Will the progressive prosecutor movement come to Richmond?

By: - May 27, 2021 12:01 am

A police officer walks into the John Marshall Courthouse in downtown Richmond. (Photo by Ned Oliver/Virginia Mercury)

When a group of prosecutors representing some of Virginia’s biggest localities banded together to pursue criminal justice reform initiatives last year, one large, heavily Democratic city was conspicuously absent.

Richmond Commonwealth’s Attorney Colette McEachin says she didn’t join the group, called the Virginia Progressive Prosecutors for Justice, because she “doesn’t need to join a club” to make change in the system.

But her decision, coupled with her opposition to some of the reforms the group pursued, has emerged as a campaign issue in next month’s Democratic primary, when she faces a primary challenger who promises to fully embrace the movement that now counts 12 Virginia commonwealth’s attorneys as members.

“I’m running as the progressive challenger in this race specifically because Colette McEachin is not a progressive prosecutor,” said Tom Barbour, who served as an adviser to McEachin’s predecessor before leaving to take on defense work and launch a nonprofit initiative.

“She is a 1990s-style prosecutor who came up in a culture where people talked about super predators and measured their success in terms of convictions and incarceration. She’s not a progressive because she quite simply hasn’t progressed with the criminal justice system in any meaningful way.”

McEachin counters that she does indeed consider herself a progressive prosecutor and presents her long tenure as an asset compared to Barbour’s 13 months working full-time in the office. But her remarks during the campaign also make clear that she’s not entirely on board with the reform agenda that has emerged nationally and in Virginia.

“You have to be balanced,” McEachin said in an interview this week. “There’s a reason that Lady Justice has a scale that she’s holding. It can’t just be about the defendant or offender and making sure that he or she gets resources or is not incarcerated, because on the other side of that coin is a victim that got harmed.”

Tom Barbour (left) is challenging Richmond Commonwealth’s Attorney Colette McEachin in the Democratic primary. (Contributed photos)

Until recently, commonwealth’s attorney races in Virginia have been sleepy affairs, with Democrats and Republicans alike campaigning on tough-on-crime, law-and-order agendas. Only in the past few years have prosecutors in a handful of jurisdictions begun to break from that mold, with two announcing plans to stop prosecuting minor marijuana crimes and others promising to stop requesting defendants be held on cash bonds.

The movement solidified in 2019, when progressive challengers swept longtime Democratic incumbents from office in Fairfax and Arlington by running on explicitly progressive campaigns. The two races drew national interest and funding, with Democratic mega-donor George Soros’ Justice and Public Safety PAC pumping a million dollars into the campaigns.

With a critical mass of prosecutors suddenly open to criminal justice reform and new Democratic majorities in the General Assembly welcoming the ideas, the Virginia Progressive Prosecutors for Justice formed, unrolling an agenda that included ending the death penalty, mandatory minimums and cash bail, among other things.

It was a striking departure from the advocacy typically seen from prosecutors in the General Assembly, who are represented by the Virginia Association of Commonwealth’s Attorneys, which in the past often opposed criminal justice reform initiatives.

The shift has occasionally led groups of prosecutors to come before the General Assembly advocating on opposing sides of proposed reforms. During a special legislative session, a coalition of 66 prosecutors from mostly Republican jurisdictions co-signed a letter arguing against legislation that will reform the way jury trials are conducted to eliminate what is sometimes called the “jury penalty” — a phenomenon in which defendants who exercise their right to a jury trial often face steeper sentences if they are found guilty.

Among the signatories opposing the change was McEachin. While the progressive prosecutors backed the legislation and it has frequently been called one of the most important legal reforms the General Assembly has adopted, others worried it would lead to an up-tick in jury trials and limit prosecutor’s leverage in plea bargaining.

McEachin says her opposition was grounded in her belief that the jury should have a say in the sentencing portion of the trial, something the legislation would change. And she emphasized her office doesn’t use the threat of a jury trial to pressure defendants to accept plea bargains, noting that in Richmond, defendants request almost all of jury trials that are held.

McEachin, who has worked as a city prosecutor for 25 years, is campaigning for her first full term as commonwealth’s attorney after winning a special election in 2019. In campaign forums, she’s emphasized other areas where she has backed reform, noting she too supported the repeal of the death penalty earlier this year by sending a letter to her local delegate. She also pointed to her office’s use of alternative dockets for people who face drug and mental health problems.

If reelected, she said she plans to launch a program that will teach Richmond Public School students the basics of the legal system and their rights in traffic stops. And she notes that she has continued her predecessor Mike Herring’s policy of not seeking cash bail in many cases.

Barbour, a former captain in the Marine Corps who after leaving the prosecutor’s office launched a nonprofit aimed at connecting criminal defendants with social services, called those initiatives a drop in the bucket. He noted the diversion dockets amount to at most a few hundred of the thousands of cases that move through the courthouse every year. He promised to address those issues in every case, not just the handful that are diverted.

“If you want fewer thefts, the way to address that to avoid the next theft victim, is to address mental health issue and substance use issue. And that is how you actually reduce crime,” he said.

He also challenges McEachin’s approach to cash bail, noting that while prosecutors might not be explicitly asking a judge to hold a defendant who they don’t consider dangerous, they also don’t support defense motions for release on personal recognizance. The result is that many defendants are held anyway.

Barbour said he would instruct his employees to actively argue against holding a defendant on a secured bond in cases where public safety isn’t a concern and would track statistics to make sure front-line prosecutors follow through.

In a recent debate, McEachin scoffed at the idea of using metrics to track cases. “The commonwealth’s attorney office cannot be a case study for somebody’s MBA,” she said. “The commonwealth’s attorney office is not based on metrics or calibration or studies, the commonwealth’s attorney office has to be based on the individuals who have offended and the person who has been harmed.”

Barbour also said he would join the Virginia Progressive Prosecutors for Justice to lend the city’s voice to the nascent reform movement in a more deliberate way.

McEachin said she respects the prosecutors in the group, but sees no need to join it herself.

“I am happy that Richmond has been doing progressive criminal justice reform initiatives for 20 years, which certainly predates the formation of their group,” she said.

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Ned Oliver
Ned Oliver

Ned, a Lexington native, has been a fulltime journalist since 2008, beginning at The News-Gazette in Lexington, and including stints at the Berkshire Eagle, in Berkshire County, Mass., and the Times-Dispatch and Style Weekly in Richmond. He is a graduate of Bard College at Simon’s Rock, in Great Barrington, Mass. He was named Virginia's outstanding journalist for 2020 by the Virginia Press Association.