What Kind of Society Do Virginians Want? The Case of Fairfax County

Fairfax County Commonwealth’s Attorney Steve Descano

by James C. Sherlock

Yesterday I offered for consideration a lengthy list of misdemeanors that Commonwealth’s Attorney Steve Descano in Fairfax County is declining to prosecute.

I did that with a hope that the House of Delegates will amend and pass HB 1198.

Today I am going to ask Virginians to consider in what type of society they wish to live. What is the proper balance between concern for victims and concern for perpetrators?

Here are the classes of misdemeanor crimes that Mr. Descano does not consider  worthy of prosecution.

No one wants anyone jailed unnecessarily. It can ruin the life of the perpetrator and the lives of his family. We agree with Mr. Descano on that.

We value prosecutorial and judicial discretion. But we ask that it be used wisely, not in blanket refusals to enforce entire sections of the Virginia criminal code.

Every scrap of historical evidence says that the citizens of Fairfax County will get more of the crimes Mr. Descano ignores.

Let’s consider a few of those misdemeanors in detail to assess what exactly Mr. Descano has declined to prosecute.

Misdemeanor resisting arrest

  • obstruction;
  • intimidation by threats of force;
  • intentionally preventing or attempting to prevent a law-enforcement officer from lawfully arresting him, with or without a warrant.

All misdemeanors. None prosecuted by the Fairfax County Commonwealth’s Attorney.


… having received a visible or audible signal from any law-enforcement officer to bring his motor vehicle to a stop, drives such motor vehicle in a willful and wanton disregard of such signal or who attempts to escape or elude such law-enforcement officer.

If the police officer is killed in the chase, eluding is a felony. Good to know. It will comfort the family.

Misdemeanor Assault and Battery

Any person who commits a simple assault or assault and battery is guilty of a Class 1 misdemeanor.

If any person commits a battery against another knowing or having reason to know that such other person is a full-time or part-time employee of any public or private elementary or secondary school and is engaged in the performance of his duties as such, he is guilty of a Class 1 misdemeanor.

In addition, any person who commits a battery against another knowing or having reason to know that such individual is a health care provider… who is engaged in the performance of his duties in a hospital or in an emergency room on the premises of any clinic or other facility rendering emergency medical care is guilty of a Class 1 misdemeanor.

Battery against schoolteachers and nurses. Not prosecuted in Fairfax County. Where are the teachers unions when they might do some good?


… simple larceny not from the person of another of goods and chattels of the value of less than $1,000, except as provided in clause (iii) of § 18.2-95 (Unless the article stolen is a firearm, then grand larceny) shall be deemed guilty of petit larceny, which shall be punishable as a Class 1 misdemeanor.

[Parenthetical clarification by author]

You are the owner of a store. Five shoplifters hit you for $4,000 a day. Not prosecuted in Fairfax County. Mr. Descano will be true to his principles. You will be out of business.

Possession; Possession With Intent to Distribute

Any person who proves that he gave, distributed or possessed with the intent to give or distribute a controlled substance classified in Schedule III or IV, except for an anabolic steroid classified in Schedule III, constituting a violation of § 18.2-248.5, only as an accommodation…is guilty of a Class 1 misdemeanor.

A few Schedule III drugs.

  • Ketamine – Ketamine is a dissociative anesthetic that has some hallucinogenic effects. It distorts perceptions of sight and sound and makes the user feel disconnected and not in control. It has been used to facilitate sexual assault.
  • Suboxone is an opioid addiction medication that can become a drug of abuse. Chronic abuse of Suboxone can lead to or exacerbate opioid addiction, which may require additional treatment through a drug rehab program to overcome.
  • Benzphetamine is a stimulant similar to an amphetamine. Warning: Benzphetamine may be habit-forming and should be used only by the person it was prescribed for. Never share Benzphetamine with another person, especially someone with a history of drug abuse or addiction.
  • Chlorhexadol is a sedative and hypnotic.; adverse interactions with 444 drugs.

Cute. A date rape drug, a drug that can require rehab, an amphetamine substitute for girls with body image problems, and a drug with so many adverse drug interactions it would take a pharmacist to assess personal vulnerability.

Possession and distribution of Schedule III drugs are misdemeanors in Virginia in small quantities if not sold. Not prosecuted in Fairfax County.

Reckless Driving

…any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving.

“Endangering life and limb.” Not prosecuted in Fairfax County.

What to do:

HB 1198. An amendment to HB 1198 can reinforce the necessity of protecting the public. It can give the Attorney General authority at his discretion and at the invitation of local law enforcement to prosecute crimes in jurisdictions in which local Commonwealth’s Attorneys have signaled they will ignore entire classes of crimes.

Removal. As for Mr. Descano, current Virginia law on removal of an elected public official for “willful and persistent failure to perform his duties” requires a petition signed by residents totaling 10% of the total number of votes cast at the last election for the office that the officer holds. In this case, it will take 31,000 signatures.

Then a Circuit Court judge can remove him. I encourage the citizens of Fairfax County to pursue that option.

At the same time, Virginia may wish to consider revising that law to match those in other states that let the Governor, the state’s senior elected official, remove him.

That scenario is currently playing out in New York between the Governor and the new Manhattan District Attorney, Alvin Bragg. He has announced that, like Descano, he will ignore laws with which he does not agree.

Mr. Bragg’s “charging” instructions that directed his staff which crimes to ignore came from the same progressive approach as Descano’s. But Mr. Descano’s list is much longer.

On Thursday, before a Friday meeting with the Governor:

New York City’s Manhattan District Attorney Alvin Bragg said Thursday that a controversial memo he released at the start of his term left “the wrong impression” about his law enforcement policy plans, adding that it “left many New Yorkers justifiably concerned.

Justifiably concerned indeed. About Mr. Bragg ignoring a list of crimes that are but a subset of Mr. Descano’s.

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11 responses to “What Kind of Society Do Virginians Want? The Case of Fairfax County”

  1. Nancy Naive Avatar
    Nancy Naive

    Better a CA who declines to prosecute when perhaps he should than one who prosecutes when clearly he shouldn’t.


  2. Well, we’ll find out soon enough if there are consequences to Descano’s non-prosecution policies. I’m inclined to agree with Jim Sherlock as to the effects. I think we’ll see an erosion of public order. Fairfax won’t turn into San Francisco overnight, but the trend to disorder should be reflected in the crime report statistics.

    The 2020 statistics didn’t show an increase in violent crime, but did show an increase in auto thefts, thefts from automobiles, and vandalism. https://www.baconsrebellion.com/hows-descanos-social-justice-prosecution-policy-working-out/

    But, then, Descano was only getting started. The 2021 statistics should be more revealing. If we see an upward trend in crime stats, then the concerns about Descano’s policies will prove justified. If not, perhaps the fears are overblown. We’ll see.

    1. Stephen Haner Avatar
      Stephen Haner

      Is prosecutorial discretion so enshrined in Virginia law that a mandamus action could not force him to do his sworn duty? Serious question. Strikes me as ripe for that, and that the Attorney General could undertake.

  3. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    This post is grossly misleading. First, the clear implication is that the decision of the Fairfax County Commonwealt’s Attorney to not appear in district court on misdemeanor charges (“not prosecute”) means that the alleged offender is free to go his merry way. This is not true. As Mr. Kassabian, the attorney that you quoted at great length in an earlier post, pointed out:

    “Progressive policies of the prosecutor’s office certainly do not mean that the police won’t charge for a crime committed; it only means that a prosecutor in Fairfax County will not get involved or handle many matters that they once did.”

    Persons arrested or ticketed for these misdemeanor and traffic charges will be booked or issued a summons, depending on the circumstances. They will be required to appear in court, where the arresting officer will present the evidence, and the judge will render a decision.

    Second, it is not uncommon for a Commonwealth’s attorney to choose not to appear in district court cases. As an article in a November 2020 issue of Virginia Lawyer relates, prosecutors in jurisdictions as diverse as Wise County, Franklin County, Chesterfield County, and Virginia Beach currently at times in the past have chosen to not to appear in district court on misdemeanor cases. Observing district court proceedings in the city of Richmond, I watched as numerous cases were prosecuted without the presence of an assistance Commonwealth’s attorney. In summary, Descano is not doing anything that has not been done in other parts of the Commonwealth. https://virginialawyer.vsb.org/publication/?i=684193&article_id=3818805&view=articleBrowser

    Just to look at one of the categories that you are so upset with Descano for not appearing in district court: reckless driving. The quote you provide is a very general description in the Code. But, there are many specific behaviors that are defined as “reckless driving”. Most are misdemeanors; some are felonies, for which a prosecutor will appear in circuit court. Some specific examples on reckless driving set out in the Code:

    Failure to give adequate signal of intent to turn or stop;
    Exceeding the posted speed limit by 20 mph or more.

    Are really saying that you think an assistant Commonwealth’s attorney should be present in district court to handle cases in which the drivers have been ticketed for not giving a proper signal or driving 75 mpg in a 55 mph zone?

    1. James C. Sherlock Avatar
      James C. Sherlock

      Dick, go to descano’s own description of his prosecutorial philosophy. I linked it. If you have any questions, say about date rape drugs or resisting arrest, ask him, not me.

      1. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        You ignored completely my points.

        As for date rape drugs, if a rape or attempted rape were involved, the prosecutor will be involved, as was the case in the past. As for resisting arrest, in the vast majority of cases, that is a charge that is added to more serious charges, which are handled by the prosecutor.

        1. James C. Sherlock Avatar
          James C. Sherlock

          As you wish.

          “As for date rape drugs, if a rape or attempted rape were involved, the prosecutor will be involved.”

          Banning the possession or transfer of date rape drugs is a crime in Virginia so fewer rapes will happen.

          “As for resisting arrest, in the vast majority of cases, that is a charge that is added to more serious charges, which are handled by the prosecutor.”

          You state that resisting arrest is an included lesser charge in the “vast majority of cases”. Cite the statistics.

          Also consider what will happen under Mr. Descano’s policy if the other charge is also a misdemeanor on his no prosecute list, such as misdemeanor hit and run, shoplifting or eluding. Two misdemeanors don’t equal a felony. He is not prosecuting either.

          You are trying to convince yourself that things are not happening:
          – that Mr. Descano promised in his campaign that he intended to stop the office from doing; and
          – that Mr. Kassabian noted after his first year in office he had indeed stopped doing.

          Take it up with them.

    2. James C. Sherlock Avatar
      James C. Sherlock

      What does “handle many matters that they once did” mean to you?

      1. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        It means that there will no longer be an assistant Commonwealth’s attorney attending sessions of the general district court.

        As Mr. Kassabian made clear in your current link to his site:

        “Despite the fact that prosecutors in Fairfax County will no longer be prosecuting certain crimes, it is important that individuals who find themselves stopped or investigated by the police, understand that they can still be charged and convicted with any of these offenses, and equally that they will still have to go to court, just as it was in the past.”

        1. James C. Sherlock Avatar
          James C. Sherlock

          That is what I wrote. Police will have to personally prosecute because the Commonwealth’s Attorney will not. We are in violent agreement.

  4. Virginia Gentleman Avatar
    Virginia Gentleman

    This is very misleading which is intended to only make people think that people arrested for a crime will simply be set free. We can do better than this.

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