MYTHS & FACTS
ABOUT THE CRIMINAL JUSTICE SYSTEM

MYTH:

Virginia’s Commonwealth’s Attorneys are resisting criminal justice reform.
 
FACT:
Virginia’s Commonwealth’s Attorneys have always been leaders in the evolution of the criminal justice system with the goal of protecting the rights of victims and defendants.  Our prosecutors have been pioneers in using diversion programs and alternative sentencing measures to seek justice and provide opportunities for rehabilitation, while saving finite prison resources for individuals who may pose a serious threat to our citizens. Virtually every jurisdiction in Virginia has at least one alternative court or diversion initiative, and some have as many as 10 programs in place to address the specific rehabilitation of criminal offenders. With new prosecutor-driven justice innovations coming on-line every year, Virginia Commonwealth’s Attorneys remain committed to making our justice system modern and resource efficient. We work to ensure citizens are protected and individual offenders receive effective programs and services to reduce and eradicate repeat criminal behavior.

MYTH:

Virginia’s prosecutors are to blame for the “mass incarceration” we are experiencing right now.
 
FACT:
It’s important to understand that Commonwealth’s Attorneys do not, alone, have the power to incarcerate a single person. Our justice system is intentionally designed to avoid concentration of power in any one entity. The Virginia legislature establishes the criminal laws and appropriate sentences for individuals who engage in criminal behavior.  Prosecutors also don’t sentence people. That role resides with judges and juries.

MYTH:

Commonwealth’s Attorneys are the most powerful actors in Virginia’s criminal justice system.
 
FACT:
Not by a long shot. Actually, no single actor in the criminal justice system is “all powerful.”  Our American justice system is specifically designed to prevent a concentration of power – especially when it comes to prosecutors.

 

  • Prosecutors don’t make the laws.  The power to make laws rests with the legislature. Simply put, pretty much all crimes and their punishments are decided by your Commonwealth’s Delegates and Senators.
  • Prosecutors don’t arrest people.  Prosecutors get involved once an arrest has been made and charges have been filed. They then evaluate the charges and prosecute if, and only if, those arrests are lawful and appropriate.
  • Prosecutors don’t convict people.  Only a judge or a jury can convict someone of a crime.
  • Prosecutors don’t sentence people. Only judges can sentence people, and only within the range of punishment set forth by the legislature. Commonwealth’s Attorneys can, and usually do, make recommendations for an appropriate sentence based on the nature of the crime and the defendant’s criminal history. However, the judge is free to disregard the prosecutor’s recommendation and that happens regularly. In the event that the Commonwealth’s Attorney and the defense counsel agree on a suitable sentence, that agreement – known as a “plea agreement” – still must be approved by the judge.

MYTH:

Virginia’s prisons are filled with non-violent, first-time offenders because prosecutors always try to get the maximum sentence.

 
FACT:
For non-violent offenders, Virginia’s Commonwealth’s Attorneys are committed to seeking justice in ways that do not involve prison, such as diversion, drug courts, mental health courts and other alternative programs.

MYTH:

Virginia’s Commonwealth’s Attorneys are not accountable to anyone.
 
FACT:

Commonwealth’s Attorneys are more accountable than any other actor in Virginia’s criminal justice system. 

 

Commonwealth’s Attorneys are:
  • Elected by Virginians every four years.
  • Scrutinized by defense attorneys, the media, victims, the police and watch-dog organizations.
  • Monitored by local judges, the Virginia Supreme Court, the Virginia Bar, and the US Supreme Court.
  • Required to abide by state and local laws, the Virginia Constitution, the US Constitution, the Virginia Open Records Laws, discovery rules, Brady discovery rules and the Virginia Bar Rules of Professional Responsibility.

MYTH:

Virginia’s prosecutors work in secret. No one can see what they are doing, and they like it that way.
 
FACT:
Have you ever read a newspaper? Or watched the television news? Then you know that this myth is not true. Literally everything that Virginia prosecutors do is subject to scrutiny.  Virginia’s prosecutors practice responsible transparency. What is that? This means transparency except in those limited times when a prosecutor cannot speak publicly about a case in order to protect the integrity of an ongoing investigation, or to protect the defendant’s right to a fair trial.  Other than that, our work is an open book. We encourage you to contact your local Commonwealth’s Attorney for a visit.   
 
Here are ways that Virginia’s prosecutors practice responsible transparency every day:
  • The media cover our work extensively
  • Every trial is open to the public
  • Every court file is open to the public, unless sealed by a judge, However, there is a strong presumption against sealing documents and files.
  • Through our adversarial justice system, specifically defense attorneys scrutinize every action that prosecutors take in discharging their duties. In fact, it is the defense attorneys’ job to hold prosecutors accountable by bringing any concerns forward to the judge assigned to the case.

MYTH:

Prosecutors only care about getting convictions and putting people in jail.
 
FACT:
Prosecutors seek justice, not prison time. Prosecutors are focused on one thing, and one thing only: justice. In fact, in Virginia, Commonwealth’s Attorneys are considered Ministers of Justice. Justice can mean convicting someone of murder or child molestation, which results in a prison sentence in order to protect the community. However, in the vast majority of cases handled by Commonwealth’s Attorneys, justice means probation, drug treatment, mental health treatment or some other alternative to prison.

MYTH:

Defense attorneys and prosecutors are equally interested in seeking the truth and protecting our communities.
 
FACT:
Under the American legal system, prosecutors and defense attorneys have important, yet very different roles and obligations. By law, Prosecutors are charged with pursuing justice by seeking the truth in every case and by protecting the rights of everyone – victims, defendants and the community at large.
 
In contrast, defense attorneys have only one focus: they are charged with zealously representing their client regardless of guilt. The primary focus of a defense attorneys is to protect the rights of their client. Prosecutors focus on pursuing justice, protecting the rights of victims, protecting the rights of the accused and protecting the safety of the entire community.

MYTH:

Virginia’s Commonwealth’s Attorneys won’t charge police officers with a crime if they unlawfully hurt or kill a citizen
 
FACT:
Virginia’s Commonwealth’s Attorneys take seriously their responsibility to pursue charges where appropriate without regard to a defendant’s occupation or status. In some instances, to ensure the integrity of the judicial process, circumstances may warrant Commonwealth’s Attorneys to engage the services of a special prosecutor from outside the Commonwealth’s Attorney's office. Cases that are not referred, however, are handled by the local Commonwealth’s Attorney who will conduct a full and fair investigation.

MYTH:

Most of Virginia’s prosecutors are “old school” and not progressive or modern. They just want to put people in prison and they are not open to different ways of doing things.
 
FACT:
This one is really a whopper! Virginia’s Commonwealth’s Attorneys are leaders in creating alternative sentencing, diversion programs, specialty courts and treatment programs designed to keep people out of prison. In addition, Virginia’s prosecutors support re-entry programs to ensure that those returning from prison have the opportunities they need to be productive members of society. Virtually every Virginia Commonwealth’s Attorney has some sort of “progressive” program.

Virginia Association of Commonwealth's Attorneys

 2140 Rivermont Avenue

Lynchburg, VA 24503