Open Source Reform
The Initiative's ultimate strategic goal is to advocate for data-informed legislation to end the incarceration of non-violent people.
To build this public argument in real-time, the Initiative is generating this data by assisting our non-violent clients through engagements with local resources to address their risks and circumstances pulling them into the criminal justice system. By innovating and operating this supportive, holistic intervention model of public safety, the Initiative is demonstrating how individually tailored opportunities for personal accountability can be more humane, more effective for longterm crime reduction, and more cost effective than rote incarceration.
In the spirit of open source development, whereby starting points for such innovations are made publicly available for collective improvement, the Initiative is offering its conceptual beginnings here as an effort in Open Source Reform.
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Why Crime Happens: A Circumstance Theory of Crime & Accountability
Conventional criminal justice interventions focus entirely on the question of whether a person committed a crime without asking why the person did so. The criminal justice system skips over this question by presuming that every person's why is the same: they are morally culpable.
Within this construct, conventional criminal justice interventions have evolved historically as punishments of moral culpability – specifically, by incarceration as the default, societal correction of a person's illegal decision-making.
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The problem is – personal decision-making is only part of why crime happens; it is a person's circumstances that create the conditions for crimes to occur.
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Conventional criminal justice interventions that incarcerate non-violent people are ineffective, inhumane, and expensive precisely because incarceration exacerbates the already-existing circumstances that created the conditions for their crimes to occur in the first place – without mitigating any violent risks or danger in communities.
Specifically, incarcerating non-violent people tends to create recidivism risks by inserting additional circumstances into their lives that wouldn't otherwise be present, thereby pulling them back into the criminal justice system with even more force, as they struggle to deal with circumstances arising from being in jail or prison: loss of employment and housing, debt accumulation, social isolation, and significant mental, emotional, and physical stress, among other conditions.
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Non-violent people in the criminal justice system are often making reactive decisions under uncertainty to avoid personal losses and suffering within exactly these kinds of complex circumstances – and their reactions can sometimes lead to additional criminal allegations for drug use, theft or financial crimes, trespassing, and other non-violent violations of the law.
The Initiative is rejecting conventional, normative theories of Crime & Punishment in favor of its own descriptive theory of why crime happens, as observed from the actual, lived experiences of non-violent clients in Virginia's criminal justice system.
From this conceptual starting point for the Initiative's Circumstance Theory of Crime, we are creating a new, normative model of criminal justice intervention to provide Accountability that is actually effective for a Safer Virginia: Accountability that directly confronts the experiential realities of non-violent people and works to improve them within a holistic, supportive intervention model of public safety.
The Initiative's conceptual starting point for its Circumstance Theory of Crime & Accountability is offered here to invite academics and researchers to reach out and Get Involved! in co-creating this analysis with us. Experts in fields as varied as cognitive psychology, behavioral economics, experimental design, and others, may recognize their concepts of decision-making under uncertainty and the public safety potential for holistic, supportive, interventional nudges of non-violent people – and we need their help to explore these ideas professionally.
Why Incarceration Happens: Three Gates on the Road to Jail
Under conventional criminal justice theories, the road to jail or prison begins with the moral culpability of the accused. But this is an out-dated, theoretically normative staring point largely divorced from the experiential realities of non-violent people in the criminal justice system. Within the Initiative's Circumstance Theory of Crime & Accountability, a more accurate description of the starting point emerges: the circumstances in which people live.
From these circumstances that create the conditions for crimes to occur, if you are the person accused of a crime, you will be prosecuted – and your prosecution will feel like walking down a road to jail that is lined with three gates:
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Gate #1: The Evidence Against You
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The first gate is the one with which we are all familiar: the evidence in the case against you. If the evidence in the case against you is strong – or, in the case of wrongful convictions, even if it only appears to be strong – this gate will swing open and you will continue down the road to jail. If the evidence in the case against you is weak, you can expect this gate to remain closed: your case may end in a dismissal, an acquittal, or, even if you are convicted, you will probably avoid incarceration in a prosecutorial trade for your guilty plea.
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Gate #2: The Sentencing Preferences of the Local Prosecutors
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If the evidence against you is strong enough, you will continue walking down the road to jail until you confront the second gate: the sentencing preferences of the local prosecutors. Ultimately, prosecutors make arguments to judges and juries about whether and for how long you should go to jail or prison. If a prosecutor does not believe you should be incarcerated, you probably won't be. However, if the prosecutor does believe you should be incarcerated, the severity of your outcome is cabined only by the statutory penalty range for the crime with which you are charged – and by the third gate.
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Gate #3: The Sentencing Preferences of the Local Judges & Juries
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If a prosecutor is advocating for your incarceration, the second gate will swing open and you will find yourself continuing down the road to jail until you confront the third gate: the sentencing preferences of the local judges and juries. However, when you arrive at the third gate you will probably find it has already been opened – and you will notice that the third gate is tethered by a rope to the second – because, whenever a prosecutor decides to argue for your incarceration, the judge or jury generally agrees with the prosecutor's recommendation.
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Why is this? Because in Virginia, the same voters who elect local prosecutors make up the local jury pool and also vote in the same elections for the local General Assembly representatives who drive the appointment of judges in the region. In this way, the sentencing preferences of local prosecutors, judges, and juries are largely similar because they derive from a common source: a locality's voting populace.
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Prosecutorial Discretion Drives the Incarceration of Non-Violent People
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Within this sentencing dynamic, it is highly likely that you will be going to jail if that is the sentencing preference of the local prosecutor – even if you are a non-violent person. In this way, it is prosecutorial discretion that drives the incarceration of non-violent people.
The Initiative's Reform: Installing a Fourth Gate on the Road to Jail
Gate #4: Is Incarceration Necessary to Mitigate an Unreasonable Danger to the Person or Public?
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Currently, Virginia's prosecutors do not have to prove, nor are our judges or juries required to find, that a person poses an unmanageable risk of danger to themself or the public before they are sentenced to jail or prison.
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The Initiative's data-informed legislation to end the incarceration of non-violent people in Virginia would install this threshold sentencing question in an argued, evidentiary hearing, modeled on the standards within Virginia's already operable bail and civil commitment statutes, and in keeping with the due process principles protecting Virginians from the involuntary deprivation of their liberty contained within both of these sets of laws, as a Fourth Gate on the Road to Jail.
Only when this burden is met would an individual be subject to active incarceration within Virginia's current sentencing laws. By its implementation prior to any sentencing event, this mechanism could withstand constitutional review as a consistently employed procedure in all criminal proceedings in Virginia. Yet, by its function as a threshold legal determination, it could be implemented without significant redrafting of Virginia's criminal code. In this way, the Initiative's proposed evidentiary hearing could ensure consistency in determining the question of incarceration while limiting its application only to situations where incarcerating an individual is deemed necessary for violent risk mitigation by a judicial process.
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The intended effect of this legislation is to enable local tolerances for managing violent risks in Virginia, already present and employed in bail decisions and civil commitment proceedings, to replace assessments of moral culpability as the driving force for sentencing in the Commonwealth. These local risk preferences would be subject to state-wide appellate review to achieve consistency in the application of incarceration across jurisdictions, such that jail or prison would be reserved only for individuals posing dangers too great to be mitigated by alternative conditions in Virginia's communities.
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Under this reform, widely varying personal views on moral culpability that bias the sentencing preferences of local prosecutors, judges, and juries within Virginia's current sentencing paradigm, would no longer determine the incarceration of non-violent people.
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Instead, their Road to Jail would be closed by a Fourth Gate: an argued, evidentiary hearing that produces continuously improving caselaw on what evidence-driven, adversarially tested factual findings constitute the best practices for violent risk mitigation in Virginia's communities. When this caselaw is bound together across the Commonwealth by a consistent legal standard and appellate review, Virginians could expect a sentencing paradigm to emerge that would end the incarceration of non-violent people.
Under the Initiative's proposal, an evidentiary hearing would place the burden on the Commonwealth's prosecutors to prove, and would require Virginia's judges or juries to find, by a legal standard subject to appeal:
Whether the incarceration of an individual is necessary to mitigate an unreasonable danger to the person or public, as no other condition or combination of conditions will reasonably assure their safety.
Local Reform Opportunities
The term, "criminal justice system," is a bit of a misnomer – criminal statutes are enforced in Virginia, and across the country, not through a cohesive system but through a patchwork of individual, jurisdictional systems that can differ dramatically in their approaches and practices.
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In Virginia, for example, there are 95 counties and 38 independent cities, many of which have their own local criminal justice system or share prosecutors, judges, courts, and jails with closely neighboring jurisdictions.
The autonomy of the stakeholders in these various jurisdictional systems – especially the legal discretion granted local prosecutors, police, and judges within Virginia's existing laws – is significant because these discretionary powers can provide for local reform opportunities without any need to wait for legislative action in the General Assembly.
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To this end, the Initiative offers the following conceptual starting points for local reform opportunities consistent with the Initiative's proposal to end the incarceration of non-violent people.
Local Reform Opportunity #1: Non-Binding Resolutions to Limit Custodial Arrests of Non-Violent People
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The authority for police to conduct custodial arrests – that is, arrests that remove people from the public by force – is delineated by statute, primarily: Virginia Code § 19.2, Chapter 7 – Arrest.
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Police generally have discretion over whether to affect a custodial arrest of someone at the time of an alleged offense, though there are certain requirements for mandatory custodial arrests in real-time, including in domestic violence situations.
When police do not have an arrest warrant in hand, their discretion to decide whether or not to affect a custodial arrest at the time of an alleged offense is incredibly broad, even when a person commits the offense within their presence, as described under § 19.2-81(B).
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When an arrest warrant has been issued, this discretion narrows, but local police departments still have authority under § 19.2-73.1 to notify the person to be arrested of the pending warrant and direct them to appear at a certain time and place for the purpose of affecting the arrest peacefully. This authority is specifically available for any pending summons or arrest warrant for any misdemeanor – and, also for any pending arrest warrant issued for a Class 5 or Class 6 felony.
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Taken together, these statutes can enable local police departments to set custodial arrest policies that would employ their available, legal discretion in the timing and manner of affecting such arrests according to local preferences for how to handle certain charging events or particular types of criminal records of individuals, a factor that could be determined by officers on the street.
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Were the local Commonwealth's Attorney's Office to support such a reform, it could bring its own charging powers to bear to expand the available legal discretion in the timing and manner of affecting custodial arrests to an even broader set of felony charges through the employment of notice procedures in direct indictment practices.
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With these authorities and concepts as starting points, localities could work with law enforcement and their CA's Office to research, draft, and pass non-binding resolutions that set requested limitations on custodial arrests of non-violent people, by accessing legal discretionary powers already available within the current construct of Virginia's laws of arrest.
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Local Reform Opportunity #2: Non-Binding Resolutions to Limit Pre-textual Policing of Non-Violent People
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Pre-textual policing is the practice of conducting stops for minor infractions to investigate currently unknown criminal activity, for which an objective law enforcement officer would not have reasonable suspicions. One such example occurs daily in Virginia when police officers stop vehicles for faulty brake lights, out-of-date inspection stickers, or for failing to use a turn signal, among other minor violations, and, rather than addressing these issues at face-value with tickets or warnings, the officers pre-textually use the encounters to conduct searches of vehicles to discover other latent, illegal activity.
While some of these encounters do yield the discovery of illegalities perpetrated by violent actors, many more ensnare non-violent people, often drug addicts. Most, however, end only in encounters that leave people in heavily policed areas feeling targeted, such that, over time, and even over generations, they become generally unwelcoming of any police presence.
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Ultimately, pre-textual policing is a law enforcement method that can be forgone. Were the local Commonwealth's Attorney's Office to support such a reform, the locality could work with law enforcement and the CA's Office to research, draft, and pass non-binding resolutions that set requested limitations on the conduct of pre-textual policing of non-violent people, by accessing legal discretionary powers already available within the current current construct of Virginia's criminal code.
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Local Reform Opportunity #3: Non-Binding Sentencing Resolutions to End the Incarceration of Non-Violent People
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Local prosecutors decide whether to advocate for incarceration, local judges decide whether to impose it, and local legislators decide whether to support local judges in their reappointments to the bench.
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In the criminal justice system, incarceration is discretionary – neither prosecutors nor judges are under any legal requirement to impose incarceration apart from mandatory minimum sentences. For judges, even the felony sentencing guidelines discussed below in, "Limits of Virginia's Felony Sentencing Guidelines," are discretionary.
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However, discretionary decisions by prosecutors and judges to avoid incarceration may incur effects from the General Assembly that make them feel otherwise to these stakeholders, for example: when the Compensation Board ties budgets for salaries of local prosecutors to staffing standards that incentivize felony prosecution and other prosecutorial practices that tend to increase the likelihood of an incarceration outcome, thereby limiting the budgets of progressive Commonwealth's Attorney's Offices; or, when the Virginia Criminal Sentencing Commission (VCSC) tracks judicial compliance with the felony sentencing guidelines as a matter of voluntary concurrence but makes that data available to the General Assembly for consideration in whether to reappointment judges who depart from the guidelines.
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Under these conditions, local prosecutors and judges may feel the need for publicly overt, local support for their progressive practices, as a signal of their positive reception by the voters who elect General Assembly members who will ultimately decide future budgeting and reappointment issues affecting these local criminal justice stakeholders.
Rather than wait for the General Assembly to pass comprehensive reform, localities could provide this public measure of support for their progressive prosecutors and judges by working with both of these institutions to research, draft, and pass non-binding resolutions that publicly endorse an end to the incarceration of non-violent people. The Initiative's sentencing mechanism proposed above in, "The Initiative's Reform," could be adopted locally, not as an evidentiary hearing, but as set of requested limitations on prosecutorial discretion – a public resource already legally available to elected Commonwealth's Attorneys within Virginia's existing criminal code and supporting caselaw.
Were the local Commonwealth's Attorney's Office to support such a reform, judges within these progressive jurisdictions would always have both the advocacy of the local prosecutor and the local, non-binding resolution to cite as bases in their sentencing decisions.
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Local Reform Opportunity #4: Incentives for Open Hiring & Housing Practices to Reduce Criminal Record Effects for Non-Violent People
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Two circumstances that play out-sized roles in creating conditions for crime to occur are the employment and housing opportunities of individuals. However, even as non-violent people with criminal records strive to work or live in stable environments, their past often limits access to such opportunities.
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Ban-the-box legislation does much to eliminate overt discrimination in this regard – but, as a practical matter, many employers and housing managers still run background checks that surface the criminal histories of individuals.
However, some employers and housing managers take a different approach – by proactively accepting people with criminal records, especially those with non-violent convictions. One example of this practice that has emerged in other parts of the country is Open Hiring, by which employers forgo background checks and effectively make job performance the job application.
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With Open Hiring as a conceptual starting point to consider, localities could work with their employers and housing managers to research, draft, and pass ordinances creating incentives – financial or otherwise – for the adoption of Open Hiring or Open Housing practices that reduce the effects of non-violent criminal records. Localities could then publish lists of participating entities to build pathways out of poverty for non-violent people with criminal records.
Limits of Virginia's Felony Sentencing Guidelines
But Virginia's felony sentencing guidelines system generally avoids the threshold sentencing question the Initiative's data-informed legislation to end the incarceration of non-violent people would propose:
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Whether the incarceration of an individual is necessary to mitigate an unreasonable danger to the person or public, as no other condition or combination of conditions will reasonably assure their safety.
Due to the jurisdictional sentencing dynamics described above in "Why Incarceration Happens," significant disparities in felony sentencing emerged historically between jurisdictions across Virginia. For example, similarly charged and situated accused persons prosecuted for felonies in Chesterfield may have been sentenced to significantly longer terms of incarceration than those prosecuted in Richmond because of the different sentencing preferences between each jurisdiction's voting populations.
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One goal of this legislation was to ensure consistency in felony sentencing across Virginia by the establishment of the Virginia Criminal Sentencing Commission (VCSC), which was charged with promulgating and overseeing a voluntary, felony sentencing guidelines system to reduce historical sentencing disparities. Specifically, the felony sentencing guidelines were drafted to cut down on the variance between sentences imposed for similarly charged and situated accused persons prosecuted in different jurisdictions, especially by eliminating outlier sentences.
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Though a laudable goal, the method employed by the VCSC to create these felony sentencing guidelines effectively cemented moral culpability, rather than violent risk mitigation, as the driving force of incarceration in Virginia, as many of the historical sentencing preferences favored by judges across the Commonwealth who embraced this conventional, criminal justice approach to sentencing were ultimately adopted. This embedded, within the core of the logic of the guidelines, what might best be understood as an interjurisdictional average of sentencing preferences for people of similarly perceived, moral culpability.
Instead of posing this threshold question in an argued, evidentiary hearing, that places the burden on the Commonwealth's prosecutors to prove, and requires our judges or juries to find, as a matter of process rightly due a human being prior to incarcerating them, that the person poses an unmanageable risk of danger to themself or others, Virginia forgoes such judicial process and folds the issue into its felony sentencing guidelines system via an algorithmic worksheet called the Nonviolent Risk Assessment.
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This worksheet ultimately ignores subtleties of human experience that could be more readily considered in a hearing like the one proposed as the Initiative's Reform. If they must be used, algorithmic risk assessments like Virginia's Nonviolent Risk Assessment Worksheet, are better employed as a single piece of evidence for consideration in a contested judicial process, rather than as the sole, determinative factor of whether a human being is incarcerated or offered an alternative accountability opportunity.
Furthermore, as a mechanism of Virginia's felony sentencing guidelines, the Nonviolent Risk Assessment is not only formally unavailable for consideration in the sentencing of anyone prosecuted for a misdemeanor – it is also designed, despite what its label may suggest, to exclude recidivists, even non-violent recidivists, from consideration for alternatives to incarceration – along with people who may be currently non-violent but who have even a single prior violent conviction, no matter how old.