Over the last four decades, the number of people detained in American jails and prisons has increased five-fold, to 2.2 million, or nearly 1 out of 100 adults. Despite boasting one of the lowest crime rates in the country, Virginia’s incarceration rate has increased more than 300 percent since 1980. If states were countries, Virginia would have the 13th highest incarceration rate in the world.

The American criminal justice system was built on the right to a fair trial. Four of the first ten amendments to the United States Constitution guarantee fair procedures in the criminal process. The right to trial by jury is virtually unique to American courts, and one of the few ways citizens still participate in our democracy. Yet despite the reverence with which we regard these rights, in practice they are vanishing; and this is scarcely more evident than in the Commonwealth of Virginia.

The fact is, Virginia has replaced its system of trials with a system of pleas. The vast majority of felony convictions now result from guilty pleas: nationwide, 94 percent of felony convictions in state courts, and 97 percent in federal courts, are obtained through plea bargains. Some some jurisdictions in Virginia easily beat the national average. Arlington County, for example, has obtained an astonishing 97.5 percent of its felony convictions from guilty pleas over the past 5 years. 


The main reason our system has come to be dominated by plea bargains is because of the “immense and virtually unreviewable power” of prosecutors. Prosecutors are the government officials responsible for charging people with crimes and proving those cases in court. In Virginia, there’s a chief prosecutor who represents every county, city and town. These prosecutors are called Commonwealth’s Attorneys, and they are elected by their local communities. Many are up for election in 2019.

The extraordinary power of Commonwealth’s Attorneys has been built incrementally over time. That power has been granted to them in the form of rules, laws and procedures passed, adopted or decreed by the legislature and the courts. Because Virginia’s legislature and courts have traditionally taken a very punitive approach to the criminal law, most of their actions have increased the power of police and prosecutors, while chipping away at the rights of criminal defendants.

The bottom line is that, because Commonwealth’s Attorneys have so much power, they can virtually dictate the outcomes of criminal cases. They can put so much pressure on defendants, and threaten them with such harsh punishment, that only the most reckless risk-takers are willing to take their cases to trial. A recent report by the National Association of Criminal Defense Lawyers (NACDL), fittingly called “The Trial Penalty,”  notes that “individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose.”

How TO REPLACE Individual Rights with Prosecutorial Power

  • Pass more laws that outlaw more types of conduct

  • Make penalties for existing laws harsher

  • Create mandatory minimums that totally remove discretion from judges and juries

  • Enact procedures that allow for charges to be “stacked,” and make single criminal acts punishable under multiple statutes, or through many different counts

  • Adopt rules that sharply limit the ability of defendants to be prepared for trial, like not allowing them to see the police reports from their own cases, or not allowing juries to know the sentence they will have to impose until after they’ve convicted

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What happens when Commonwealth’s Attorneys take full-advantage of their ability to induce guilty pleas and maximize punishment? The prevailing belief is that the unfettered exercise of prosecutorial power is the main driver of over-criminalization and mass incarceration in America (and in Virginia) As such, it is also the main cause of racial inequity and many other unfortunate features of our justice system.

With every weapon of coercion at their disposal, Virginia’s Commonwealth’s Attorneys can make their cities and counties as unforgiving as they want—or they can use their discretion to promote equal justice, racial fairness, rehabilitation, restorative justice, and eliminate the causes of mass incarceration. They dictate and shape criminal justice policy in every Virginia community, deciding which laws to enforce and what sentences to impose. Because their power is virtually limitless, if there are to be any limits, those limits must come from them.

New: Running Up the Score: How Virginia Rewards Prosecutors for Overcharging