that, I've supported Gov. McAuliffe's move to do that. We need reform, we need somebody who can get away from the same old, same old, because that's the way its always been because we know that in our criminal justice system, our racism in systemic, it rarely comes up and punches you in the face like it did in that case.
