Unparalleled Power: Commonwealth’s Attorneys, Voters, and Criminal Justice Reform in Virginia

For the first time in a generation, America has turned a spotlight on its criminal justice system. Events in Virginia and across the country have sparked conversations about racial injustices, mental illness, the failure of the War on Drugs, and the enormous, unnecessary cost of mass incarceration. On the left, both Senator Bernie Sanders and Secretary Hillary Clintonhave made reforms to America’s criminal justice system part of their campaigns for the Democratic nomination for president. On the right, billionaire Charles Koch has pledged tens of millions of dollars to the reform effort, investing in his belief that now is the time for real change.

A December 2015 poll conducted by Prison Fellowship and the Charles Koch Institute found:

• 75 percent of Virginians believe the Commonwealth’s prison system costs too much.
• 75 percent of Virginians believe that prisons ought to prioritize rehabilitation.
• 72 percent of Virginians believe judges should have more freedom to use forms of punishment other than prison.
• By a 3-to-1 margin, 64 percent to 21 percent, Virginians support reinstating a system of parole. (Virginia abolished parole in 1995.)

In Virginia, where the state government spends more than $1 billion a year on corrections, there is significant appetite for reforming the criminal justice system.

Despite the emerging national consensus and the widespread support among Virginians for criminal justice reform, one group has consistently resisted change: Virginia’s prosecutors. For years, Commonwealth’s attorneys (CAs) have opposed commonsense reforms to Virginia’s criminal justice system. Instead, Virginia’s prosecutors have lobbied the General Assembly to ramp up the failed War on Drugs.

CAs have an important self-interest at stake in their fight against criminal justice reform. Virginia’s draconian sentencing laws – from mandatory minimums to the abolition of parole to jury sentencing – fundamentally shift influence over outcomes from judges to prosecutors. Only CAs have the authority to decide how many charges a person will face at trial, and whether those charges will carry mandatory minimum sentences. Because the vast majority of criminal cases are resolved by plea bargains, a prosecutor is more likely to decide a criminal defendant’s sentence than a judge or jury.

With relatively few checks on their authority and the ability to lobby aggressively for changes to laws they don’t like, CAs have unparalleled power over Virginia’s criminal justice system. 

This report examines how uncontested Commonwealth’s attorney elections reinforce the status quo, bypassing public debate and engagement. This report also makes recommendations and offers concrete action steps to change this broken system. Download the report below.