Prosecutorial Misconduct Prevention Bill
Moderating the pressure on Commonwealth Attorneys to win at all costs


In the criminal justice system, the people are represented by two separate yet equally important groups: the police who investigate crime, and the Commonwealth Attorneys who prosecute the offenders.  The police take their direction, and tend to pursue the types of crimes that the Commonwealth Attorney tends to prosecute.  If the C.A. prosecutes minor offenses, the police look for minor offenses, and bring in harmless citizens.  If the C.A. throws minor cases out, the police focus their attention on more serious crimes, such as unsolved murders, terrorist prevention, and finding lost children.


It is the Mission Statement of the Commonwealth Attorney office "To see that the innocent go free and the guilty are convicted."


Prosecuting attorneys are intended to be ministers of justice, not to merely administer prosecution.  Our current system puts too much pressure on prosecuting attorneys to win at all costs, as a measure of job performance.  Their job evaluation should be modified to allow the prosecutor to evaluate if a crime really took place.  It should recognize that winning is not the only thing. Winning the right cases, for the protection of the public, is what counts, and what the public wants.


Prosecution is a form of punishment in itself.  Regardless of whether the accused is innocent or guilty, all those who have been arrested, processed, and brought before the court have suffered financial, emotional, and physiological stress.  They have paid a "fine" in the form of attorney fees.  They have "done time" in the form of lost hours from work.   They have been "beaten" by the worry of the upcoming hearing.  It is important to take every possible step to protect the innocent from further punishment.


Many prosecuting attorneys were excellent debaters while in school, have practiced many hours arguing a point they know may not be valid, and may have the Debate Team Syndrome.


Arlington County has 15 Commonwealth Attorneys for 150,000 people (1 per 10,000)

Nearby Fairfax County, by comparison, has 19 Commonwealth Attorneys for over 1,000,000 people (1 per 52,632)

Arlington has over 5 times as many Commonwealth Attorneys per person than Fairfax.

Arlington could transfer or eliminiate 10 Commonwealth Attorney positions to keep the same ratio as Fairfax.

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If Arlington County Commonwealth Attorneys are sitting in the court room to listen to another's trial, two of them are billing Arlington County citizens at a time.   This is good for their experience and learning from each other, but the time spent may be a bit excessive.  One wonders why they have the time on their hands, as indicated by the relatively minor offenses they seem to focus on.  For example, a hard working tree surgeon was jailed for 5 days for allegedly overcharging  (even though he was willing to refund, or do more trimming to satisfy the customer).   The Commonwealth Attorneys who are not busy on murder cases, or finding lost children could be assigned to help Fairfax with their case load, and back log of serious offenses.

The people of Arlington County are mostly upper middle class, work for the Government or Military, and are generally well behaved.  So there are naturally fewer crimes to deal with.   With idle prosecutors, it is no surprise that very small "molehills" are made into "mountains" to show that something is being done to justify their expense and modern offices.  Charges that would be dismissed in Fairfax are prosecuted at great expense in Arlington.

Something as ridiculous as prosecuting a man for trespassing where he had a lease has occurred.  He was just doing his wash.  At most, there was a misunderstanding between him and the landlord regarding his ability to go on the property after construction.   Certainly there was no intent to do harm by the tenant, against property he had lived in for 3 years and was preparing to continue leasing.  But a big "to do" was made of it, expending thousands of taxpayer funds over it.  In most other jurisdictions, such as Fairfax, this case would be thrown out of court.  This is a sign that the Arlington Commonwealth Attorney's staff has too much time and too little to do.

Arlington Jail/Hotel Vacancies

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Jail should be the last resort, and only used when the inmate presents a danger to the public.  There is little rehabilitation that goes on there.  It only compounds the stress that causes a person to act wrongly.  Stress management should be taught whenever possible.  Judges in St. Louis regularly sentence offenders to learn to meditate, with the greatest reduction in recidivism in the nation.

There seems to be a "Jail Hotel Syndrome" whereby the Arlington Jail receives subsidy of approximately $300 per day per inmate from the State of Virginia.  If the inmate population falls creating more "vacancies" the jail loses revenue, while fixed costs are relatively constant, just like a hotel. 

There is a well known "use it or lose it" syndrome in government agencies, meaning that if a department does not spend a budgeted amount this year, their budget next year will be trimmed.  Budget makers assume they do not need the money.

So it is in there interest to keep the budget, revenue, and jail full.  If there are no serious criminals to fill the cells or "rooms" then less serious crimes are punished with jail sentences.

It has often been quoted that the United States has the highest percentage of people incarcerated of all industrialized nations. But this statistic needs to take into account that the United States has a higher standard of behavior than most of the world. Many deeds that are punished with jail sentences in the U.S. are not even considered crimes in other countries.

For example, if you have driven in a taxi in many countries, you will see the driver do many things, including driving at 100 kilometers per hour on the wrong side of the road, past a policeman.   Until recently, in Afghanistan, a husband could publicly be seen physically beating his wife, in the presence of police.

This behavior is unacceptable in America, as well it should be. However, we must be careful not to go to the other extreme, by punishing people for minor, harmless, or dubious offenses.  For example, an Arlington tenant was charged with trespassing - in his own home!

Proposed bill:

1. The Commonwealth Attorney staff count should be reduced in Arlington, and increased in Fairfax County, for equal distribution based on the population.

2. Prosecuting Attorneys should not be judged on how many cases they win - Quality not Quantity
    Some type of scale should be applied with care that it does not encourage up-categorizing misdemeanors as felonies.

3. A good debater could put a nun in jail for robbery.  The staff should be reminded that this is not what the public wants.

4. The Commonwealth Attorneys should not be penalized in terms of job performance, but commended, if they feel a case has no merit, or the complaining witness changes his story, and they dismiss it.

5. If the jury is undecided, the Prosecutor should carefully re-evaluate the merits of the charge, and the weight of the evidence, with the head Commonwealth Attorney, before asking for a new trial.

6. If upon appeal, the complaining witness has made statements which contradict his statements in the first trial, are review should be made to consider dismissing the charge.

For example, if a landlord or other complaining witness is repeatedly giving false or inconsistent statements against a tenant or other person, the prosecuting attorney should not continue to press the charge more than one trial.  It should be noted that if there is not enough evidence to convict on the first trial, perhaps the charge was a frame or fabrication.

7. To discourage false charges and misuse of public law enforcement resources, complaining witnesses who fabricate charges should be charged with perjury, and/or required to reimburse Arlington County for the cost of pursuing and prosecuting the victim of the false charge.  This will help make sure that the Commonwealth Attorney can focus on a higher percentage of true and serious crimes.