In Virginia, Money—Not Justice—Drives Prosecution

Sam McCann Senior Writer
Jun 14, 2022

If a budget is an expression of values, then Virginia sends a clear message about what its criminal legal system prioritizes. The commonwealth doesn’t reward due process, justice, or public safety. Instead, it incentivizes convictions. Lots of them.

Virginia funds its prosecutors, called commonwealth’s attorneys and often known as district attorneys in other states, based on the number of convictions they secure in a year. The more people a prosecutor charges with a felony and the more sentences they secure, the more state money their office receives. The funding formula itself is developed from recommendations provided by the Virginia Association of Commonwealth’s Attorneys (VACA), a prosecutorial interest group, before being approved by the Compensation Board.

The formula creates a perverse set of incentives. Focusing solely on convicting someone of a felony—and ignoring whether the allegation is true, whether that conviction will build public safety, or whether the action is fair and just—brings more state money into a prosecutor’s office. On the other hand, if a prosecutor exercises discretion in how they charge cases and builds programs that offer public safety solutions beyond prosecution and jail, they lose out on millions of dollars in state funding.

“For communities that want to help our neighbors and that really see the long-term vision of how the justice system is intertwined with our community's health, it really makes it difficult for those communities to live their values,” said Steve Descano, commonwealth’s attorney in Fairfax County, a suburb of Washington, DC and Virginia’s largest jurisdiction. Descano, a partner of Vera’s Motion for Justice program, says that the current system creates a dynamic in which “every problem is a nail, and [prosecutors] are the hammer—the only solution.”

“The worst policies of the last 30 years”

Descano was elected in 2019 as a reformer. He pledged to end money bail, drop cannabis prosecutions, and implement diversion programs that offer alternatives to arrest, prosecution, and incarceration. Data shows that these reforms can reduce the harm caused by the legal system and build public safety. Diversion programs do so by addressing the root problems that lead to criminalized behavior, like food and housing insecurity, joblessness, lack of educational resources, and unmet mental health needs.

Yet Virginia’s Compensation Board penalizes prosecutors who pursue those policies. In 2020, Descano’s office received $1.8 million in state funds, or about the same amount that the state provided Chesapeake, a city with less than one quarter of Fairfax’s residents. That's because the funding formula is skewed towards smaller jurisdictions, and against those like Fairfax that pursue more progressive policies.

Local jurisdictions can supplement the money the state allocates for commonwealth’s attorneys. Fairfax County’s Board of Supervisors provides $6.7 million in additional funding to Descano’s office. But that money comes from local coffers, and state funds provide a significant incentive.

“If felony convictions are how you bean count, then that's the thing that people are going to keep measuring,” said Parisa Dehghani-Tafti, a Motion for Justice partner and the commonwealth’s attorney in Arlington County, a large suburban county neighboring Fairfax County. “They're not going to measure racial disparities; they're not going to measure ‘what are the things that keeps communities safe?’”

“It incentivizes all the worst policies of the last 30 years,” State Senator Scott Surovell told the Washington Post. Those practices include:

  • Overcharging. Because prosecutors only get state funds for prosecuting felonies—and not misdemeanors—they are encouraged to elevate misdemeanor allegations to felonies before eventually pleading them down. “Let’s say somebody comes in and makes an arrest, and I'm looking at it. I'm like, 'this is a misdemeanor all day. . . .' I don't get anything for that [from the Compensation Board],” Descano explained. “But there are some jurisdictions that go, ‘You know, you’re going to get your misdemeanor, but I’m going to indict it as a felony, so it goes up to circuit court and at least I get credit for having a felony defendant.’”
  • Coercive pleas. Because funding is determined by the quantity of convictions, not the quality of the cases prosecutors assemble, the Compensation Board incentivizes commonwealth’s attorneys to pressure people accused of crimes into pleading guilty, rather than allowing them to exercise their constitutional right to a trial. There are several factors working in their favor to encourage those pleas. First, money bail means that people experiencing poverty are often held in jail while awaiting their trials because they can’t afford to buy their freedom—increasing prosecutors’ leverage in plea negotiations. Second, mandatory minimum sentences further imbalance negotiations, allowing commonwealth’s attorneys to hold high potential prison sentences over people’s heads to expedite a plea. And third, people who insist on their constitutional right to trial face the “trial penalty,” enduring stiffer sentences for the same charge compared to those who pleaded guilty. Taken together, these factors allow prosecutors hoping to pad their budgets to ignore questions of justice or long-term harm and instead focus on short-term volume.
  • Diversion disincentivized. “The problem with diversion programs is that they're hard, they take time,” Descano said. “I can use mandatory minimums, I can jam someone up, I can get a sentence, I can do that in an afternoon. And I get paid for that.” But a diversion program does not result in a conviction—or necessarily even a charge. In Virginia, that means a prosecutor might risk their funding, even though diversion programs are a smarter investment in public safety than prosecution and incarceration.

These problems are compounded by the state’s unequal funding of public defenders and prosecutors. Public defenders are paid less than commonwealth’s attorneys in Virginia, putting defense and prosecution on unequal footing.

VACA’s “fiefdoms”

These powerful funding incentives are enshrined by VACA, an association of prosecutors that establishes recommendations for the funding formula set by the Virginia Compensation Board. Effectively, the prosecutors as a group are allowed to shape how to divide up the state money for their offices among themselves, with ultimate approval held by the Compensation Board. Ten of the 120 members of VACA are, like Descano and Dehghani-Tafti, part of the Virginia Progressive Prosecutors for Justice. They generally come from larger, more liberal jurisdictions and take a reform-minded approach. But most VACA members do not share their views.

Because every member of VACA receives the same single vote regardless of how much of the state they represent, VACA’s makeup poses a problem for anyone who wants to change the funding formula. Brad Haywood is the chief public defender for Arlington County and the City of Falls Church—just outside of DC—and the executive director of Justice Forward Virginia. His organization has lobbied the General Assembly to amend the funding formula and, in doing so, ran into VACA’s powerful intransigence.

“What you end up having is VACA, which has an immense amount of lobbying power, and probably 15 of the commonwealth’s attorneys who represent easily more than 60 percent of the state. But then you've got 100 others with their tiny little fiefdoms who have the same voting power,” Haywood said. That means VACA opposes efforts to tie funding to a neutral metric because it would benefit larger jurisdictions.

This question of funding came to a head over the last two and half years, as advocates pushed the legislature to introduce bills changing the funding process, including prohibiting the consideration of convictions in the formula. In 2020, VACA asked the sponsors of one of the bills to not push the legislation forward, instead promising to implement a placeholder change to the formula and conduct a time study to develop a long-term solution. The intervention worked, as the state commissioned a 15-month study on the issue and VACA created a working group to examine the formula while the bills dead-ended.

“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,” Haywood told the Washington Post. Data collection for the time study just concluded. However, as the study lurched forward, Democrats in Virginia lost control of the governor’s office and the House of Delegates.

Meanwhile, Descano was part of the VACA working group focused on the formula, which he said prioritized the status quo. “Not everybody . . . but there were enough people there who wanted to make a change that was cosmetic,” he said. “And what I mean by that is there was explicit conversation, explicit charts about ‘how can we keep [the formula] as close to what we have right now and use other things that are not felony sentencing events.’ And that was how [proposals] were judged.”

The formula has been tweaked to include the number of annual arrests, but it preserves conviction incentives.

Reversing incentives and building safety

For Haywood, the solution to this funding crisis is not for the General Assembly to fund dozens of new prosecutors. That misunderstands both the problems with the funding mechanism and the function of a commonwealth’s attorney’s office.

“If you give an office . . . 25 new prosecutors, they're going to find work to do, and that work is going to involve putting people in cages,” he said. Simply funding diversion programs does not solve the problem of incentives, which should be tethered to something neutral that prosecutors cannot directly influence.

Dehghani-Tafti says that public safety must be conceived of much more broadly to be effective. “You know the hierarchy of needs? We don’t fund the foundational parts of the hierarchy—which are safety, shelter, food, health, and education—enough. And when you skimp on those things, you're going to have unsafe communities down the line,” she said. “[Prosecutors] are one part of this system, and we're an actor that comes in very late . . . giving people felonies and putting them in prison is not going to create that fundamental systemic change that makes our community safer and allows communities to flourish.”

For his part, Descano intends to lobby for legislative changes that will curb prosecutorial imbalances statewide, including eliminating mandatory minimums and abolishing money bail. He also intends to advocate for pay parity between public defenders and commonwealth’s attorneys while working to ensure that every jurisdiction has a public defender office.

“If you really believe in equal justice, you shouldn't be picking and choosing sides with money,” he said. “We're never going to build a more fair and equitable justice system if the only place that grows is prosecutors’ offices.”

And he will continue his work to finally change the funding formula in Virginia.

“It just needs to be fair,” Descano said. “It needs to be fair to new ideas in terms of incentivizing diversion, or at least not penalizing you for it. And not making it a dollars-and-cents issue as to whether or not you're going to do the same old policies that fail for decades or you’re going to try something new.”