(Tom Barbour via Facebook)
(This is guest commentary from Jimmie Lee Jarvis, a local politics and government observer that covered the 2020 social justice protests in Richmond, Va.)
“I’ve eaten lunch with Taliban commanders who I know are trying to kill me.”
Attorney Thomas P. Barbour, Jr. is gamely entertaining a hypothetical scenario in which he is Richmond’s Commonwealth’s Attorney and protesters are holding a demonstration outside of his Church Hill home. “I’m going to go out there and talk with folks, or at least listen to them. I think that people deserve to be heard, even if they show up at your house.”
This is in contrast to the reaction of the woman he seeks to replace, Richmond’s current Commonwealth’s Attorney, Colette McEachin. Last June, a peaceful demonstration outside her home in protest of her office’s aggressive prosecution of Black Lives Matter activists was met with a heavy-handed police response that included 15 arrests.
Although McEachin claimed that she was a potential witness in those cases, and thus could not comment to the media, her office continued to prosecute the demonstrators who had rallied outside of her Huguenot home. Barbour points to that incident as one example of what he considers inappropriate behavior by the incumbent Commonwealth’s Attorney. “That is an absolute example of when you would need a special prosecutor because you’re simultaneously a potential witness and a prosecuting entity,” he said. “I don’t think that’s appropriate.”
Barbour is familiar with the inside of the Richmond Commonwealth’s Attorney’s office, having worked his way up from an intern for McEachin’s predecessor Mike Herring in 2015 to an Assistant Commonwealth’s Attorney and policy advisor on root cause approaches to crime. As a line prosecutor, he estimates that he was involved with over 1000 cases before leaving the office in 2018 to open a defense practice. He also launched a nonprofit, the Virginia Holistic Justice Initiative, which offers a “holistic, supportive intervention” alternative to incarceration for “nonviolent persons.”
Barbour, 35, graduated in 2007 from the University of Virginia with a bachelor’s degree before serving as a commissioned officer in the Marine Corps for the next 6 years – leading small teams while embedded as advisors with the Iraqi army and Afghan police. With perhaps a touch of understatement, he describes those years as a “significant experience for me.” he left the Corps as a Captain and returned to UVA to earn his law degree and an MBA from the Darden School of Business. He points to this background as making him uniquely suited to take the helm of an office that has lost the trust of many in the community. “It takes a certain kind of idealist to throw on a Marine Corps uniform and go serve post-9/11. That was absolutely who I was and who I still am. But my experiences overseas took that idealism and sharpened it to a pragmatic point.”
Barbour said seniority in the field is not what Richmonders need right now. “Colette is the senior attorney in the race, of course. But that’s not actually what the Richmond Commonwealth’s Attorney needs to be in this moment,” he asserts. “I’m running as the senior reformer, the senior public safety innovator, the senior leader and manager, frankly. I’ve been trained by the best in the world in the Marine Corps and the Darden School of Business.”
Barbour doesn’t shy away from drawing a contrast between the conduct of McEachin and how he would run the Commonwealth’s Attorney’s office if he was to defeat her in the upcoming Democratic primary on June 8. “This [current Commonwealth’s Attorney’s] office doesn’t have a published, transparent guideline system about how its prosecutors are making decisions,” he said. “The community can’t get a handle on how those decisions are made. The office is being run on a black box logic that can’t be subject to community input, it can’t be improved upon, and we can’t be sure what the policies are.”
He’s referring to the opaque and haphazard way in which McEachin has chosen to pursue charges against the hundreds of Black Lives Matter protesters arrested since the murder of George Floyd on May 25, 2020, as well as her decidedly less aggressive posture towards the Richmond Police Department officers accused of serious misconduct while cracking down on the civil unrest that roiled the city for months on end last year.
McEachin has been harshly criticized by social justice activists for her perceived permissiveness of police brutality. When asked if the current Commonwealth’s Attorney had done everything possible to hold RPD accountable for violence against Black Lives Matter protesters, Barbour flatly responds, “No, I do not.”
He continued; “Of course the Richmond Commonwealth Attorney cannot control the police department, nor should they try. But what the Commonwealth’s Attorney’s office can do is come out and be public, direct, and specific in explaining how and when police use-of-force incidents will be charged… when I’m operating in Iraq or Afghanistan, I am operating under rules of engagement. If I violate those rules of engagement, no union is going to come to my defense. I’m going to be court-martialed,” he declares.
“When I look at a tactical situation in the street, and I say to myself we can police better, it’s not an academic point of view, because I’ve actually policed people. I’ve actually trained police to work in their communities in villages and towns in Iraq and Afghanistan,” said Barbour. “What we saw in [Richmond] this summer was the police preemptively declaring assemblies unlawful without many indications that [protesters] were actually going to intend real riotous violence, and then using that declaration as carte blanche.”
Barbour said he would immediately publish use-of-force guidance if he were to become Commonwealth’s Attorney. “Day one, we would be coming out with published charging guidance for police use of force, and we would also be coming out with published charging guidance for public assemblies,” he said. “Because Richmond is a Capital city, we are going to have more First Amendment-driven events than any other place in the Commonwealth and we have to be prepared for that. Once those two sets of charging guidance are out there, they would be subjected to annual community input.”
The promise to involve everyday Richmonders in developing the standards and priorities of the Commonwealth’s Attorney is one he invokes often. It stems from a belief that only a supportive community can help divert those caught up in the criminal justice system from finding themselves back on the wrong side of the law. “The only way to do long-term crime reduction is holistic, community-driven interventions,” he said. “Police and prosecutors can do short-term violent risk-mitigation. This is possible. But the criminal justice system is not set up to do social services well.”
If Barbour seems eager to point out what McEachin has done that he would do differently, he’s less eager to fully commit to the demands of protesters, which have remained consistent since the beginning of what many activists are terming the Richmond uprising. When asked if he would go back and investigate incidents that occurred over the summer to determine if RPD officers behaved unlawfully, he responds, “On a personal level I do feel that urge. On a policy level, my goal is to prosecute better forwards, not backward. At the end of the day, Ms. McEachin and her office were duly elected for this period of time and I don’t think we should create the habit or expectation that the next Commonwealth Attorney goes backward and charges things that weren’t charged or investigates things that weren’t investigated.” When asked, he confirms that posture extends to the case of Jeramy Gilliam, an unarmed man fatally shot in the back by RPD’s current Chief of Staff Jody Blackwell in 2002.
This author witnessed police officers who seemed openly eager to participate in a culture of lawlessness to instigate conflict and engage in violence against Richmonders protesting their department in the summer of 2020, – Barbour disagrees with that assessment, however. Pressed on whether he thinks the spate of misconduct allegations against RPD indicates an endemic culture of lawlessness, he pushes back. “No, I really don’t,” he said. “I think that’s going to be an unpopular position, but here’s why: I don’t know any police officers who stuck their hand up and said, ‘I want to arrest people. I want to get in fights with people. I want to put other human beings in cages.’ Maybe they’re out there, but the police officers I know signed up to say, ‘I want to be of service. I want to do good.’”
Asked if he would re-open the case of Marcus-David Peters, an unarmed and unclothed high school teacher killed by RPD officer Michael Nyantakyi while undergoing a mental health crisis in 2018, he demurred. “That’s not something I’m going to take a public position on until I have the opportunity to speak with [Mr. Peters’ sister and independent gubernatorial candidate Princess] Blanding.”
He says such a meeting is in the works and that his campaign has been in touch with hers.
“I will say that the [police use-of-force] charging criteria I would issue on day one I think would see a different pathway in a like case. We also need to think very seriously about having a ‘do not call’ list in the Richmond Commonwealth’s Attorney’s office for officers we don’t have faith can serve as well-meaning witnesses on the stand for a variety of factors. I think this particular officer is someone we would have to consider for this list.”
When asked if the necessity of such a list contradicts the idea that RPD is free from a culture of misconduct, he responds with a laugh, “I mean a list more as a structural thing that should exist. I would treat police officers on that list in the same way I would treat people that we were prosecuting. You have to give folks due process.”
Overall, Barbour seems certain that a clear and transparent guideline system for prosecutorial discretion would defuse the controversies that have beset the Commonwealth’s Attorney’s office since Herring abruptly departed in 2018 for a lucrative partnership at the famed law firm McGuireWoods.
Barbour says his campaign platform is actively being shaped by the conversations he has with Richmonders. “I’m doing engagements with community members and stakeholders and just talking to them about policy issues of reform and public safety that matter to them. We’re chalking up these concepts and then over the course of the campaign we’ll actually put out responsive pledges.”
Should he prevail on June 8, he says the public engagement campaign wouldn’t end on election day. “What I’d like to do is work with my prosecutors to build out those guidelines as an initial matter, and then actually take them to the community and do a public input session through the wards to talk about how we are taking community preferences into account. How are we calibrating our judgment of what risks should be taken in Richmond based on community preferences or risk tolerances?”
He’s confident that the public will agree with him on the shortcomings of our criminal justice system as it stands today. “Most folks get that going to jail shouldn’t just be a punishment, it should be a risk-mitigation strategy.”
Like so much of Barbour’s philosophy and worldview, this drive to reform an overly punitive system stems from his military service overseas. “I participated in arresting people in Afghanistan, insurgents who had killed Marines. Looking into the eyes of these guys and thinking, ‘That’s just me. That’s just me on the other side of this story.’ Recognizing that the way we grow up, the conditions in which we live drive a lot of our behavior, really lead me to question how we were doing public safety in the United States.”
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