Fairfax County has taken significant steps to improve its criminal justice system over the past two years, but more work still needs to be done, concluded an evaluation conducted by the Fairfax County NAACP and released on Sept. 18.
Compiled by the criminal justice committee of the local civil rights organization, the 2016-2017 Criminal Justice County Report Card praises Fairfax County for creating its Diversion First program, which provides treatment as an alternative to incarceration for some offenders with mental health or substance use issues.
The report card also credits the county for establishing a civilian review panel and independent police auditor office to provide oversight for the Fairfax County Police Department (FCPD), making it one of only two jurisdictions in Virginia to have both bodies, according to Fairfax County NAACP president Kofi Annan.
At the same time, these changes “faced stiff opposition” from some members of the Fairfax County Board of Supervisors, and nearly all of the evaluated county officials, which included county supervisors as well as FCPD Chief Edwin Roessler Jr. and Sheriff Stacey Kincaid, have “to do a better job engaging with minority groups to better understand their collective concerns,” the report found.
“I think, overall, the county is on the right track,” Annan, who was involved in developing the report card, said. “…We think that, for instance with the diversity, they are putting forth some effort, but just not enough effort or not necessarily nuanced in the way they’re approaching things.”
Diversity, meaning the presence of minority community members in law enforcement, is one of five issues that the NAACP examined, along with the use of force, civilian oversight and accountability, incarceration alternatives, and minority community outreach.
The report card gives the county supervisors, Roessler, and Kincaid individual grades of A through F for their support of measures addressing each of the five categories as well as an overall rating.
Fairfax County fared the best when it came to incarceration alternatives, thanks to the county’s Diversion First program.
With a “C” grade, Springfield District Supervisor Pat Herrity is the only elected official to receive a score lower than a “B” in that category.
Launched on Jan. 1, 2016, Diversion First offers people with mental health or substance use issues, as well as developmental disabilities, who come into contact with law enforcement for low-level offenses the option to seek treatment and other support services at the Fairfax-Falls Church Community Services Board’s (CSB) Merrifield Center.
According to the 2016 Diversion First Annual Report, 375 people were diverted from a potential arrest in the program’s first year.
About 40 percent of the 1,300 inmates, on average, at the Fairfax County Adult Detention Center (ADC) have a mental health issue, according to the Fairfax County Sheriff’s Office website.
“I was pleased to see they recognized the work that we’re doing on Diversion First and some other things,” Braddock District Supervisor John Cook, who chairs the board’s public safety committee, said. “I’m very proud of my role in that program, so I was glad to see that that was recognized.”
Cook received an overall “C+” grade as the report card describes him as a “force for positive change with regard to criminal justice.”
However, the NAACP says that the supervisor could have been a stronger advocate for ensuring that Fairfax County’s newly established Office of the Independent Police Auditor and Police Civilian Review Panel “were given the strongest tools available to investigate police actions.”
Like the Diversion First program, the Office of the Independent Police Auditor and Police Civilian Review Panel were among the 202 recommendations included in the Ad Hoc Police Practices Review Commission report released on Oct. 8, 2015.
Fairfax County Board of Supervisors Chairman Sharon Bulova assembled the commission in February 2015 to review FCPD practices in response to public frustration over the lack of transparency around the 2013 officer-involved shooting of Springfield resident John Geer.
The board voted to establish a civilian review panel to look into allegations of abuses of authority or misconduct on Dec. 6, 2016 and appointed nine county residents to serve on the panel on Feb. 28.
Fairfax County hired Richard Schott on Feb. 14 as its first independent police auditor, an office charged with monitoring internal FCPD investigations into officer-involved shootings, in-custody deaths, and use-of-force incidents.
The creation of the police auditor office and civilian review panel made Fairfax County one of only two jurisdictions in Virginia to have both oversight bodies, according to the Fairfax County NAACP criminal justice report card.
“That’s a significant accomplishment,” Annan said.
However, some community members have expressed concern over the auditor and panel’s lack of authority to interview their own witnesses or conduct investigations separate from the police.
“We see time and time again that we can’t always leave it up to the police department to investigate their own people because they have a vested interest in protecting them,” Annan said. “It’s just a matter of finding the right balance, and we’d like a little more strength given to the ability to investigate.”
According to Police Civilian Review Panel chairman Adrian Steel, Virginia law prevents Fairfax County from giving the panel the power to do its own investigations.
As a state that follows the Dillon Rule, Virginia limits the powers of local governments, including Fairfax County, to ones that are specifically granted to them by the General Assembly, ones “necessarily or fairly implied from a specific grant of authority,” and ones “essential to the purposes of government,” according to the county website.
As someone who served on the ad hoc police practices review commission, Steel says he would have preferred a civilian review panel with investigatory powers, but that limitation does not render the panel ineffective.
“If we see something that we think was not done right or not comprehensive, we can…request, and [the police] need to do it for us, that additional investigation,” Steel said. “…I’m comfortable with that.”
Cook says the board wanted to ensure the panel and auditor would be compliant with state law. He adds that both bodies will provide reports on their work, with the auditor releasing one quarterly and the panel releasing one annually, so the county can make adjustments in the future.
“We want to support them in every way we can,” Cook said. “If there are ways we can support them more, then I think we’re going to want to do that, and we’re going to want to see how things are going.”
The creation of the independent police auditor’s office and civilian review panel led the Fairfax County NAACP to give county officials positive marks overall for civilian oversight and accountability, though Herrity, Kincaid, and Sully District Supervisor Kathy Smith each received an “F.”
The report card says that Smith had expressed opposition to some recommendations proposed by the ad hoc commission due to the potential costs and questioned the need for three positions in the Office of the Independent Police Auditor “in an attempt to reduce the strength and capability of the office.”
While she did wonder whether the office could start with only two positions, the supervisor says that the NAACP’s assessment does not reflect her real beliefs or commitment.
“I just wanted to make sure we knew what the workload is, but I did support having a police auditor,” Smith said. “…I do support the efforts of the ad hoc commission. I want to make sure that we have a safe and secure community for everybody.”
For his part, Herrity seems unfazed by the report card’s criticism of his opposition to some of the ad hoc commission recommendations, including the creation of a civilian review panel.
The Fairfax County NAACP gave the Springfield supervisor an overall “D” for frequently citing costs as the basis of his opposition, saying that “in his attempt to paint himself as being pro-law enforcement, he makes the unfortunate and misguided mistake of taking anti-transparency and anti-accountability positions.”
“I am extremely proud of our police department and the officers that keep us the safest jurisdiction of our size in the nation and without the problems we have seen in other jurisdictions,” Herrity said in an emailed statement. “I fully support efforts to improve outreach and transparency. That said, if not wanting to completely ‘reengineer’ our police department gets me a D, I will take it.”
The report card also criticizes Lee District Supervisor Jeffrey McKay for “focusing more on budgetary factors rather than the need to increase public trust,” though McKay argues that his emphasis on financial implications stems from his responsibilities as head of the board’s budget committee.
McKay cited his work as a member of the Successful Children and Youth Policy Team (SCYPT) and the role he played in drafting the One Fairfax resolution adopted by the Board of Supervisors in July 2016 as evidence that his “C” grade is misguided.
The One Fairfax resolution directed Fairfax County to consciously consider racial and social equity when developing and implementing policy decisions.
“I have a 10-year record on the Board of Supervisors that is the antithesis of the grade that their very narrow report card reported,” McKay said.
This is the first year that the Fairfax County NAACP has released a criminal justice report card, but Annan says the organization is working on similar evaluations of the county’s approach to immigration, affordable housing, and education.
The Fairfax County NAACP’s criminal justice committee put together the report card based on interviews with each individual official, information gathered from public safety and Board of Supervisors meetings either through attending in-person or by reading the minutes, and discussions with other community organizations and leaders.
Of all the policy areas that were evaluated by the report card, Fairfax County most needs to improve when it comes to the diversity of law enforcement agencies and its use-of-force policies, according to Annan.
A report released by the FCPD on July 18, 2016 found that 41 percent of the department’s 539 use-of-force incidents in 2015 involved a subject identified as black, even though only 8 percent of the county’s 1.1 million residents are black.
“When you go talking about recruiting, things like that could hurt your chances of recruiting, because [African Americans] may not want to join the force,” Annan said. “They may not see the force as something they want to be a part of, so these things overlap.”
Bulova, who received a relatively high “B” overall from the criminal justice report card, says that the county is taking the findings of that use-of-force report seriously.
The Board of Supervisors unanimously passed a motion at its Apr. 4 meeting instructing the independent police auditor’s office to further investigate the disparity of use-of-force incidents involving black residents.
The clerk’s board summary of the meeting does not mention any deadline for the review, but Schott was directed to include possible recommendations in his eventual report of the findings.
Bulova says that George Mason University is currently conducting its own study of the police use-of-force demographic report.
“We already knew there was a higher percentage of use of force, a higher percentage of arrests with minorities, in particular blacks and also Hispanics,” Bulova said. “We’re interested in getting to the heart of why that is and then making sure that we’re getting really down to business to make sure that’s not the case going forward.”
Roessler welcomed the feedback that the Fairfax County NAACP provided through its criminal justice report card, which gave him a “B” for guiding the implementation of the ad hoc commission recommendations and the department’s “outstanding” minority community outreach.
While recognizing Roessler’s support for the civilian review panel, independent police auditor, and body-worn cameras for police officers, the report card cites strong opposition to his desire to retain the right to grant access to footage from body-worn cameras.
In addition, the report card criticizes the police department for not specifically addressing racial disparities in use-of-force incidents. Roessler has implemented mandatory de-escalation training and crisis intervention team (CIT) training in an effort to generally reduce the number of use-of-force incidents.
“They are holding me accountable, and I welcome that,” the police chief said, calling the report card “fair and balanced.”
Roessler says that he has put into practice all of the ad hoc commission recommendations that he is able to address, with the remainders, such as body-worn cameras, requiring additional funding, law or policy changes, or the cooperation of other agencies.
The police chief will give a presentation on body-worn cameras and an overall update on the county’s progress on the ad hoc commission recommendations during the Board of Supervisors’ public safety committee meeting on Oct. 10.
Giving Kincaid a “C+” grade, the report card commends the sheriff for the diversity of her staff, which is about 33 percent composed of people from minority communities, and for her support for Diversion First.
However, the Fairfax County NAACP has not reversed its criticism of Kincaid’s handling of the death of Natasha McKenna, who died in the Fairfax County Adult Detention Center in 2015 after being tased several times.
Kincaid told the NAACP that she has followed all of the ad hoc commission’s use-of-force recommendations, including prohibiting the use of Tasers, but the organization remains skeptical that the sheriff’s office is doing enough to prevent use-of-force incidents, such as the fatal Aug. 16 shooting of an Inova Fairfax Hospital patient by one of the deputies involved in McKenna’s death.
The criminal justice report card also criticizes Kincaid for declining to submit the Fairfax County Sheriff’s Office to any form of independent, civilian oversight, including the civilian review panel and independent police auditor.
“The thing is what happens in the prison kind of stays in the prison, unlike the police department, where things are kind of out in the open,” Annan said. “…We’d just like to have more oversight, someone reviewing those cases, someone independent from the sheriff’s office and the police department to make sure that people are being treated right and there aren’t any abuses of power going on.”
The FCPD is required to investigate all in-custody deaths of inmates in the ADC.
The sheriff’s office news webpage lists eight in-custody deaths since 2015, including McKenna. Most recently, a 46-year-old man was pronounced dead on Aug. 18 after being transported from the adult detention center to Inova Fairfax Hospital due to a medical emergency, and a 53-year-old woman died at the hospital on Sept. 7 after becoming ill while being held at the ADC.
The sheriff’s office has documented 22 uses of force so far in 2017, according to Fairfax County Sheriff’s Office public information officer Andrea Ceisler.
“Each case was thoroughly investigated, and the staff person in each case was exonerated,” Ceisler said.
The sheriff’s office gets information on inmates from the Office of the Magistrate, which issues arrest warrants and conducts bail hearings, but their “information does not accurately reflect race, so we are unable to provide that information,” Ceisler says.
“The statements regarding civilian oversight are the opinions of the author,” Kincaid said in a statement about the Fairfax County NAACP’s report card. “I respectfully disagree with those opinions.”
The full Fairfax County NAACP 2017 Criminal Justice Report Card can be found on the voter education section of the organization’s website.