Frustrated by conservative lawmakers who block efforts to reform the criminal justice system, some communities are trying a different approach to ending mass incarceration.
They’re backing progressive candidates for prosecutor -- people who promise to end cash bail, divert drug offenders to treatment programs and renounce the death penalty.
Before he retired three years ago, Jim Hingley spent 25 years as a public defender representing people accused of crimes. Often he thought punishments were too harsh and counter-productive. “With excessive punishment people are taken away from the community for a long time, and when they come back they’ve lost their connection to the community," Hingley argues. "They’ve lost their support network.”
And that, he says, makes them more likely to commit new crimes. Now running for Commonwealth’s Attorney in Albemarle County, Hingely says he would make greater use of alternatives to prison – like drug treatment programs -- and stop asking judges to set bail. “Cash bonds make it harder on people who are poor to get out.”
That means someone who’s innocent could be stuck in jail awaiting trial, and Hingely says they’d probably lose their job. “It’s a job that supports a family, so then the family is thrown back on the resources of the community.”
His opponent, Republican Robert Tracci, admits there are cases where a cash bond might not be needed, but he wants the option of keeping someone locked up – even for a misdemeanor. “For example, stalking – that’s a misdemeanor, and sometimes someone who’s been accused of stalking presents a threat to public safety where short-term detention is necessary,” Tracci says.
Hingely would prefer to use the county’s pre-trial services program, which keeps tabs on people accused of crimes. He also pledges not to ask for capital punishment. “I’ve represented four people who were charged with crimes that could give them the death penalty, and they were all African American men, so I know what the death penalty is like," Hingley says. "It’s a stroke of good fortune if your life is spared, a stroke of bad fortune in your life is not spared.”
There are too many cases, he adds, where people have been wrongly convicted and executed. Tracci, on the other hand, thinks the death penalty might be warranted in cases of mass shooters for example, and he says it can be useful in getting people to plead guilty in exchange for life behind bars.
He questions the very idea that a progressive prosecutor could use his or her office to make changes not approved by state legislators. “Our authority is conferred not by identifying ourselves as transformative agents of change, but on faithful application of the law," Tracci argues. "This job is elected, but it can’t be political. If this movement were a conservative prosecutor movement, where a group of people said, ‘I don’t like the firearms laws, or I don’t like bump stock bans,’ or anything else, we would recognize that there’s something fundamentally flawed about that approach.”
But at the Appeal – a publication focused on mass incarceration – editor Josie Duffy Rice says a Commonwealth’s Attorney has limited time and money, so he or she can’t prosecute everything the legislature’s made illegal. “They have the ability to say, ‘I’m actually not going to charge marijuana cases in my district even if marijuana is illegal.' They have a lot of power and autonomy, and they don’t have much oversight.”
Actually, Virginia’s Supreme Court ruled that judges had the final say on whether to dismiss charges when prosecutors make a request, but in Portsmouth the Commonwealth’s Attorney consulted local judges first, and they agreed to go along with her plans to dismiss all misdemeanor marijuana cases.
Ninety-six communities in Virginia will elect prosecutors in November, and like Chicago, Boston, Durham, Orlando, Houston, Dallas, St. Louis, Denver, San Francisco and Philadelphia, some of them will likely elect progressives to the job.
