By Shirleen Guerra
(The Center Square) – The U.S. Department of Justice has opened a civil rights investigation into the Fairfax County Commonwealth Attorney’s Office, examining whether its policies on plea bargaining and sentencing discriminate against U.S. citizens.
In a letter addressed to Fairfax Commonwealth’s Attorney Steve Descano, the Civil Rights Division said it is investigating whether the office violated Title VI of the Civil Rights Act of 1964 and the Safe Streets Act, which prohibit recipients of federal funding from discriminating based on race, color or national origin.
The Justice Department said its Civil Rights Division will investigate whether the office discriminated against U.S. citizens “by offering preferential treatment only to illegal alien criminal defendants,” according to a release announcing the investigation.
According to the letter, the investigation centers on a policy adopted by the office in December 2020 involving plea bargaining, charging decisions and sentencing practices.
The policy states prosecutors “shall consider immigration consequences where possible and where doing so accords with justice,” while also stating those considerations are “not outcome determinative.”
It directs prosecutors to consider the collateral immigration consequences tied to criminal charges and the impact deportation or removal may have on families and communities.
The letter states investigators are seeking to determine whether those policies resulted in unlawful discrimination or improper law enforcement practices.
But the policy also includes limitations on how those considerations are applied.
The document states immigration consequences should receive minimal weight in serious cases involving significant harm to victims. It also says any alternative resolution offered to avoid immigration consequences “will not be better than a resolution offered to a defendant that does not face such collateral issues.”
The policy further requires defense attorneys to submit a written legal analysis identifying the immigration consequences and proposed alternatives before prosecutors consider those discussions.
The federal investigation follows years of political and legal disputes surrounding Fairfax County’s handling of cases involving noncitizen defendants and immigration detainers.
In 2025, then-Attorney General Jason Miyares released a report criticizing several Fairfax prosecution policies and plea agreements involving noncitizen defendants, including policies directing prosecutors to consider immigration consequences during plea negotiations.
Republican Gov. Glenn Youngkin also requested a review in 2025 after the release of a Fairfax County suspect later charged in the attempted abduction of a child at Fair Oaks Mall.
The Center Square previously reported on disputes involving ICE detainers, cooperation between local and federal immigration authorities and criticism from state officials and victims’ advocates over Fairfax County policies.
In a statement to The Center Square, Descano confirmed his office had received notice of the investigation.
“My policies are fair, legal, and reflect the values of my community,” Descano said.
The letter states investigators have not reached conclusions and said the department is seeking cooperation from the Fairfax prosecutor’s office as the investigation moves forward.
