Longtime Public Defender Runs for Prosecutor to Fight “Family Separation”

“I saw families that were torn apart, and I saw the consequences of that,” Jim Hingeley, a candidate running in Albemarle County, Virginia, said in a Q&A. 

The United States’s enormous reliance on incarceration separates millions from their families for some period of time every year, a reality that has yet to stir a transformation of our criminal justice practices. “Every day, we lock parents up for decades in our prisons regardless of how it will affect their children, and no one bats an eye,” Sarah Lustbader of The Appeal wrote in the Washington Post last year, at the height of the protests against President Trump’s immigration policies. “Those who are demanding that children not be treated as collateral damage when it comes to immigration should be just as vocal when it comes to criminal sentencing.”

A candidate for prosecutor has picked up the challenge in Albemarle County, the Virginia jurisdiction that surrounds Charlottesville. “Family separation is not just an ICE policy,” Jim Hingeley wrote on Facebook this month, linking it to pretrial detention and mass incarceration. Hingeley was the chief public defender of Albemarle County and Charlottesville from 1998, when he opened the office, to 2016. He is now running as the Democratic nominee against Commonwealth’s Attorney Robert Tracci, a Republican.

I talked to Hingeley last week about his concerns regarding family separation, and why he thinks the prosecutor’s office is a place from which to fight it.

“I saw families that were torn apart, and I saw the consequences of that,” he replied, alluding to people he represented as a public defender. He argued that family separation creates challenges for reentry and aggravates isolation, pointing to prisons’ geographic remoteness and to the way pretrial detention cuts people off from the resources they need for a strong defense. He also evoked effects on children, who studies have found experience more hardships when a parent is incarcerated.

Prosecutors have the discretion to alleviate these problems via charging or sentencing decisions that divert more people from incarceration, and Hingeley said he would pursue approaches to keep more people “in the community” and “out of jails and prisons.” For one, he has pledged to not seek cash bail, which keeps people detained pretrial over a financial inability to pay.

He also said he wants to charge more cases at the misdemeanor level, instead of the harsher felony level. In Albemarle County, a higher share of the more serious arrests result in felony-level convictions than in most of the state’s other large jurisdictions, according to an analysis published by Justice Forward Virginia, a nonpartisan political action committee.

Reducing charges in this way would make people eligible for diversionary programs they would otherwise be barred from, so that their offense triggers consequences other than incarceration. Lower charges can also mean shorter sentences in cases where prosecutors do recommend incarceration, and fewer collateral consequences. State law provides that anyone who is convicted of a felony loses the right to vote for life, and Tracci, the incumbent prosecutor, joined a legal brief in 2016 against then-Governor Terry McAuliffe’s attempt to counter this rule. By contrast, Hingeley said he applauds McAuliffe’s policy, and that he would be mindful of the loss of voting rights when deciding whether to charge an offense as a felony.

Other candidates are running for prosecutor elsewhere in Virginia on a platform of ending mass incarceration (including another former public defender in Arlington, further north). Hingeley said he is keeping an eye on their races in hope of forming an alternative to the politics of the Virginia Association of Commonwealth’s Attorneys (VACA), the group that lobbies on behalf of state prosecutors. Hingeley called VACA “a very regressive force in the legislature.” “If I’m elected and other progressive prosecutors are elected,” he added, “we would be small in number, but we can constitute a different voice.”

The interview has been condensed and lightly edited for clarity.

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Earlier this month, you wrote on Facebook that “family separation is not just an ICE policy,” that it’s a reality that applies to mass incarceration writ large. In recent years, “family separation” has been mainly used in the context of describing President Trump’s immigration policies. So what does it mean to you to frame other criminal legal practices with those words, and what does this mean for how you would approach your work as a prosecutor?

I started two public defender offices in Virginia, and for eighteen years I was the head of the public defender’s office in Albemarle County, where I’m running for prosecutor. It’s that background that has made me sensitive to the issue of family separation because so many of the people I’ve represented were deeply affected by their incarceration, and their prospects for success after incarceration were very considerably diminished because of family separation. I saw families that were torn apart, and I saw the consequences of that.

The resources that people had through their family connections and community connections, things that might have been able to get them through the criminal process with better outcomes, were lost once they were incarcerated. And then you saw people who would go to jail while they were waiting for trial, and could maintain some contact with family and community, but after they were sentenced, most often the state prisons where they went sent were very far away from their families and communities. I became sensitive to that, and concerned about that, through my experience as a public defender.

Since I’ve been running for prosecutor, I’ve been talking about mass incarceration, and I’ve had interesting conversations, particularly with teachers who volunteer that, “Yes, I have seen that, I have seen the effects of mass incarceration in my classroom, of having a parent incarcerated, being removed from the community and sent far away.” One of the effects of incarceration and family separation is that we’re creating problems with the families that are left behind. Teachers are concerned that children then have discipline problems, health problems in greater frequency because the family’s ability to care for them has been diminished, and they get on the path, for some of them, to get in contact with the criminal justice system themselves.

In the same Facebook post, you call for “end[ing] mass incarceration.” That echoes language you’ve used elsewhere; you said you’re “entering this race because our community can and should end the politics of mass incarceration.” Why do you think the prosecutor’s office is the place from which to pursue such a goal?

There are a lot of ways that you can attack mass incarceration. I think that the prosecutor can make a difference starting on day one. The prosecutor has an enormous opportunity to change things. I can, as a prosecutor, advocate for more community treatment. That’s a big issue for me: I want to keep people in the community. One reason is that it lessens the number of people who are going to be separated from their family and from community resources. The prosecutor can make recommendations, and choose charges to pursue that would lead more often—which is my goal—to keeping people in the community and keeping them out of jails and prisons, which are really terrible places for people to be.

So the prosecutor has that ability to change outcomes. Another outcome I want to change that affects mass incarceration is that there are some cases where a jail sentence is an appropriate disposition given all the circumstances, but what we see now are jail and prison sentences that are excessive, that go on way past any need for incarceration to protect the public. They go on too long, and they cost a lot of money, and they’re not accomplishing anything. The prosecutor can make recommendations or enter into plea agreements for jail sentences that are sensible ones, rather than ones that are excessive.

So the prosecutor has the power to influence outcomes in this respect too, though I am mostly concerned for finding opportunities to keep people in the community and out of jail altogether.

So what are strategies you would use when it comes to charging decisions (whether to charge, how to charge) to decrease reliance on incarceration?

We have a couple of programs already in the community. I want to use those programs. One is drug court, and one is called a mental health docket. The mental health docket is a way to divert people for potential jail or prison sentence into treatment into the community for mental illness. We criminalize mental illness way too much, and this is a strategy to change that.

The mental health docket, as it presently is constituted, accepts people who are high-risk offenders at the misdemeanor level. That’s the target population, and that’s another thing I would like to do, expand the drug court, mental health and therapeutic docket. But that’s another issue. Just taking it as it is, if you’re charged as a felony, you are ineligible for the mental health or therapeutic docket, so there’s a charging decision I can make as a prosecutor to reduce a charge from a felony to a misdemeanor, and make a person eligible for a therapeutic docket.

There are many other ways in which charging decisions, particularly reducing charges, can result in a change in the likelihood that someone will be facing a prison sentence as opposed to facing some kind of sanction that keeps a person in the community. I would look for those opportunities as well, outside of the structured mental health docket, to reduce charges that would make it more likely that a person could stay in the community.

Another commitment you have made that would impact detention is to “end cash bail.” What is the scope of this promise? Are there circumstances in which your office would still seek cash bail, and how will you ensure that this reform serves to reduce pretrial detention?
My policy, and I’ve committed to this, is that I won’t ask for cash bail. That doesn’t mean that I won’t ask for people to be held in custody. I’m certainly not taking a position that everybody gets out on no cash bail. I think we should presume that somebody should be released, that’s what’s our system is until adjudication: I think people should be allowed to be in their community, staying with their families, supporting their families, maintaining employment, all the positive things that happen when you can stay in the community. But there are some people who are dangerous, and if the case is made out that they shouldn’t be released, then my position is they shouldn’t be released. I would still maintain the option of asking for people to be held without bail, but I would not ask people to be released on a cash bail.
So the policy would be a presumption of pretrial release without bail for anyone that your office does not deem to be dangerous, as you put it?
That’s right. Also, we have a very good system in Albemarle County of pretrial supervision. It’s been proven time and time again that pretrial supervision is far better in terms of ensuring that people will come to court when they should, and that they won’t get in trouble in the community while they’re waiting for their trial. The other thing about pretrial supervision as opposed to cash bail is they provide you assistance and resources that can be very beneficial when you come to trial. They will help you find employment, they will help steer you toward drug counseling. You get none of that with cash bail. My position against cash bail is partly rooted in the notion that cash bail doesn’t really accomplish what it’s supposed to, but it’s also rooted in the notion that the alternative which is pretrial supervision is very beneficial for some people. The people that have needs can have those needs addressed, and it puts them in a much better position at trial and makes them much more likely to be candidates to be kept in the community after trial. 
I want to return to a statement of yours I read earlier, on “the politics of mass incarceration.” Who do you think are the main culprits today in promoting this politics? The Virginia Association of Commonwealth’s Attorneys is for instance an important lobbying force in the state. How would you characterize the role that they’ve had, and who are other actors you are thinking of?
The most immediate actor I’m thinking of is the current prosecutor; he’s driving up felony prosecutions, he’s contributing to mass incarceration. I think the legislature is a culprit because people in the legislature like to run on a tough on crime record, and this has been going for years and we keep getting tougher and tougher. Where is this ever going to end? Once you have tough laws, you run the next time and you want to have tougher laws. I’ll give you an example: One of the big problems with mass incarceration is mandatory sentencing. We keep getting more and more mandatory sentencing. Going back to an earlier question you asked me, what can I do as a prosecutor to change things, one thing is in charging decisions: If we have a case that has a mandatory sentence, we can change the charge to one that doesn’t have a mandatory sentence so we can look at what the options should be in fairness and justice rather than having our hands tied with a mandatory sentence. That’s just one example of legislative action that contributes to mass incarceration. 
Let’s talk about the prosecutors’ association: The prosecutors’ association feeds into that because every law that comes in front of the Virginia General Assembly, the prosecutors are there to advocate for their position, and my experience is that their position is to say let’s make things tougher. I’ve worked in the legislature as an advocate and I’ve actually fought against the prosecutors’ association. I worked for three years to get a law passed in Virginia that allows ex parte communications with the judge in capital murder cases to get expert assistance. That’s an issue that prosecutors dug their heels in on. Basically, when a poor person is represented by appointed counsel in a capital murder case and they need expert assistance to develop their defense, the only way that they can get funding is to ask the court to provide public funding, and they have to demonstrate their need. Up until this law passed the way they would demonstrate that need would be telling the court everything about their defense, while the prosecutors sat there and listened. It was horrible, just horrible. If you have the money, you could get your experts in private and never expose very sensitive information to the prosecution. So I became an advocate for changing that, and the prosecutors were outraged that they were losing the advantage. It took 3 years, it was a huge effort and we rallied a lot of support, but we got it done.
I’ve worked against the prosecutors’ association in the legislature on behalf of poor people, and I’ve seen how it works down there. The prosecutors’ association is a very regressive force in the legislature. If I’m elected and other progressive prosecutors are elected, we would be small in number, but we can constitute a different voice. That’s something I’m very anxious to do if I’m elected, to be an advocate in the legislature for progressive change in the law.
Indeed, there are many candidates running in Virginia on a platform of ending mass incarceration. One such candidate (Steve Descano) told me in the spring that he hoped to put together a “coalition” of reform prosecutors that would “act as a counterpoint” to the politics of the current prosecutors’ association. Is that the kind of thing you are thinking about as well? Would you look to be part of such a statewide alliance if elected? 
Absolutely, yes. I’m not sure we can change the prosecutors’ association’s views, but I think we can constitute a segment of the prosecutors that are advocating for more progressive change in the law. Steve Descano [in Fairfax County] is one of those. We have to wait until the election, but I think Steve is going to be there, Parisa [Dehghani-Tafti, in Arlington County] is going to be there. I definitely want to team up with them, absolutely. And we all know each other, and we are all rooting each other on, let’s put it that way.
In 2016, your opponent Robert Tracci joined a brief in support of a lawsuit against Governor McAuliffe’s initiative to restore people’s voting rights after they completed a sentence. The legislature considered a constitutional amendment that went farther: It would have abolished disenfranchisement, including for incarcerated Virginians. Do you think anyone should be disenfranchised at all due a conviction? If so, when should that disenfranchisement end?
That’s a very important issue, and it’s one that I’ve been very involved in. In Virginia, you lose your right to vote if you are convicted of a felony, and the only person who can restore your rights is the governor. I am very interested in restoration of rights. I see it as part of reentry, and we need to do a whole lot better job on reentry than we’re doing, and one of the aspects is that you should be able to be a citizen engaged in the community even though you have a felony conviction once you reenter. So I applaud Governor McAuliffe and the other governors who have tried to liberalize the restoration process. I do believe that we need to restore rights, and I think it’s very important as part of the reentry process, and just as fundamental justice. We believe in second chances and people paying their debt to society, and then we load them up with consequences that will follow them for a lifetime.
I want to go back to a question you asked earlier about charging decisions: Because I’m so concerned about losing the right to vote for felony convictions, I’m also going to be looking at felonies to misdemeanors so it doesn’t happen in the first place, so people don’t have to lose their right to vote and have to get it back.
So, in moments of charging decisions, the voting rights consequences of a felony conviction is one of the factors you would have in mind?
Yes. It’s one of the factors. It’s not the only factor, but it’s an important factor and I think that prosecutors should keep it in mind.
To clarify what you mean when you say that rights restoration is important for reentry: Governor McAuliffe’s executive action restored people’s rights after they completed their sentences. Two states reformed their rules this year to go further and restore rights when people are released from incarceration. Would you favor such a policy?
I would be absolutely in favor of restoration at the time of release from prison, and not deferring restoration until after probation and parole or other conditions of the sentence. That’s what I meant from reentry; reentry from prison, not reentry all the other parts of a sentence.
You created a Citizens Advisory Committee while a public defender, and you have said that you will adopt a similar initiative in the prosecutor’s office to get the community more involved in the criminal legal system. What do you hope this accomplishes, and also how would you make sure that community engagement has repercussions, as opposed to being for show?
I guess that’s always going to be a question, whether it’s for show. But I’m very serious about it, and I’ve had very good experiences with the citizens advisory committee I started in the public defender’s office, so that’s a model. There are lots of ways that the community can be engaged, and you don’t necessarily need a committee. The idea I have for a committee is that it provides an institutional place for entry into the engagement with the prosecutor’s office. Just the fact that it has an institutional presence is I think of some value. 
Let me give you an example of one thing I want to do with the community advisory committee: We have racial disparities in the criminal legal system. One of my issues is, I want to end racial disparities. That’s a lot to do, to be sure, but that’s on my plate. What occurs to me is it’s very much behind the curtain. One of my goals if I’m elected is to compile information about prosecution decision-making and race in the prosecutor’s office. Like plea agreements: You see plea agreements, but you have no idea inside the prosecutors’ office who gets offered pleas. But you can find that out, or at least you can get data about that if you make a conscious effort to do that. I am going to do that if I’m elected. And this is something that the citizens’ advisory committee can work with me on, in terms of developing instruments to measure race and prosecution decision-making, and in terms of interpreting and reviewing the data as those are developed. 
You are running in a county that surrounds Charlottesville, home to a white nationalist rally in 2017. What was your reaction to those events in terms of race and racial disparities in Virginia’s criminal legal system?
I certainly think that the consequence of those events of August 2017 is something that informs my view. It’s opened up a very important community conversation about racial justice, and racial justice is something that’s very intricately involved in the criminal justice system. A part of my reaction has been that I welcome that community conversation that has happened after those event on the subject of race, and that’s helped to inform my view as I seek this prosecutor’s position.   

Earlier you talked about reducing excessive sentences as a component of your approach. We’ve discussed some examples of reducing charges to the misdemeanor level, but I want to ask you about higher-level offenses as well, and how sentencing looks for those. You have committed to not seeking the death penalty. Nationally, there are also efforts to scale back other sentences like life without the possibility of parole sentences. What is your position on whether to curb the use of such sentences?

As part of my overall approach, I would be very interested in looking at ways to reduce sentences, including what you’re calling the higher-level offenses, violent offenses. I’m open to looking at that. I think some people like to draw a bright line between nonviolent and violent offenses, and I understand that. Certainly whether there’s violence is an important factor, and you especially have to look at that in terms of community safety. But I think if we’re going to try to fundamentally change the criminal justice system, we have to also look at some of these top-level offenses. There’s a whole lot of literature out there on people who age out of criminal behavior, and when they age out of criminal behavior they age out whether it’s violent behavior or nonviolent behavior. So we have to look at the whole picture here, and I think we need to have in mind ways of reducing sentences even for top-level offenses in appropriate cases. That’s where good judgment comes in. I don’t think you can prescribe a scale, but I think you have to be open to that, and I am open to that.

I was struck by a statement on your campaign website, in a section titled “treat kids like kids,” that “the adolescent brain continues to develop until around the age of 25,” and I was struck because more often than not we treat the age of 18 as this absolute cutoff for the youth justice system (and in fact we often treat many people way under that age as adults). So what does that sentence mean for how you would approach the issue of who is prosecuted as an adult?

There are two aspects to this. The first aspect is, how do we treat kids who are under 18? We have the ability in Virginia to treat kids under the age of 18 as adults for purposes of criminal prosecution. One part of my approach to treating kids like kids is that I’m not going to be likely to pursue the right that prosecutors have to transfer children under the age of 18 to adult court to be tried as adults. I want to keep kids in juvenile court. Juvenile court is the place that we have to keep those kids so we can a better chance of breaking through to solve the problems that are leading them into contact with the criminal justice system. 

Part two, and I think that’s a good question that you asked, is what about adults who are 18 but who are young adults and who are developmentally not fully adult? I do want to look at them in a different way, and this comes down to my thinking about mass incarceration, my desire to keep more people in the community than we are doing now, keep more people out of jails and prisons, or for people who are in jail keeping their sentences shorter. One of the factors that will go in decision-making when I have cases of adults that are older than 18 but younger than 25, is what effects that brain development and the science that we have on brain development may have played in the offense that we are looking at. How exactly it would weigh I cannot tell you because it depends on each case.

Would you want the legislature to establish circumstances in which young adults over the age of 18 could still be treated in the youth justice system? 

I haven’t thought through the details of this. I think we do have a gap in our system, because of this whole issue of brain development. We have juvenile court up to age 18, and then we have adult court, and I think there is room for an intermediate process, so I could be an advocate for that.