The Fairfax County Commonwealth’s Attorney’s Office isn’t backing down on its policy guidance for cases involving undocumented immigrants as defendants.
A day after the U.S. Department of Justice announced it’s investigating the policy for potential civil rights violations, a spokesperson for the prosecutors’ office criticized the probe as “the latest example of the Trump Administration’s own ‘pattern or practice’ of misusing the Justice Department to launch partisan attacks.”
“DOJ’s letter announcing the investigation distorts the office’s policy — which has been in place, publicly, for over 5 years — and happened to arrive just a week before Commonwealth Attorney [Steve] Descano is set to testify before Congress,” Laura Birnbaum, chief of staff for Descano’s office, said in a statement, expanding on an initial comment provided when the investigation was announced on Wednesday (May 6).
“Our office’s policies are fair, legal, and reflect the values of Fairfax County,” she continued. “And we will not be distracted from our mission of keeping this community safe and holding individuals accountable when they commit crimes.”
Detailed in a memo signed by Descano on Dec. 15, 2020, the policy in question directs assistant commonwealth’s attorneys to “consider immigration consequences where possible and where doing so accords with justice” when determining charges, potential plea agreements and sentencing recommendations.
The second part of that phrase is noticeably left out of the Justice Department’s letter notifying the commonwealth’s attorney’s office of the investigation, which says the policy:
states in relevant part “ACAs [ Assistant Commonwealth’s Attorneys] shall consider immigration consequences where possible” and that “prosecutors shall consider … the collateral immigration consequences of the specific crime(s) the defendant is charged with[.]”
Harmeet Dhillon, the assistant attorney general for the DOJ’s Civil Rights Division, said she authorized the investigation to determine if the policy has resulted “in unlawful discrimination” by Descano’s office based on race, national origin or color or people being deprived “of “rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.”
She argued the policy might be leading prosecutors to offer “preferential treatment” to immigrants that wouldn’t be afforded to U.S. citizens.
The policy states, however, that the community’s public safety interest would “likely outweigh” other factors when making charging, sentencing and plea recommendations in a case involving an “act of violence” or “great harm to a victim.”
For “less serious” offenses, prosecutors could negotiate a resolution that avoids or lessens the threat of arrest or deportation by federal immigration officials, but the outcome “will not be better than a resolution offered to a defendant that does not face such collateral issues,” the policy says.
As noted by Birnbaum, Descano is expected to testify in Congress on May 14 at 10 a.m. Fairfax County Sheriff Stacey Kincaid was also asked to appear before a House Judiciary subcommittee to discuss Fairfax County’s policies restricting cooperation with U.S. Immigration and Customs Enforcement except when required by law or court order.
The hearing is not yet listed on the subcommittee’s schedule, but WJLA reported that it was called in the wake of the fatal stabbing of Fredericksburg resident Stephanie Minter at a Hybla Valley bus stop on Feb. 23. Charged with murder, Abdul Jalloh, a national of Sierra Leone who ICE said is not authorized to live in the U.S., had been arrested in connection with five previous stabbing incidents, but jail time was secured in only one case.
Minter’s mother told WUSA9 that she’s “excited” about the DOJ investigation into the commonwealth’s attorney’s office, expressing a belief that undocumented immigrants in Fairfax County aren’t “getting time” the way a U.S. citizen would for the same crimes.
Republicans on the House Judiciary Committee had written letters to Descano and Kincaid in January criticizing their policies limiting collaboration with ICE.
Investigation coincides with raid of leading Virginia Democrat
The investigation was announced on the same day that FBI agents searched the office of Virginia Senate President L. Louise Lucas. The prominent Democrat’s cannabis business in Portsmouth was also raided.
According to the Associated Press, two people involved said the FBI was conducting a corruption investigation that had started during the Biden administration, but some Democrats, including Lucas herself, questioned the raid’s timing, coming just two weeks after voters approved a referendum to allow new Congressional districts drawn to give their party a 10-1 advantage.
State House Speaker Don Scott said he was deeply concerned by the FBI search.
“Right now, there is far more theatrics and speculation than actual information available to the public,” Scott, a Democrat, said in a statement, adding that more facts were needed “before anyone rushes to political conclusions.”
Gov. Abigail Spanberger declined to comment.
Other Virginia Democrats were quick to note that the search comes as the FBI and Justice Department have opened a spate of investigations into perceived adversaries of Trump.
Last week the Justice Department charged former FBI Director James Comey with making a threatening Instagram post against Trump, an accusation that Comey — who for nearly a decade has drawn the president’s ire — has denied. A court dismissed federal prosecutors’ earlier case accusing Comey of lying to Congress.
A separate mortgage fraud case, also ultimately dismissed by a court, targeted Democratic New York Attorney General Letitia James, who brought a major civil fraud lawsuit against Trump and his business. Both she and Comey, a longtime Republican who split from the party in the past decade, denied the charges and said the prosecutions were vindictive.
Such cases “have undermined public confidence” in federal prosecutors in Virginia, Democratic state Attorney General Jay Jones said in a statement.
The Trump administration has also used civil rights law to challenge Fairfax County Public Schools’ policies supporting transgender students, threatening to cut off federal funding.
Oral arguments in a lawsuit filed by the all-Democratic Fairfax County School Board seeking to restore its funding access were heard by the U.S. Fourth Circuit of Appeals on Jan. 29.
