Attorney General Jason Miyares Releases Report Detailing Misconduct, Failures, and Constitutional Violations by Fairfax County Commonwealth’s Attorney Steve Descano

Attorney General Jason Miyares today released a comprehensive investigative report exposing an alarming pattern of misconduct, neglect of victims’ rights, constitutional violations, and dangerous prosecutorial policies within the Fairfax County Commonwealth’s Attorney’s Office under Steve Descano.

The investigation compiles years of evidence showing the office led by Fairfax Commonwealth’s Attorney Steve Descano repeatedly committing Brady and discovery violations, disregarding victims’ statutory and constitutional rights, entering into improper plea agreements, demonstrating raw prosecutorial incompetence, and enacting unlawful or unconstitutional policies that undermine public safety and the rule of law.

“Justice isn’t optional, and our laws are not suggestions. Fairfax Commonwealth’s Attorney Steve Descano has betrayed the rule of law and the very people he swore to protect, turning prosecutorial discretion into deliberate, weaponized incompetence,” said Attorney General Jason Miyares. “The oath prosecutors take to uphold the law and protect victims is sacred. It demands courage, integrity, and perseverance in the pursuit of justice. That means treating victims with fairness, dignity, and respect, and enforcing the laws passed by the people’s elected representatives. When a prosecutor refuses to do that, victims are denied justice and the public loses faith in the very system meant to protect them. This is dangerous, this is wrong, and it cannot continue.”

Virginia Circuit Court judges have the authority to reject plea agreements, but rarely do so. Even rarer is the extraordinary step of a judge publishing a legal opinion explaining the rejection. In multiple cases, Fairfax Circuit Court judges have rejected plea agreements from Descano’s office because they were so lenient toward violent and serious offenders that they offended both the rule of law and the administration of justice.

Additionally, prosecutors have a constitutional duty to disclose “Brady” evidence to criminal defendants, as required by the Due Process Clause of the U.S. Constitution. Prosecutors must also comply with court rules requiring them to make discovery disclosures of important evidence, such as defendant statements, police reports, scientific analyses, expert declarations, a list of witnesses, and other physical evidence.

In Fairfax County, Commonwealth’s Attorney Steve Descano has, through repeated failures to prosecute serious offenses, effectively abdicated his responsibility to uphold the law. This conduct constitutes what may be described as weaponized incompetence—a deliberate refusal to discharge prosecutorial duties as entrusted by statute. The result is a manifest injustice to victims and a breach of the public trust that government is obligated to preserve.

Furthermore, Fairfax Commonwealth’s Attorney Steve Descano has engaged in an ongoing pattern or practice of unlawfully and unconstitutionally denying crime victims the rights guaranteed by Article I, Section 8-A of the Virginia Constitution and § 19.2-11.01 et seq. of the Virginia Code, including but not limited to the right to be accorded fairness, dignity, and respect by officers of the courts.

Moreover, Fairfax Commonwealth’s Attorney Descano is engaged in an ongoing pattern or practice of violating the Suspension Clause of the Virginia Constitution, Article I, Section 7, by implementing office policies prohibiting the enforcement of certain Virginia criminal laws passed by the General Assembly and replacing them with a different legal code of his own invention.

Specifically:

• Descano’s Policy Prohibiting Enforcement of Mandatory Minimum Sentences for Serious Crimes
• Descano’s Policy Establishing a Different Statutory Threshold for Grand Larceny
• Descano’s Policy Ignoring the Requirement of Cash Bail for Repeat Felons

Virginia prosecutors do not have discretion to ignore criminal code provisions with which they disagree. Fairfax County residents are entitled to the services of a prosecutor who obeys the Constitution and enforces all laws fairly and equally.

Justice, properly understood, requires both the recognition of the inherent rights of victims to be treated with fairness, dignity, and respect, as well as the consistent enforcement of duly enacted laws to safeguard the common good. When prosecutorial discretion is exercised in a manner that selectively disregards statutory obligations for political purposes, two outcomes follow: (1) the denial of justice to individual victims, and (2) a corresponding erosion of public confidence in the rule of law.

Accordingly, Attorney General Miyares is referring this matter to the U.S. Department of Justice for further civil or criminal investigation into whether the Fairfax Commonwealth’s Attorney’s conduct has engaged in a pattern or practice of (1) denying United States citizens the same rights, privileges, and immunities as illegal aliens in charging decisions and plea negotiations, and (2) concealing, harboring, or shielding from detection, or attempting to conceal, harbor, or shield from detection any illegal alien, in violation of 8 U.S. Code § 1324(a)(1)(A)(iii).

In addition to the referral, Attorney General Miyares makes the following recommendations for action by the Virginia General Assembly:

• Expand the prosecutorial discretion of the Office of the Attorney General granted in Virginia Code § 2.2-511(A) to include any sex crime against a minor, as well as any violation of the sex offender registration obligation of any current sex offender registrant who is in violation of Virginia Code Sections § 9.1-902 and § 18.2-472.1.
• Resume a rebuttable presumption against bail in Virginia Code Section § 19.2-120 for any violent offense listed in Virginia Code § 17.1-805(C) to protect the safety of the community during the pendency of any criminal case.
• Establish a working group to assess and analyze statewide compliance with the Crime Victim and Witness Rights Act. The working group should also study, discuss, and develop a plan to assess the evaluation of input from victims when plea agreements, charging agreements, and sentencing agreements are crafted and conveyed to defendants and their attorneys.

Read the report here.