Commonwealth’s Attorney Community Questionnaire

Local and state prosecutors hold extraordinary power in the criminal justice system. How they exercise discretion at each stage of criminal proceedings—from initial charging decisions to the sentences they seek to impose—determines whether the local justice system is fair and just. They also wield significant influence as policymakers and civic leaders, and can work with legislators, judges, public defenders, law enforcement, and other community stakeholders to advance justice through policy reforms.

Virginians are overwhelmingly in favor of criminal justice reform and recognize that it operates in unfair ways and has disparate impacts on citizens depending on their socioeconomic status and race. Of particular concern is the imposition of jail sentences for drug-related crimes, low-level misdemeanor and felony offenses and for people with mental illness.

This questionnaire seeks to evaluate whether candidates for Commonwealth’s Attorney are prepared to enact policies that will address the key drivers of mass incarceration.

Policies Aimed at Reducing Mass Incarceration

QUESTION: Do you believe that mass incarceration is a problem in America? In Virginia?

QUESTION: If so, do you believe that the Commonwealth’s Attorney’s office has contributed to the rise of mass incarceration?

QUESTION: What will you do as Commonwealth’s Attorney to work to reverse mass incarceration?

Limit the Use of Money Bail

The Attorney General of Virginia and other Virginia Commonwealth’s Attorneys have recognized that continued use of unjust cash bail policies lead to people being incarcerated merely because of an inability to raise funds to post bond and have, consequently, pledged to stop seeking cash bonds for criminal defendants and/or called for reform to the money bail system.

QUESTION: What do you believe to be the purpose underlying a cash bond system?

QUESTION: Will your office commit to taking a default position of release on recognizance for all defendants, unless it has been determined that they pose a specific, clear and credible threat to the community or that there is a high likelihood that they will not return to court in an attempt to evade prosecution?

QUESTION: Will you adopt a presumption of pretrial release, without conditions, for misdemeanors and low-level felonies?

QUESTION: Will you limit the use of cash bonds to only those cases in which it has been clearly demonstrated that the defendant poses a significant flight risk to try to evade prosecution?

QUESTION: Where you seek a cash bond to incentivize a defendant who has been deemed a flight risk to return to court, will you commit to undertaking a review of a defendant’s ability to pay and ensuring that bond will be set at a dollar amount that the defendant is capable of posting? Will you commit to not opposing requests to modify bond amounts where the defendant remains detained because s/he is unable to raise money for bail?

QUESTION: Will you commit to not seeking any level of pretrial supervision or detention more restrictive than that recommended by the Virginia Pretrial Risk Assessment Instrument in a given case?

QUESTION: Do you agree that pre-trial detention should be extremely limited and used only in rare circumstances? Will you conduct a good faith assessment of the dangerousness of a defendant and seek pre-trial detention only where the defendant clearly poses a risk of unacceptable harm? How do you define “unacceptable harm”?

QUESTION:    Will you support legislation or litigation aimed at reforming unjust money bail policies? What do you believe should be the major components of bail reform, if any?


Keep People Out of Jail for Drug-Related Offenses

Years of experience with ineffective drug laws and the latest medical research on addiction suggest that treating drug use as a public health issue, as opposed to a criminal justice issue, is a more effective approach to reducing harm. Virginians support decriminalization of marijuana and at least one Commonwealth’s Attorney has pledged to stop charging citizens with marijuana possession.

QUESTION: Do you believe that by ceasing to prosecute marijuana possession cases, the Commonwealth’s Attorney can reduce the number of people involved with the criminal justice system without an increased risk of danger to the community? What about possession of other drugs? Why or why not?

QUESTION:    Will you agree to adopt a presumption of declining to prosecute cases of marijuana possession or misdemeanor distribution or possession with intent to distribute marijuana?

QUESTION: Will you move to nolle prosequi all marijuana cases where you have declined prosecution?

QUESTION: Will you support future legislative attempts to decriminalize marijuana? Why or why not?

QUESTION: Will you agree to adopt a presumption of declining to prosecute simple possession of drugs other than marijuana?

QUESTION:    Will you presumptively charge simple possession of drugs rather than possession with the intent to distribute in cases where a defendant was not alleged to have sold, to have tried to sell or to have facilitated the sale of drugs?

QUESTION:    In the absence of sufficient evidence of intent to cause death, will you commit to not charging drug overdose cases as homicides?

Adopt Policies to Avoid the Criminalization of Poverty

Local criminal justice systems disproportionately harm people living in poverty. Whether through the imposition of fines and fees as a condition to resolving cases or through laws that effectively criminalize homelessness, local actors have imposed a poverty penalty on many within the community.

QUESTION:    Will you ensure that no defendant is found ineligible for bail, a plea agreement, an appropriate sentence, or entrance to a diversionary program based on an inability to pay?

QUESTION:    Will you oppose incarceration based upon the failure to pay fines, fees or child-support unless there is uncontroverted proof the individual is able but willfully refusing to pay?

QUESTION:    Do you believe that an inability to pay court costs or fines is a valid reason to refuse to terminate probation or end supervised release for someone who is otherwise compliant with supervision conditions?

QUESTION:    Will you establish a strong presumption against prosecuting sit-sleep-lie laws, public urination violations, and other conduct that is a byproduct of homelessness or poverty?

QUESTION:    What about interdiction or “habitual drunkard” laws?

QUESTION: Will you decline to prosecute any cases of driving with a suspended license where the person’s driver’s license was suspended as a result of failure to pay fees?


Policies Aimed at Reducing Excessive Punishments

Treat Kids Like Kids

Recognizing that children’s brains continue developing until around the age of 25 and that research supports their enhanced capacity for rehabilitation, children should not be prosecuted in adult court and they should not be given punishments that preclude the opportunity for redemption.

QUESTION:    Will you establish a strong presumption against prosecuting school suspension or expulsion cases where there is no threat or use of force resulting in serious physical harm?

QUESTION:    Will you establish a presumption against recommending the transfer of juveniles to adult court unless required by law and commit to substantially reducing the number of juvenile cases adjudicated in adult court?

QUESTION:    Will you agree to never transfer a child under the age of 16 to adult court? Do you support legislation raising the minimum age for transfer/certification to 16?

QUESTION:    Will you decline to seek life without the possibility of parole for any person under 18 at the time of the offense?

QUESTION:    Will you publicly support changing any and all laws that require children to be prosecuted as adults, including laws that raise the age of adult criminal responsibility?

Do Not Seek the Death Penalty

The use of the death penalty has become increasingly isolated to a handful of jurisdictions within the United States. There is mounting evidence that the death penalty is fraught with error, provides no additional public safety benefit over other available sentences, and is routinely used against individuals with diminished culpability, including persons with intellectual disabilities and severe mental illness, youthful offenders under the age of 21, and those who have experienced extreme childhood trauma.

QUESTION:    In any capital-eligible case, will you promise to exercise your discretion to seek sentences other than death?

QUESTION:    Do you believe that it is appropriate to seek the death penalty in a death-eligible case in order to incentivize a plea to a life sentence?

Promote Proportionate Sentencing and Provide Pathways to Second Chances

People are more than their worst acts, and even people who commit the most serious offenses can change profoundly over time. To recognize the potential for growth in all people, it is important for locally elected prosecutors to provide individualized consideration to the character and background of each person and to the circumstances surrounding the commission of the offense in requesting a sentence. It also is critical for elected prosecutors to promote opportunities for release, through parole or clemency, and to help remove barriers to reentering society for those who are released from incarceration.  

QUESTION:    Will you commit to setting the default maximum sentence for a given charge at the low end of the applicable guidelines range, requiring supervisor approval if a prosecutor is to request a sentence above the threshold?

QUESTION:    Will you commit to reducing the average length of probation recommended by prosecutors for each individual charge?

QUESTION:    Will you commit to setting a default maximum length of one year of probation for all charges and require supervisor approval if a prosecutor is to request a sentence above the threshold?

QUESTION:    When faced with a defendant with mental health or substance abuse issues, will you agree to a presumption of directing them to pre-trial diversion programs rather than placing them in general probation with additional conditions?

QUESTION:    Will you agree to not request termination of probation for a defendant who is generally compliant but has incurred technical probation violations?

QUESTION:    Will you pledge to establish an office policy against increasing or threatening to increase the number or severity of charges in order to secure more favorable plea dispositions or waivers of rights?

QUESTION:    Will you publicly oppose any proposed legislation that would create new mandatory minimum sentences or lengthen existing minimum sentences?

QUESTION:    Will you institute procedures to dismiss outstanding warrants for nonviolent offenses after an 18-month period of inactivity, except for where an individualized determination has been made that the offender is attempting to evade process?

QUESTION:    Will you pledge to support second chances, even for those who commit serious offenses,who demonstrate outstanding growth and maturity during their incarceration?

QUESTION: Will you pledge to support legislation aimed at reinstating parole in Virginia?

QUESTION: Will you pledge not to seek civil asset forfeiture unless there is at least first an accompanying conviction directly related to the asset to be seized?

Diversion

Pre-trial diversion creates opportunities for people charged with an offense to get the support and education necessary for rehabilitation and allows successful individuals to avoid the collateral consequences of a conviction, which can be detrimental to future employment, housing, and education. Pre-trial diversion should be available to anyone eligible to participate in the program, irrespective of an individual’s ability to pay a fine or fee.

QUESTION:    Do you believe that society benefits from having a criminal case result in a conviction for a defendant? Why or why not?

QUESTION:    If so, do those benefits apply to people charged with drug or other low-level offenses or people whose crimes arise from untreated mental health issues? Why or why not?

QUESTION:    Will you establish and support pre-trial diversion programs for those charged with low-level offenses that do not pose a risk to public safety, such as low-level theft?

QUESTION:    Will you implement pre-charge diversion programs to allow for people with mental health issues to receive community-based treatment rather than jail or prison sentences?

QUESTION:    Will you implement pre-charge or pre-plea diversion programs to allow for people whose criminal involvement arises from issues related to drug addiction to receive community-based treatment rather than jail or prison sentences? Are you willing to extend that diversion to people charged with distribution-related drug crimes in addition to possessory offenses?

QUESTION:    For people in drug treatment, do you recognize that relapse is a part of the treatment process and agree to not charge people in drug treatment with new crimes for using or possessing drugs or to seek incarceration for someone in drug treatment who has tested positive for new drug use?

QUESTION:    Will you commit to diverting defendants prior to charging, if possible, or else prior to conviction in order to allow them to receive treatment without getting convicted of a crime?

Other Policies

Discovery

QUESTION: Do you believe that a defendant is entitled to see all non-work product documents and evidence in the government’s possession as soon as it becomes available (subject to appropriate redactions of identifying information, where necessary)?

QUESTION: Do you agree that disclosure of discoverable material should never be delayed for strategic purposes?

QUESTION: Will you provide either paper or electronic copies of all discoverable case-related documents to the defense?

QUESTION: Do you support the 2018 amendments to the discovery rules proposed by the Virginia Supreme Court? Why or why not?

QUESTION: Will you implement the Virginia Supreme Court’s proposed discovery plan immediately rather than waiting for it to be formally implemented?

QUESTION: Do you agree that evidence that a police officer involved in a case has been sanctioned for misconduct, excessive force, or failure to tell the truth in a police report or official proceeding is Brady material that should be disclosed to the defense?

Immigration

QUESTION: Do you believe that it is appropriate to consider the potential collateral immigration consequences of a criminal conviction when deciding the appropriate resolution of a case?

QUESTION: Will you try to work with defense attorneys to craft immigration-neutral resolutions to cases, where possible?

QUESTION: Will you agree to not communicate with or assist ICE in identifying or apprehending witnesses or defendants?

Other Procedural Issues

QUESTION: Will you commit to screening cases for declination, diversion, and charging prior to filing, rather than merely relying on an officer’s initial charging recommendation?

QUESTION:    Do you believe that it is appropriate to extend a pre-preliminary-hearing plea offer to a defendant that is revoked and not re-extended if the defendant decides to proceed with the hearing? Why or why not?

QUESTION:    For jury-eligible offenses, will you agree to not oppose a defendant’s decision to either opt for a jury or a bench trial?

QUESTION: Will you agree to allow defendants to retain their appellate rights when pleading guilty? If not, why not?