Embracing the mantle of criminal justice reform, progressive prosecutor candidates won key races across the country and the Commonwealth of Virginia in 2019.
Philadelphia District Attorney Larry Krasner, a progressive prosecutor’s progressive prosecutor, identifies as a “public defender with power.” When campaigning for office, Suffolk County Massachusetts District Attorney Rachael Rollins pledged a default nonprosecution policy for a range of offenses, including shoplifting, malicious destruction of property, drug possession with intent to distribute, and resisting arrest. Chesa Boudin, San Francisco’s newly-elected district attorney, announced that he will not prosecute cases involving “quality-of-life” crimes such as offering or soliciting sex, public urination, and blocking a sidewalk.
All of these prosecutors have fraught relationships with the police.
Fueled by massive campaign expenditures and donations from the George Soros-backed Justice and Safety super PAC, progressive prosecutor candidates also successfully primaried two of Virginia’s most accomplished elected prosecutors, known as commonwealth’s attorneys, in Arlington and Fairfax counties. And as Albemarle County’s elected commonwealth’s attorney, I recently lost the election to a well-financed, Soros-backed “progressive prosecutor” who pledged to “transform” the justice system on “day one.”
I don’t contest the fair outcomes of these elections, including my own. But none should doubt the consequences of prosecutorial decisions driven by ideology rather than fidelity to our laws and Constitution.
Like the U.S. Constitution, the Virginia Constitution diffuses power among the legislative, executive, and judicial branches. The Virginia General Assembly enacts criminal laws and affixes statutory penalties for their violation. Virginia Commonwealth’s Attorneys bring criminal cases, and judges (or juries) ascertain guilt and determine sentencing.
The duty of a commonwealth’s attorney to prosecute felonies ensures that citizens are accorded the dignity, security, and equality that proceed from the law’s faithful application. Virginia law states: “The attorney for the Commonwealth shall be a part of the department of law enforcement of the county or city in which he is elected or appointed, and shall have the duties and powers imposed upon him by general law, including the duty of prosecuting all warrants, indictments or informations charging a felony …”
To sacrifice this duty to a political, ideological, or reform agenda infringes on Virginia law and derogates the oath upon which the authority of a commonwealth’s attorney depends.
Prosecutors may use discretion when bringing charges, but like judicial discretion, its exercise must reflect circumstances unique to each case. Some progressive prosecutors claim boundless discretion. But discretion does not and cannot empower a prosecutor — or any law enforcement officer — to vitiate the law by refusing to enforce it. Prosecutors must seek justice, not frustrate its fair administration by subverting laws they have a legal and professional obligation to enforce. Unlimited discretion transgresses the separation of powers and transforms prosecutorial discretion into a weapon of statutory nullification. This is neither humility nor compassion, but the crude exhibition of political power our tripartite system reserves to legislators and judges.
Until very recently, the core law enforcement function of a prosecutor was evident to anyone with a passing knowledge of our justice system. Those seeking “justice reform” sought legislative office or changes to the law. No longer. While some cheer the political outcomes “progressive” prosecutors effectuate, none should applaud the extralegal and anticonstitutional means by which they are being realized. A “conservative prosecutor” movement that flouts our laws and Constitution would be no less corrosive to the American system of justice. Intellectual honesty requires rejection of ideologically-driven prosecution — in whatever strain it manifests.
Elections have consequences, including those for the elected prosecutor. But no election can transform a prosecutor from a law enforcement officer into a supraconstitutional plenipotentiary or authorize a prosecutor to transfigure the justice system by abrogating the obligation to apply the law faithfully.
No election can empower a prosecutor to sacrifice public safety to political ideology, legitimize disrespect for our laws and those who enforce them, or deny crime victims the voice, dignity, and justice our laws demand. And no election can permit a prosecutor to prejudice the administration of justice by arbitrarily declining to enforce laws enacted to promote justice.
In America, nobody is above the law, including those with a duty to enforce it.
Robert Tracci was elected Albemarle County commonwealth’s attorney in 2015. He had previously served as special assistant U.S. attorney and deputy assistant attorney general at the U.S. Department of Justice.
