March 03, 2021

Another bad idea: the "trail em, nail em, jail em" bill

 For the past several years, there’s been a remarkable bipartisan consensus in the West Virginia Legislature about the need to reform the criminal legal system.

Legislation was passed easing restrictions on food assistance for people with drug felonies; removing occupational license barriers to careers; reforming bail and parole; creating and expanding expungement procedures; issuing state photo IDs to people leaving prisons; investing in recovery programs; driver’s license restoration; and creating the amazingly successful Jobs and Hope program, first known as “Jim’s dream.”

All this happened when Republicans controlled all three branches of government, although Democrats in the Legislature also did their part. People talked, listened and worked things out. The voices of affected people were heard. Changes were made.

That’s the way good policy happens.

Maybe it was because so many families have been touched by addiction. Maybe it was because people are concerned about the ever-increasing cost to taxpayers, individuals, families and communities by mass incarceration. Maybe it was because it’s becoming increasingly obvious that the “war on drugs” was about as disastrous as Prohibition. No doubt, much of these successes were because the leadership and vision of champions such as former delegate and House Judiciary chairman John Shott, R-Mercer, who retired in 2020.

People who disagree on almost everything, from taxes to education to budgets to programs, reached across divides to make these reforms happen. I think all this showed that Lincoln’s “better angels of our nature” still had a feather or two on their wings.

It was good while it lasted. While I was cautiously optimistic that this trend would continue, the recent passage of House Bill 2257 by the House Judiciary Committee might signify a move back to eternal punishment and needlessly warehousing people at the expense of all concerned.

Incredibly, the bill would allow for certain people convicted of certain drug felonies to be subjected to extended supervision for up to 10 years after they completed serving all their prison and parole time. That’s a basically endless round of surveillance and control that could result in many people being sent back to prison for noncriminal technical violations, which could include things as trivial as missing an unnecessary meeting or a curfew.

It also could require people dealing with recovery and reentry issues, most of whom have severe money and job problems because of their convictions, to pay monthly fees for the privilege of additional humiliation, degradation and supervision for years after they served their time. Such extended punishment also would rack up heavy costs for taxpayers, who would have to pay for that regimen and the inevitable costs of re-incarceration, possibly for years, for no good reason.

We’re talking “trail ’em, nail ’em, and jail ’em.”

Imagine this scenario: You’ve spent years in prison. You’ve met all the conditions of parole. Then, you’re under years of additional supervision. At some point, you unwittingly commit a technical violation. You could be back in prison at a cost to taxpayers at a cost of nearly $30,000 per year.

Are there any winners there? Is anyone any safer? As someone in Wisconsin said about that state’s extended probation — which is not nearly as expansive as HB 2257 — “Generally, the longer that somebody is looking over your shoulder and the longer you’re under supervision, the more likely it is that you may do something wrong and end up in prison.”

I once heard a conservative state senator criticize a proposed bill, with some justification, for extending the “tentacles of the state” into the lives of individuals and families.

If we’re talking tentacles, HB 2257 would be the giant-squid edition.

If we extrapolate from the West Virginia Division of Corrections and Rehabilitation’s Annual Report, HB 2257 could affect 86% of people incarcerated for drug offenses. In 2018-19, West Virginia taxpayers paid $1.38 million for people imprisoned again for technical violations. These accounted for over 13% of total admissions to prison. HB 2257 could expand this exponentially.

This measure would have a disparate effect on West Virginia’s Black communities. The NAACP has pointed out that African Americans and whites use drugs at similar rates, but the imprisonment rate of African Americans for drug charges is almost six times that of whites. This bill would do further damage to communities already disproportionately affected by mass incarceration and overpolicing.

Supporters of HB 2257 are operating in an evidence-free environment. Recent studies by the Pew Research Center and Harvard’s Kennedy School have argued that states can shorten probation and still promote public safety.

According to Pew, “Research indicates that people are at the highest risk of re-offending early in their probation terms ... . Further, studies show that after the first year, many supervision provisions, such as reporting requirements and community-based services, have little effect on the likelihood of rearrest, so keeping probation terms short and prioritizing resources for the early stages of supervision can help improve success rates among people on probation, reduce officer caseloads, and protect public safety.”

According to Harvard, “There is no evidence that this extraordinary level of supervision has enhanced public safety. Instead, research reveals that supervising individual who present a low risk of future offending enhances, rather than reduces, the risk of recidivism, while provided tripwires to unnecessary violations and incarnation and distracting community correction agencies from focusing on those most in need of supervision and support.”

Instead of jobs and hope, this could take away both. If the object of legislation is anything other than creating more unnecessary suffering, we should invest in the things that we know work: support for recovery, reentry and reintegration into our communities.

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