Fairfax prosecution reforms addressed by Virginia criminal defense lawyer

Fairfax prosecution reforms were recently listed here on the chief county commonwealth attorney’s social media page. As a Fairfax criminal lawyer, I have repeatedly said that the current Fairfax County Commonwealth’s Attorney’s Office is overall more beneficial to criminal defendants than with the prior two administrations that lasted for five decades through 2020. At the same time, prosecutors have their own agenda, which is not criminal defendants’ agenda, which means that criminal defendants should not back down one iota in fully preparing their defense against any prosecution in this county and all other parts of Virginia. (Note that the above-referenced reforms do not apply to the Fairfax City prosecutor, who handles adult misdemeanor cases involving the Fairfax City police, nor to the Herndon nor Vienna prosecutor.)

Criminal defendant-friendly Fairfax prosecution reforms should be replicated throughout Virginia

Criminal defendant-friendly Fairfax prosecution reforms will show themselves to benefit society overall, which will help convince other prosecutors in Virginia and beyond to apply those reforms to the extent that they are not already doing so. I address some of these Fairfax reforms under the following categories.

Diversion and deferred dispositions provide a second chance to those with no prior related convictions

The listed Fairfax prosecution reforms include screening for possible case diversion and seek more deferred dispositions. The term diversion can include continuing the case generally for a later dismissal or amending a criminal charge(s) to a less serious charge. The term deferred disposition can be associated with Virginia Code § 19.2-298.02, which puts a Virginia criminal defendant’s feet more to the fire than with diversion, in that a judicial finding of a violation of probation terms under § 19.2-298.02 can be expected to mean being convicted for the criminal count(s) that are designated in the Va. Code § 19.2-298.02 court order that results from the parties’ agreement, without the option to appeal the result. Deferred dispositions under Va. Code § 19.2-298.02 require a plea, even if that plea is not guilty (and the prosecutor does not have to agree to a not guilty plea under that statute, versus a conditional guilty or no contest plea). Instituting a Va. Code § 19.2-298.02 disposition is at the choice of a judge. At least some judges will want a defense admission that the evidence against them — if accepted as true — is sufficient to convict. If the record reflects such an admission, that can counter any immigration benefits of such a disposition for non-United States citizens, and might be seen more by security clearance authorities as close to a conviction.

Not relying on mandatory minimum sentencing for Virginia DUI and other prosecutions

For Fairfax prosecutions, the county commonwealth’s attorney’s social media page says that: “We’ve strived to get away from reliance on mandatory minimum sentencing.” That approach is great to implement for all defendants facing mandatory minimum sentencing, including for those at risk for a conviction for a repeat Virginia DUI offense and for a DWI conviction with a blood alcohol concentration at or over a 0.15 blood alcohol concentration (BAC).

Using prosecutorial discretion to amend felony charges to misdemeanor counts, to avoid stacking multiple charges against Virginia criminal defendants, to advocate for alternative sentencing, and to avoid seeking excessive active probation periods.

For Fairfax prosecutions, the county attorney says he has “increased the felony larceny threshold to $1,500” from the $1000 statutory threshold. Also, the county prosecutors “are directed to use felony charges only when necessary to guaranteeing public safety and accountability.” Does the foregoing only apply only to plea negotiations, or also when the defendant pleads innocent and proceeds to trial? The county commonwealth’s attorney also says: “Prosecutors are prohibited from charge-stacking solely to increase the VA sentencing guidelines’ punishment range.” The chief county prosecutor also says that “If Virginia Sentencing Commission’s Non-violent Risk Assessment tool recommends the defendant for alternative punishment, our prosecutors are directed to advocate for alternative punishment not involving incarceration.” He also says: “We no longer seek excessive active probation periods.” His foregoing link does not define “excessive”.

Reporting discriminatory police actions, not assisting with deportation, and providing early discovery

For Fairfax prosecutions, the county commonwealth’s attorney also says that his office reports discriminatory law enforcement actions to police internal affairs, does not assist immigration authorities with deportation matters, and provides discovery materials early. All of these and the above criminal defense-friendly reforms are important and should be adopted in the rest of Virginia to the extent that they have not been so adopted yet.

Fairfax criminal lawyer Jonathan L. Katz pursues your best defense against Virginia DUI, misdemeanor and felony prosecutions. Call 703-383-1100 for your free in-person initial consultation with Jon Katz about your court-pending case.