21 Principles of the 21st Century Prosecutor

Fair and Just Prosecution is an organization that brings “newly-elected local prosecutors” together to promote “a justice system grounded in fairness, equity, compassion, and fiscal responsibility.” With the assistance of the Brennan Center for Justice and The Justice Collaborative, FJP recently published 21 Principles For The 21st Century Prosecutor, a guidebook setting forth “practical steps prosecutors can take to transform their offices, and collectively, their profession,” so as to “roll back over-incarceration” and “improve the overall fairness and efficacy of the criminal justice system.”

The 21 Principles For the 21st Century Prosecutor provide a detailed roadmap for how to modernize the prosecution of criminal cases in the Commonwealth of Virginia. All of the principles are applicable in our state.

Below is a list of the 21 Principles. The text included here is largely verbatim, although some portions have been edited to fit the unique context of Virginia’s criminal justice system.

The 21 Principles also represent the “grading criteria” for CA Difference’s “CA Report Cards,” which we will publish for each contested race we’re following in 2019.

Reducing Incarceration

1. Make Diversion the Rule
2. Charge with Restraint and Plea Bargain Fairly
3. Move Toward Ending Cash Bail
4. Encourage the Treatment (Not Criminalization) of Mental Illness
5. Encourage the Treatment (Not Criminalization) of Drug Addiction
6. Treat Kids Like Kids
7. Minimize Misdemeanors
8. Account for Consequences to Immigrants
9. Promote Restorative Justice
10. Shrink Probation and Parole

Increasing Fairness

11. Change Office Culture and Practice
12. Address Racial Disparity
13. Create Effective Conviction Review
14. Broaden Discovery
15. Hold Police Accountable
16. End the Poverty Trap of Fines and Fees
17. Expunge and Seal Criminal Records
18. Play Fair with Forensic Evidence
19. Work to End the Death Penalty
20. Calculate the Cost of Incarceration
21. Employ the Language of Respect


How is Your Local Commonwealth’s Attorney Stacking Up?


Reducing Incarceration

Overview: Well-designed programs that divert people from jail or prison, or from the justice system entirely, can conserve resources, reduce reoffending, and diminish the collateral harms of criminal prosecution. These programs keep people in the community instead of locked up. When diversion precedes charging, participants can stay out of the criminal justice system entirely. After charging or conviction, diversion similarly provides an alternative to incarceration.”

1. Make Diversion the Rule

Best practices in Virginia:

■■ Offer diversion programs to people facing felony as well as misdemeanor charges. “Working with people who commit more serious offenses may offer the greatest payoff in terms of reducing recidivism.”

■■ “If a case should be dismissed outright, don’t route it to diversion instead.”

■■ “Carefully consider which program conditions (like abstaining from marijuana use) are necessary to address the underlying causes of misconduct and keep the community safe. 

■■ In programs like Drug Treatment Court, avoid charging participants for relapses, even if there is sufficient evidence for criminal charges. Other responses to non-compliance (like ankle bracelets and jail time) should only be imposed to advance purposes of rehabilitation or public safety.

■■ “Ensure that the program matches the risk and needs of the individual For example, people who are lower risk should be placed in a lighter touch program (or no program at all).”

■■ “Don’t require defendants to admit guilt to participate if an admission isn’t needed to promote the goals of the program.”


Overview: Prosecutors have nearly unchecked authority to set priorities and choose the criminal charges they file, with enormous leverage over guilty pleas and the final disposition of cases. Too often, prosecutors have historically sought sentences that penalize people who exercise their right to trial, and state and federal prosecutors’ associations have lobbied state legislatures and Congress for harsher penalties.” 

2. Charge with Restraint; Plea Bargain Fairly

Best practices in Virginia:

■■ Don’t prosecute tenuous cases: if the evidence does not convincingly support all elements of the offense, dismiss or decline to prosecute the charges. 

■■ Don’t make a plea offer if you aren’t sure you can prove the case beyond a reasonable doubt.

■■ Don’t punish defendants for exercising their rights: Don’t condition plea negotiations on the waiver of preliminary hearing. Don’t withdraw plea offers if a defendant files a motion requesting expanded discovery rights or alleging constitutional violations. Don’t treat defendants more harshly simply because they requested bond or challenged the forfeiture of their property.

■■ Don’t require a defendant to waive a statutory right to appeal to circuit court in exchange for a plea deal in the General District Court.

■■ Will a conviction result in deportation or other immigration consequences? This is a mitigating fact that should weigh in favor of leniency.

■■ Charging decisions shouldn’t be used as a tool of coercion to pressure defendants to plead guilty. Just because the law permits a more serious charge (or the charging of many counts) doesn’t mean more serious charges or multiple counts are required. 

■■ “Don’t file the maximum possible charge as a matter of course.” Don’t maximize counts of an indictment just because the law permits many counts to be charged. “Adopt office-wide policies making clear that charges should reflect the facts and circumstances of each case and be designed to achieve a just result.”

■■ Don’t threaten to seek the death penalty, charge or threaten to charge life without parole or serious sentencing enhancements (e.g. mandatory minimums), or seek to transfer a case from juvenile to adult court as a way to leverage a guilty plea.

■■ In making sentencing recommendations, consider the systemic or socioeconomic factors that may have disadvantaged the defendant and played a part in bringing him or her before the court.

■■ Support legislation to reduce sentence lengths and eliminate mandatory minimum sentences and three-strike laws.


“Overview: Most people in jail in the United States are there because they can’t afford bail. This starting point serves no public safety purpose, effectively punishes people for being poor, and pressures them to plead guilty. It costs taxpayers billions of dollars each year, enriching the bail bond industry.”

3. End Cash Bail

Best practices in Virginia:

■■ In general, recommend release for defendants, including those charged with felonies, unless there is a substantial risk of harm to an individual or the community. 

■■ Encourage the presence of court-appointed counsel at initial advisements/arraignments, so that defendants held without bond or with a bond amount they can’t afford don’t have to wait an additional day or longer to receive judicial review of their detention status.

■■ Support pretrial services that help people remember to return to court (for example, notification by phone or text). If a defendant has a record of failing to appear in court, consider seeking weekly calls, check-in appointments, or curfews rather than cash bail or detention.

 

■■ Publicly support the elimination of money bail. Educate the public, lawmakers, and local criminal justice leaders about the perverse effects of a system in which detention decisions turn on ability to pay rather than public safety.

■■ Do not seek pretrial detention because a defendant missed a court date if he or she subsequently reports to court. 

■■ Don’t seek to detain defendants released on bond simply because they have used alcohol or drugs.

 

“Overview: People who struggle with mental illness wind up in the criminal justice system more than they should. As a result, America’s largest psychiatric facilities are not hospitals, but jails and prisons. People with mental illness are less likely to make bail and more likely to face longer sentences. Upon release, they are often sent back into the community without a treatment plan or the prospect of good healthcare, and too often find themselves cycling back into the criminal justice system.”

4. Treat mental illness, don’t criminalize it

Best practices in Virginia:

■■ “Encourage the use of public health models as a starting point for developing responses to individuals in crisis and promote community-based services to stabilize people who otherwise end up in jail.”

■■ Mandate crisis-intervention training of law enforcement to de-escalate situations involving individuals with mental illness and reduce the likelihood of use of force or arrest as a response.

 

■■ Divert “individuals who struggle with mental illness to treatment instead of making an arrest that can lead to incarceration rather than help. Screen cases before charging to identify individuals in need of mental health services and support.”

■■ Don’t seek supervision through the justice system simply ensure a person receives or continues to receive services.


“Overview: The ‘war on drugs’ has failed to curb drug use or make communities safer. Instead, it has resulted in destructive policing and prosecution, disproportionately affecting communities of color. It’s time to move toward decriminalizing drug addiction.”

5. Treat drug addiction; don’t criminalize it

 Best practices in Virginia:

■■ “Don’t prosecute low-level marijuana possession, and don’t make exceptions because of someone’s criminal record.”

■■ Support legislation legalize marijuana and reclassify other simple drug possession as a misdemeanor or civil violation.

■■ Don’t prosecute individuals for homicide when they share drugs that cause an overdose unless there was a specific intent to cause harm or death.

 

■■ Treat use and relapse as a part of recovery. 

■■ Support medically assisted drug treatment in jails.

■■ Support needle exchanges and safe consumption sites.


“Overview: The adolescent brain differs from the adult brain in ways that increase the likelihood of risky and reckless behavior. Neurological development continues until around the age of 25, and most young people who commit crimes don’t continue to do so in adulthood. Long-term outcomes for teenagers and young adults are substantially better when they have as little contact with the criminal justice system as possible, or when their cases remain in juvenile court. Prosecutors have enormous power over how teenagers and young adults are treated in the justice system. They influence decisions about whether to bring charges, what charges to bring, whether to transfer a child to the adult system, and whether to ask that a child be incarcerated.”

6. Treat Kids Like Kids

Best practices in Virginia:

■■ “Do not prosecute kids for typical adolescent behavior such as fist fights, smoking marijuana, disorderly conduct, or other infractions at school that don’t result in serious physical harm.”

■■ Don’t detain teenagers while their cases are pending. “If they can’t safely stay home, promote alternatives to detention such as community day supervision and treatment centers.”

■■ “After conviction, seek alternatives to incarceration for teenagers whenever possible.”

■■ “Advocate for diversion programs and specialized courts that address the needs of young adults.”

■■ Do not permit minors to be interrogated without the presence and advice of counsel (and parents, if appropriate). 

 

■■ “Recognize that young people accused of crimes often have experienced trauma, and may lack the ability to express remorse, especially in the days and weeks immediately after an offense. Take that into account in charging, plea bargaining, and sentencing.”

■■ “Recognize that implicit racial bias often affects perceptions of adolescent culpability, predictions about re-offending, and recommendations for punishment or treatment.”

■■ Don’t transfer any children under the age of 16 to be tried as adults. Try children over the age of 16 as adults only in very limited circumstances (e.g. some premeditated murder).

■■ Don’t seek lengthy sentences for children tried in adult court, and don’t challenge re-sentencing of juveniles who received unconstitutional sentences.


“Overview: Misdemeanor charges make up approximately 80 percent of state and local dockets. The majority are for offenses like trespassing, loitering, prostitution, and drug possession. Arrests and prosecutions for misdemeanors and violations can significantly affect people’s lives even when they result in short sentences or probation, costing people their employment, housing, student loans, immigration status, and even their children, and contributing to a cycle of incarceration and poverty that is hard to break.”

Best practices in Virginia:

■■ “In general, do not charge misdemeanors, such as trespassing or loitering, which are associated with poverty, mental illness, and homelessness.”

■■ “In general, do not charge sex workers or clients when both parties are over 18 and consent. Don’t prosecute underage trafficking victims. Support efforts to decriminalize sex work and instead marshal resources to prosecute trafficking.”

■■ “Where it’s not possible or doesn’t make sense to decline prosecution, develop cite-and- release programs to keep people out of jail.”

■■ “Promote systems changes and procedures to ensure that defendants facing misdemeanors—including possession of marijuana—have competent lawyers and the cases go before judges.”

7. Minimize Misdemeanors


“Overview: Criminal charges and convictions can trigger detention and deportation proceedings for people who are not U.S. citizens, subjecting them to far greater collateral punishments and taking them away from their families. Being jailed before trial also increases the likelihood of being detained and deported by federal immigration officials. These threats to immigrants discourage the reporting of crimes, making communities less safe.” 

8. Account for Consequences to Immigrants

 

Best practices in Virginia: 

■■ “Make sure prosecutors and supervisors understand the immigration consequences of plea deals and defendants receive and understand this information.”

■■ “In plea discussions and sentencing recommendations, consider the immigration consequences of a conviction. When two similarly weighted charges have different immigration consequences, choose the immigration-neutral charge.”

■■ “Support and streamline processes for vacating convictions when an immigrant who pled guilty was unaware of the immigration consequences or if there are other equitable grounds to do so.”


■■ “Work with local authorities to protect against ICE enforcement in courthouses and with probation departments to prevent ICE arrests at probation offices. Alert groups that represent immigrants if ICE seeks to question or detain individuals who come to court.”

■■ “Protect immigrants who serve as witnesses and report crimes.”

■■ “Speak out for protecting the rights of immigrants and oppose policies that entangle local law enforcement in federal immigration enforcement.”


“Overview: Restorative justice is a community-based approach to responding to the harm that crime causes. In a group setting, individuals facing charges talk to the people they hurt, sharing stories and working toward accountability, repair, and rehabilitation. Restorative practices can be part of the criminal court process or a substitute for it. Research shows that crime victims often do not feel that prosecution and sentencing serve them well; restorative justice can help address their concerns. These programs also have a consistent track record of achieving lower rates of recidivism than traditional penalties, including for serious offenses.”

9. Promote Restorative Justice

Best practices in Virginia

■■ “Learn about and visit best-practice restorative justice programs.”

■■ “Establish restorative justice programs, or if they already exist in the community, refer cases to them and treat the outcome as the resolution of the charges.”


■■ Don’t exclude participants because of their criminal records.

■■ “Ensure that statements made during the restorative justice process can’t be used against the defendant if the case returns to court.”

■■ “Consider restorative justice for adult and juvenile misdemeanor and felony offenses, including cases involving violence and injury.


“Overview: The number of people under some form of probation or parole in the United States is about 5 million. This number is far too high, and periods of supervision are far too long. Supervision increases the likelihood that people who are otherwise at low risk of reoffending will end up incarcerated for technical violations that have little to do with public safety. The majority of violations occur within the first year, suggesting that supervision beyond that point serves little to no rehabilitative purpose. Some states have shortened supervision periods with no increase in crime or recidivism.”

10. Shrink Probation and Parole

Best practices in Virginia:

■■ “Limit probationary terms after prison to one year, unless there is a compelling reason for a longer term.”

■■ If longer terms are imposed at the outset, support early termination of probation upon compliance with the terms of supervision for one year.


■■ “Limit supervision after local jail sentences to six months.”

■■ “Don’t treat the use of marijuana or alcohol as a violation of supervision.”

■■ “Advocate with parole and probation departments for the use of graduated sanctions for violations. . . . Don’t advocate sending people back to jail for technical violations of their supervision.”


Increasing Fairness

“Overview: Prosecutors are the gatekeepers of America’s criminal justice system. The policies and incentives they put into place, and the dynamics inside their offices, have a tremendous effect on the pursuit of justice in their community and the system as a whole. Prosecutors can design (or redesign) key features of the system to make it more accountable, equitable, and just.”

Best practices in Virginia:

 ■■ Work with other agencies to gather and share data on charging, plea dispositions, and sentencing (including racial disparity), findings of prosecutorial misconduct, pretrial detention rates resulting from an inability to pay bail, diversion participation and completion, charging children as adults, and other outcomes that will help your office achieve more just results.

■■ Adopt performance standards that reflect community values. Prosecutors should encourage desired outcomes by adopting metrics like reducing incarceration, pretrial detention, and recidivism. 

■■ Make data available to the public so you can be held accountable for the performance of the office.

■■ Conduct mandatory trainings on issues like implicit bias, debunked forensic methods, false confessions, and witness identification.

■■ Hire a diverse staff across all levels of seniority. Some research shows that increasing the number of minority prosecutors in an office decreases racial sentencing disparities.

■■ “Set up programs and opportunities for prosecutors to meet with formerly incarcerated individuals and their families and with people who have been exonerated (and do so early in prosecutors’ careers). Prosecutors should also be expected to visit prisons and jails where the people they prosecute are held.”

11. Change Office Culture and Practice


“Overview: Extensive evidence shows that racial disparity exists at every stage of the justice system. Possible causes include over-policing of communities of color, and overt and implicit bias. Prosecutors must confront these issues by looking closely at the relevant data and working to promote equity and a healthier, more cooperative relationship with the communities they serve.”

Best practices in Virginia:

■■ “Publicly commit to reducing racial and ethnic disparities that arise from prosecutorial practices. Engage the community and the office in a reflective conversation about the role of prosecutors in racial inequity Implicit bias training should be part of this process.”

■■ “Track and release race and gender data for actions including bail requests, charging children as adults, other charging decisions, plea bargains, sentencing recommendations, and parole board recommendations. Permit an outside source to review the data, evaluate disparities, and make recommendations to reduce them.”

■■ “Make it part of the office’s mission to reduce racial disparities that arise from police practices. Work with police and other agencies to meaningfully compare and address racial disparity at different points in the system If you meet resistance, propel changes to police practice by declining to proceed with cases that are clouded by a pattern of racist conduct.”

12.Address Racial Disparity


“Overview: Conviction Review Units (CRUs, also called Conviction Integrity Units) scrutinize old cases to determine whether the outcomes were tainted by unjust practices, faulty evidence, or bias. CRUs provide helpful mechanisms for revisiting cases which an office previously believed to be justly prosecuted but which, in fact, may be materially flawed. Since they were first created in the early 2000s, CRUs have expanded from reviewing claims of actual innocence to reviewing violations of due process and corrupt law enforcement practices. Some offices are considering extending these principles to the review of past excessive sentences.”

Best practices in Virginia:

■■ “Create a CRU (or another conviction review process) if your office does not already have one. Small to mid-sized offices may consider partnering with a local law school, innocence project or law firm to expand capacity. Consider extending the CRU’s mandate beyond claims of actual innocence by also scrutinizing cases in which a serious violation of a defendant’s rights or other miscarriages of justice may have contributed to his or her conviction.”

■■ “Review convictions that relied on discredited forensic methods like bite-marks or questionable diagnoses of shaken baby syndrome.”

■■ “Support efforts to provide compensation for the wrongfully convicted, restoration of rights, and expungement of wrongful convictions.”

■■ “Use the CRU as a tool for identifying and addressing the root causes of flawed prosecutions, such as Brady violations or reliance on discredited science, and incorporate lessons learned into officewide training and policy changes.”

13. Create Effective Conviction Review


“Overview: Discovery — the process for sharing information with the defense — is essential to the fair administration of justice. Without the information the state gathers through its police powers, defendants cannot make informed decisions and defense attorneys cannot provide effective counsel. Studies have shown that withholding evidence results in disturbingly high levels of the miscarriage of justice. When prosecutors take an expansive approach to discovery by making early and broad disclosures, they enhance the prompt and fair resolution of cases and increase the accountability of law enforcement.“

Best practices in Virginia:

■■ Establish an open-file policy, disclosing all relevant evidence to the defense.

■■ Protect witness safety and privacy by redacting materials, as opposed to refusing to turn them over. 

■■ Ensure discovery procedures allow defendants to obtain discovery efficiently, including by using technology (photocopiers, scanners, electronic storage, etc).

■■ Share the police report and other materials in the government’s possession as soon as possible after charges are filed. As more evidence is gathered, it should be disclosed when it becomes available, before plea discussions and in ample time to prepare for trial.

■■ “Form a committee to decide how to collect and disseminate to the defense and courts findings of misconduct in police personnel files. Consider creating a database that all prosecutors in the office can easily access and that includes information on police officers who have been found to have lied in the course of their jobs, committed civil rights violations, or used excessive force. . . .Designate an ethics officer to advise staff, provide training, and address allegations of misconduct in the office.”

14. Broaden Discovery


“Overview: When an officer is credibly accused of using excessive force or engaging in misconduct, the allegations must be thoroughly investigated. The role of prosecutors in addressing these cases is complicated by the close working relationship they have with local police departments, which can lead to conflicts of interest or the appearance of such conflicts, undermining public confidence. Investigations and prosecutions of police officers should be safeguarded by procedures focused on ensuring independence, impartiality, and transparency.”

Best practices in Virginia:

■■ “If feasible, create an independent unit for internal investigations staffed with senior prosecutors and experienced investigators. The unit should report directly to the Commonwealth’s Attorney or his or her chief deputy. The investigators should have no daily contact with, or reliance on, the local law enforcement agency under investigation.”

■■ “Work with local law enforcement on a plan of action in the case of officer-involved shootings and misconduct allegations. The plan should include immediate notification of the DA’s office, an opportunity for personnel from the office to go to the scene, and timely sharing of information and investigation of the misconduct by an entity other than the employing agency.”

■■ Consider creating an external advisory board to make recommendations before a final charging decision. If permitted, release the record of a grand jury proceeding when there is no indictment. 

■■ “Make public all policies and protocols related to investigations of law enforcement misconduct. Report investigations, prosecutions, and dispositions regarding police-involved incidents annually.”

■■ “Support a second-look review by the state Attorney General’s office or an independent prosecutor when your investigation does not result in a decision to file criminal charges.”

■■ “Support changes to state law if needed for independent and effective investigations, including reforms that ensure that police are not investigated by the agency that employs them.”

15. Hold Police Accountable


Overview: When court fines and costs “are levied without regard to a person’s ability to pay, they can trap poor defendants in a cycle of incarceration and debt.” Fines and fees “are also unfair: a $200 fine or fee can pose an annoyance for an affluent person and a financial calamity for an indigent one. While debtors’ prisons are illegal, they effectively exist when people are sent to jail, or otherwise stuck in the criminal justice system, because they can’t afford to pay fines or fees. And pursuing unpaid debt may cost the state more than the revenue it brings in.”

Best practices in Virginia:

■■ “Speak out about the injustices caused by fines and fees and support efforts to fund courts in a way that reduces reliance on revenue from fines and fees.”

■■ “Advocate for assessing fees and fines on a sliding scale based on income and assets, taking into account debts and financial obligations such as child support and health care costs.”

■■ “Support reasonable payment plans, and oppose requiring people to return to court again and again because of incomplete payments. Advocate against excessive late fees, payment plan fees, collection fees, and interest payments.”

■■ Advocate for the elimination of driver’s license revocations and suspensions for nonpayment of fines and fees. Work with courts to reinstate licenses and dismiss charges against people arrested for driving on a suspended license when the suspension is for unpaid fines and fees.

■■ Eliminate fines and fees in cases involving children and teenagers under the age of 18.

■■ “Support defense motions to reduce or waive fines and fees based on indigency. Don’t ask to jail people because they can’t pay their fines or fees and eliminate the use of arrest warrants for non-payment.”

■■ Eliminate fees for diversion programs. 

■■ Oppose continuing or extending probation solely because of unpaid fines and fees.

16. End the Poverty Trap of Fines and Fees


“Overview: About 70 million Americans have a criminal record, the same number as have a college education. A criminal record makes it harder to get a job or find housing, accounting for high rates of homelessness among people leaving prison. People may lose access to public benefits and become ineligible to receive federal loans. State laws may bar them from voting or obtaining professional and occupational licenses. Research shows that the stigma of having a record is worse for minority job applicants than for white ones, which means racial disparity in the system continues to affect people long after their sentences are served.”

Best practices in Virginia:

■■ Support petitions for expungement or sealing of records. Support automated sealing or expungement for arrest records that did not lead to charges or convictions. Support efforts to eliminate restrictions on expungement and sealing, such as long waiting periods.

■■ “Host workshops for job trainings, resumé programs, and mock interviews. Encourage employers to hire people with criminal records.”

■■ “Support efforts to ensure accuracy of criminal records, laws that require private databases to regularly remove expunged or sealed records, and ban-the-box legislation that bars employers and housing and other social service providers from asking early in the application process about criminal records.”

17. Expunge and Seal Criminal Records


“Overview: The power of forensic science is unmistakable. Advances in science and technology have helped solve crimes and exonerate people who were wrongfully convicted. The continued use of unreliable and misleading forensic evidence, however, imperils the integrity of the criminal justice system. It’s critical for prosecutors to promote efforts that strengthen the reliability of forensic evidence and inform courts and jurors of its limitations.” 

Best practices in Virginia:

■■ Stop using scientifically invalid evidence (e.g. comparison of bullet leads, fire and bloodstain patterns, bite marks, shoe prints, and hair matching).

■■ Critically and continually examine emerging scientific literature, which may also call old methods into question, and train staff about these changes.

■■ “Train prosecutors to understand the validity of the proffered evidence and expert testimony. Don’t let an expert declare a “match” to a degree of certainty that’s not supportable. Juries overvalue such testimony.”

18. Play Fair with Forensic Evidence


“Overview: Countless studies have shown that the death penalty is fraught with error, provides no more public safety benefit than other sentences, and is routinely imposed on people with diminished culpability, including the intellectually disabled and mentally ill, teenagers, and people who have experienced extreme childhood trauma. Studies also show that the death penalty is applied in a racially discriminatory manner. It is expensive and puts victims through decades of litigation and uncertainty. And it has become increasingly concentrated in a small number of jurisdictions: two percent of counties are responsible for the majority of death sentences nationwide. This means that whether a killing takes place on one side or the other of a county line often determines whether someone will be executed for it.”

Best practices in Virginia:

■■ Do not charge or threaten to charge capital murder under any circumstances.

■■ Don’t threaten to seek the death penalty in order to coerce a guilty plea.

■■ Oppose legislation to expand or expedite the death penalty and support repeal of the death-penalty.

19. Work to End the Death Penalty


“Overview: Reducing spending on prison has bipartisan support. The incentives to cut costs are often misaligned, however. . . . To change the dynamic, it’s important to inform the public about the overall cost of incarceration.”

Best practices in Virginia:

■■ “Calculate the cost-savings of alternatives to incarceration and factor it into plea offers and sentencing recommendations.”

■■ “Calculate the expected cost of incarceration for a proposed jail or prison sentence and announce it before sentencing, so judges and the public can consider it.”

■■ “Report on the annual cost of incarceration and the office’s efforts to reduce it.”

■■ “Work with legislators to reduce corrections budgets” to match “declining prison and jail populations. Advocate for the reinvestment of savings in crime prevention, improved law enforcement, recidivism reduction, and improving the lives of people and communities affected by incarceration.”

20. Calculate the Cost of Incarceration


“Overview: Commonly used terms like convict, ex-convict, felon, and inmate are dehumanizing. They reduce people to their criminal status and perpetuate the stigma of criminal convictions, promoting negative stereotypes that inhibit reform and impede rehabilitation and re-entry. Language affects perception; it also evolves. Once-established terms are abandoned as offensive (like “coloreds” or “illegals”) while terms that once seemed unwieldy (“people of color”) become familiar. The words we use also affect policy: mass incarceration has stemmed in part from harsh law-and-order rhetoric.” 

Best practices in Virginia:

■■ “When possible, in written materials and in representing the office, use phrases that convey information about criminal status without dehumanizing. Examples include ‘person convicted of a misdemeanor [or felony],’ ‘incarcerated [or formerly incarcerated] person,’ ‘people behind bars,’ and ‘person with a criminal record.’”

■■ Try to avoid terms like convict, inmate, and parolee, which reduce a person to his or her criminal status, and terms like rapist and drug dealer, which reduce a person to a particular act.

■■ “In general, a person charged with a crime (but not convicted) should not be called an “offender.” The word “defendant” is a good substitute. Try to honor people’s wishes about the words used to describe them.”

■■ “In cases involving children and teenagers, refer to them and their families by their names and avoid dehumanizing references such as ‘minor’ or ‘juvenile,’ which have become synonymous with criminal offender.’”

■■ “Help change the narrative of crime and justice. Phrases like ‘tough on crime,’ ‘the wrong element,’ and ‘don’t do the crime if you can’t do the time,’ reinforced the narrative of mass incarceration. So do calling constitutional protections ‘technicalities’ and ‘loopholes,’ or describing alternatives to incarceration as ‘coddling.’ To help propel criminal justice reform, prosecutors should talk about ‘mercy,’ ‘justice,’ ‘compassion,’ and ‘fairness’ in ways that resonate with the public.”

■■ “Counsel prosecutors to avoid dehumanizing language in court. Words like ‘animal’ and ‘gangbanger’ should be off limits.”

21. Employ the Language of Respect