How Soon They Forget: Overcharging is Good Again?

In 2019, when reform-oriented prosecutors first challenged incumbent Commonwealth’s Attorneys in Virginia, one of the most troubling critiques was of the incumbents’ overcharging practices. Overcharging is common nationwide as a tool of coercion. This is generally known as the “trial penalty” or “trial tax”: the ability of prosecutors to make the risk of losing at trial so great, with punishment so harsh, that any rational person would plead guilty—even those who are innocent.

In Virginia, however, overcharging is even more problematic because of how it is incentivized by the state. The “funding formula” for prosecutors in Virginia relies mainly on the number of felonies they indict and the number of felony sentences they obtain. You heard that right: Virginia prosecutors receive more funding from the state—in the form of more attorney positions—if they charge and punish more harshly, and they receive less funding if they offer leniency or diversion/rehabilitation in lieu of a life-altering, permanent felony convictions.

Arlington’s previous Commonwealth’s Attorney, Theo Stamos, happened to be one of the main abusers of this practice, as we discussed in a blog post on our CA Difference website. You can download a copy of that PDF here. As noted, Arlington prosecutors were two to three times more likely to pursue felony punishment for similar conduct than prosecutors in Fairfax, Alexandria, and even Loudoun and Prince William. Her office’s overcharging practices were a matter of considerable discussion during the 2019 Democratic primary, even garnering the attention of Delegate Marcus Simon, who proposed legislation in two consecutive sessions that required adoption of a new funding formula that did not incentivize overcharging.

Why are we talking about this again? Because the memories of some voters are apparently very, very short. Last week, the Arlington police union formally endorsed Josh Katcher, who is challenging Parisa Dehghani-Tafti for Commonwealth’s Attorney in Arlington and Falls Church. The police union very prominently decried the fact that the rate of felony indictments had decreased under Tafti, implying that this was somehow improper, and a cause of police-reported crime increases. Katcher quickly latched onto this talking point and has made it one of his closing arguments in the final weeks of the campaign.

What they failed to note is the point from which Tafti was starting—mindlessly punitive overcharging practices, from the most egregious “overcharger” north of Richmond (Stamos). The “regression” was not to an “alarmingly low rate,” but rather, to a fairly normal rate of felony prosecution, similar to the rate of felony indictments in Alexandria under Commonwealth’s Attorney Bryan Porter, and in Fairfax under former Commonwealth’s Attorney Ray Morrogh.

And by extension, they aren’t asking voters to support “real reform”: they’re asking voters to turn back the clock to the Arlington of old, a local criminal legal system wildly out of step with a progressive community that sincerely wants something better.