New bond data dashboard shows disagreement between Fairfax County prosecutors and courts

A new data dashboard shows Fairfax County prosecutors are sometimes asking for more detainments of defendants than judges.

The Office of the Fairfax County Commonwealth’s Attorney (OCA) released a dashboard in October with data comparing how often and under what circumstances prosecutors are asking for pre-trial detainment and release to a judge’s recommendations.

“We’re trying to become a more data-driven office,” Commonwealth’s Attorney Steve Descano told FFXnow. “We’re using this information that we’re collecting here for internal improvements, internal trainings, restructurings, and changing of our processes.”

He acknowledged that too often decisions in the justice system lack transparency and are done without the public’s knowledge.

“We want to let the community know what is going on in their justice system,” he said. “I think this system is a black box to many people. We want to change that.”

Courts and prosecutors diverge on when to detain defendants

The dashboard only covers bond review hearings, where a county prosecutor makes a recommendation to a judge that a defendant either be detained or released before their trial.

Descano said that involves “a small percentage of our cases,” though he was unable to provide the exact percentage compared to the total number of cases handled by the county.

The dashboard also only has data from a six-month period between Jan. 1, 2022 and June 30, 2022.

According to the provided data, decisions by the OCA don’t always neatly line up with the self-described “progressive” prosecutor reputation that Descano ran on in 2019, nor do they clearly affirm detractors’ perception of the office as “soft on crime.”

While prosecutors and courts generally align on non-violent misdemeanors and felonies, the OCA recommended detainment for violent felonies 20% more often than the courts, including cases involving cash bail. Descano called that the number one “disagreement” between his office and judges.

As the dashboard notes, the OCA and courts don’t always agree on when a perpetrator is a “danger to family or household member.” Descano said those disagreements generally relate to domestic violence cases, particularly those involving strangulation.

“We take those really seriously because data has shown that if an intimate partner strangles somebody, they’re seven times more likely to actually murder them,” Descano said.

The OCA also recommended detentions for sex offenses at higher rates than the courts. For felonies, it asked for detainment 89% of the time, while the judges recommended it 52% of the time. For misdemeanors, OCA asked for detainment 58% of the time, with judges agreeing in only 25% of cases.

“It shows me that some judges may not see the same dangerousness to those types of crimes that we do or may value it differently,” Descano said. “We’re not putting this out data to try to slam judges or anything. If anything, it shows [how] different actors in the system view different types of accusations.”

The data also shows that the OCA recommended detainment at a higher rate — meaning a lower rate of release — for non-sexual misdemeanor offenses.

Overall, there were 312 bond review hearings for non-sexual violent and non-violent misdemeanors. The OCA recommended release in 212 of them — 68% of the time — while the courts recommended release in 224 — 78% of the time.

Descano said his office could “tighten up” its approach to bond recommendations.

“I think what we’ll see is that more and more prosecutors will, when they analyze these cases, actually start to come to the conclusion rightly, I think, that some of the people that we have asked to be detained in the past actually don’t represent a danger to the community, and we would actually ask them to be released,” he said.

Since entering office more than two years ago, Descano has been criticized as overly lenient by some, including Attorney General Jason Miyares and conservative groups that have launched recall efforts against him. Other reform-minded Northern Virginia top prosecutors have faced similar charges.

“What we’re doing here is not about leniency. What we are doing here is about what works long term to build broad, long-lasting community safety,” he said. “This isn’t about being nice. This is about effective.”

Cash bail decisions “incoherent,” Descano says

In addition to detention and release rates, the bond dashboard presents information about cash bail imposed by judges. In the six-month period, judges allowed cash bail in 113 cases — more than three-quarters of them for felony charges. The most common bail amounts were $2,500 and $5,000.

As promised during his campaign, Descano ended requests for cash bail in 2020, and he maintains that, while the courts still set cash bonds in some circumstances, they “have nothing to do with community safety” and create a “two-tier system of justice.”

“It can actually lead to more dangerousness because it gives rich people an opportunity to buy their way out immediately when they present a danger, and it holds people who can’t afford it,” he said.

According to the dashboard, in one case, a man was given a $2,500 bail after being arrested for drug possession and trespassing, while someone who shot into a crowded bar was held on a $5,000 bail. How the courts arrive at those decisions “doesn’t really make sense to me” and is often “incoherent,” Descano said.

“I would guess that they got picked because they are nice round numbers,” he said on why $2,500 and $5,000 were the most common bail amounts.

The OCA plans to update its dashboard every few months. Descano says the public can expect the next update to come as soon as January with data reflecting the rest of 2022.

He acknowledged it was risky putting this information out there, opening him and his office to potential criticism, but he believes it’s the right move.

“Putting out your decision-making data is a big risk. There’s a reason prosecutors don’t do it…but I think that’s bad public service,” Descano said. “Our goal is to really have dashboards like this for every decision-making process along the line when it comes to charges, pleas, sentences. We’re looking to make sure we’re in line with the values of the community.”