Time to follow up on criminal justice reform

West Virginia’s legislators have grappled with the human and fiscal costs of mass incarceration and prison overcrowding for the past decade.

These efforts include two major studies of the state’s correctional system and several pieces of legislation to address the issues. While there is much to celebrate, several policy measures could be taken to reduce overcrowding in the state’s regional jails and prisons in ways consistent with public safety.

Since these issues are likely to be considered in the 2020 legislative session, it might be good to look back at some of what did — and didn’t— happen.

In 2010, the West Virginia Law Institute submitted detailed recommendations to the Legislature. It found that, “Although the state itself enjoys a history of some of the lowest reported crime rates, it currently has one of the highest increasing rates of prison growth in the country that is marked by insufficient correctional resources, inadequate imprisonment statistics and minimal alternative sanctions.”

The report made several recommendations, including expanding alternative sanctions, such as: community-based corrections; adopting validated measures of assessing risks and needs of offenders; increasing substance-use and mental-health treatment facilities; creating transitional housing for parolees; presumptive eligibility for parole; sentencing reform; improved data collection; and additional research and public education.

In 2012-13, the Council of State Governments Justice Center made similar recommendations after extensive consultations. They noted that, “Between 2002 and 2012, the number of people in West Virginia’s prisons increased 50 percent, with the prison population projected to grow an additional 24 percent by 2018.” Legislation enacting some of the measures was passed in 2013.

Since those studies, the state has made progress in community corrections, risk/needs assessments, alternative sanctions, drug courts and the capacity for treating substance-use disorder. The following additional measures may be worth considering:

*Sentencing reform: According to the Law Institute report, the state “imposes some of the longest sentences in the country, sends to and keeps in prison a much higher percentage of convicted defendants rather than placing them in alternative programs, and maintains various practices that result in more people incarcerated for longer periods of time.”
It called for a review of sentencing for offenses that include robbery, burglary, forgery and uttering, shoplifting, controlled-substance possession, fraud, etc.

Excessive sentencing increases overcrowding and costs but does little for public safety. In fact, it can have the opposite effect. The longer people are incarcerated, the more difficult it is for them to successfully re-enter the community, and the more likely it is that some will commit another offense.

The institute also recommended ending the practice of charging multiple offenses for the same act and making concurrent, rather than consecutive, sentencing the default practice, unless a judge has reasons to do otherwise.

*Early release to community supervision for nonviolent offenders: The 2013 legislation included a provision for the release of nonviolent offenders to community supervision when they reached 180 days prior to the calculated discharge date.

This measure passed the Senate but was removed in the House of Delegates.

It was estimated then that this would reduce the impact of the legislation by one-third. This is a major reason why the legislation wasn’t as successful as it might have been in reducing overcrowding. The 2020 session would be a good time to revisit that missed opportunity.

*Earned time: An additional measure to consider would be allowing inmates to earn time off their sentences by completing appropriate educational and rehabilitative programs, which would improve the hard and soft skills that promote successful re-entry and post-release employment.

*Bail reform: In the 2019 regular legislative session, the deputy commissioner of the Division of Corrections and Rehabilitation told the House Judiciary Committee that, in 2018, counties paid the Regional Jail Authority over $1.9 million to jail individuals unable to post bail of $1,000 or less for misdemeanor charges.

That year, 3,750 people spent an average of 11 days in jail before being released. This amounted to a total of 41,058 days, at a daily cost of $48.25. Decisions regarding the pretrial release of accused offenders should be based on considerations of public safety, rather than poverty.
While technically bail is about jails, rather than prisons, West Virginia’s overcrowding problem is so severe that many people who have been sentenced to prison time are backlogged to even more overcrowded regional jails, which often don’t offer the kinds of programs that make one eligible for parole. This is a dangerous situation for those incarcerated in jails and for those who work in them.

Then there’s this: Keeping people who haven’t been convicted of a crime in jail just because they’re poor separates families, can cause people to lose jobs and fall even further behind economically and makes it harder for them to prepare for their day in court.

*Parole reform: West Virginia should move in the direction of presumptive eligibility for parole, a system in which incarcerated individuals with qualifying offenses are released upon first becoming eligible for parole unless the parole board finds explicit reasons to not release them.

Common-sense reforms like these could go a long way toward addressing crowding problems, saving tax dollars, promoting public safety, easing re-entry and strengthening families and communities.

(This ran as an op-ed in yesterday's Charleston Gazette-Mail.)