One big prison yard?

 Last year, the Legislature passed a bill creating a sentencing commission to jump start reforms in the criminal justice system.

There was a consensus that West Virginia’s penalties were out of sync and, often, more severe than those of neighboring states, at great expense to the public and without making anyone any safer.

As then chairman of the House Judiciary Committee John Shott, R-Mercer, said: “Among the many challenges facing our state, the reform of our criminal justice system is one of the least publicized. To keep this in context, we have a system in which we are 20 to 25% over capacity, and our prisons, our regional jails are overflowing.”

And that was before COVID-19 hit, which makes the issue of reform even more urgent.

The pandemic slowed the work of the commission, but things are starting to move.

Unfortunately, even before the commission gets down to the heavy lifting, proposed legislation in the House of Delegates would drastically rewrite the state’s criminal code before the process has a chance to work.

The measure in question, House Bill 2017, is truly gargantuan. The introduced version was no less than 391 pages. At present, it’s up to 411 pages. It was sprung on the House far too late in the session for members to digest the implications of what they’re going to vote on.

While the bill is no doubt well intentioned, it was crafted without consulting with prosecutors, public defenders, judges, others who work in the system or advocates — much less those directly affected.

If enacted, the bill would increase prison sentences for many offenses (with some exceptions), while also delaying parole eligibility. In particular, it changes many sentences from an indeterminate system, which provides some flexibility, to a determinate system that often would increase the minimum and maximum sentences.

This also would have the effect of reducing the incentives for people in prisons to participate in rehabilitation, education and/or recovery programs, since they would have to serve longer before being eligible for parole.

One provision of the bill that seems especially harsh would increase fines for many offenses and even require some inmates to pay the cost of their incarceration. Since people with low incomes are more likely to get caught in the system to start with, this would increase debt of those families and contribute to the criminalization of poverty.

According to the American Action Forum, which describes itself as center-right, “Adults in poverty are three times more likely to be arrested than those who aren’t, and people earning less than 150% of the federal poverty level are 15 times more likely to be charged with a felony — which, by definition, carries a longer sentence — than people earning above that threshold.”

The Prison Policy Initiative reports: “Poverty is not only a predictor of involvement with the justice system: Too often, it is also the outcome. Criminal punishment subjects people to countless fines, fees and other costs (often enriching private companies in the process). A criminal record, meanwhile, does lasting collateral damage.”

Rather than gallop to a premature decision, a wiser step would be to refer the ideas contained in HB 2017 to the sentencing commission so that its provisions, along with the ideas of others familiar with all aspects of the system, can be evaluated in consultation with all stakeholders.

In the meantime, lawmakers might do better to focus on reforms to reduce mass incarceration and its cost to individuals, communities, families and taxpayers.

(This ran as an op-ed in the Charleston Gazette-Mail.)

Guilty until proven wealthy

 It’s often said that, in the American legal tradition, a defendant is innocent until proven guilty. Unfortunately, these days, it’s more like guilty until proven wealthy.

I’m talking specifically about the cash bail system. At any given time, as many as 700,000 Americans are locked up in jails. According to the Pretrial Justice Institute, most of these people haven’t been convicted of or even tried for the crimes for which they were arrested.

The reason most of them languish in overcrowded jails has no necessary connection to public safety. It’s because they can’t afford cash bail.

Now, that’s criminal. Specifically, it’s the criminalization of poverty.

As far back as 1964, U.S. Attorney General Robert Kennedy observed that bail had become “a vehicle for systematic injustice.”

In testimony to the Senate Judiciary Committee, he wrote: “Bail has only one purpose — to insure that a person who is accused of a crime will appear in court for his trial. We presume a person to be innocent until he is proven guilty, and thus the purpose of bail is not punishment. It is not harassment. It is not to keep people in jail. It is simply to guarantee appearance in court.”

Things have gotten much worse over the years. The Vera Institute of Justice notes that pretrial detention increased by 433% between 1970 and 2015. It’s probably gotten worse over the past six years.

According to national data, the median bail set for a felony charge is around $10,000, in a country where 40% of the population would have trouble coming up with an unexpected $400. Even if the accused person or the family can raise that money with a bail bond agent, they will lose a percentage of what they coughed up. Many times, the accused will be found not guilty or the charges will be dropped.

The racial bias inherent in this system is glaring: While Black Americans make up 13.4% of the U.S. population, they account for about 40% of Americans in pretrial custody. In any case, we’re overwhelmingly talking about poor and working-class people.

What happens to people held in jail because they can’t afford bail isn’t pretty. It takes only a few days to put people at risk of losing jobs, homes or child custody. Family members — and especially children — can be traumatized. And a lot of bad things can happen in overcrowded jails. The effects can last for generations.

People who can’t afford bail also are more likely to be given harsher sentences or accept plea deals, just to get out at some point.

It’s also expensive to taxpayers. In a 2017 report, the Pretrial Justice Institute estimated that the United States spends about $14 billion “to detain people who are mostly low risk, including many whose charges will ultimately be dropped.”

Even though the Legislature overwhelmingly passed a bail reform bill last year, the jail numbers in West Virginia have increased. As reported on March 15, the population in West Virginia’s regional jails has jumped to 6,135. The actual capacity of those jails is 4,265. This means that regional jails are about 43% over their capacity. Of these, approximately the same percentage is being held for pretrial.

All this occurs in the context of the COVID-19 pandemic, where risk of infections and community spread are high because of the constantly churning jail population. Many have pointed out that a stint in jail for a minor offense could be a death sentence.

It wasn’t always that way. As recently as April 16, 2020, the regional jail population was as low as 4,085 because of steps taken to reduce the jail population to slow the spread of the virus — and there was no spike in the crime rate. But the population rapidly increased again as things returned to “normal.”

Under the 2020 reform bill, judges or magistrates must hold a hearing within 72 hours for people who are incarcerated because they can’t afford bail. Incredibly, a new measure, House Bill 3106, would increase the period someone waits in pretrial for a hearing to 10 days, making a bad situation much worse.

Even aside from the impact on incarcerated people, their families and public health, this would have a huge cost on taxpayers. Counties owe $48.25 per day for each inmate in a regional jail, and at least 10 counties are behind in payments to the tune of millions of dollars. When counties fall behind, the state picks up the difference.

If we use the March 15 numbers reported by the state, there were 2,672 people in pretrial detention, at a cost to counties of $128,924 per day. At 10 days, we’re talking $1,289,240. And many people who can’t make bail are held for weeks and months.

Clearly, HB 3106 would be a step in the wrong direction for all concerned. Rather, West Virginia would do well to continue on the path to reform and ultimately abolish a system that bases personal liberty solely on the ability to pay.

(This appeared as an op-ed in the Charleston Gazette-Mail.)

The bad and the ugly (good being in short supply): a WV legislative update

As you may have noticed, the WV legislature is in session and the intent seems to be to burn everything down and lock everybody up. My comrade Lida Shepherd recently prepared an exhaustive update on criminal law legislation that is or may soon be in play. It's probably more than you want to know--we wish we didn't know it too! Oh, yeah and probably more bad stuff has been introduced since...and this is only the bad criminal law stuff. Some of the other stuff is as bad or worse. Enjoy!

Criminal Justice Reform Legislative Update  - current as of Friday, March 5th  

Here are the bills we have our eye on… 

Positive bills we support

HB2094.            Ensures restorative justice can be used in any juvenile case when all parties agree    PASSED HOUSE! 

 Needed action: Please contact Senate Judiciary members and ask they support HB 2094 to help advance restorative justice practices in West Virginia.  HB 2094 recognizes the positive impact restorative justice can have for our kids and our communities. And while a lot of work remains to increase capacity to implement these programs, this bill ensures that a restorative justice process will be an option in any juvenile case if all parties agree to participate. 

Read and share “You cannot be tougher on crime than preventing it in the first place- Delegate Graves hopes restorative justice can help offenders” – Gazette-Mail, Feb. 27

 HB2552.            Removes the one-time limit on the expungement of certain criminal convictions

HB2553.            Reinstates the juvenile justice reform oversight committee

HB2305.            Creates a tax credit for hiring people with certain qualifying criminal convictions

HB 2864             Restores voting rights for people on probation or parole

Needed action: More sponsors! 

Other positive bills yet to be introduced but be on the lookout for:

·       “Ban the box” on state job applications

·       Reentry bill to allow for 180 day early release to community supervision and enhanced funding for transitional housing and reentry services

·       Ending felony murder rule for juveniles 

Bills that are THUMBS DOWN

The following we oppose because they either enhance criminal penalties or shift cost burdens of incarceration,  instead of reducing our reliance on incarceration and extended punishment.   

HB2257.            Subjects people convicted of most drug felony crimes with up to 10 years of extended supervision – PASSED HOUSE

Needed action: Contact Senate Judiciary committee members and ask them to not consider HB 2257 

Talking points: I am asking you to please NOT take up HB 2257 in Senate Judiciary, a bill that is NOT smart on crime.  This bill would add up to 10 years of extended supervision for people with drug offenses after they complete underlying sentence, including any period of parole. Violation of the supervision would result in additional incarceration of up to 10 years. HB 2257 is NO JOBS AND HOPE: instead of creating pathways to employment, stable housing, and drug treatment, this bill would subject people to more supervision, strap them with additional fees, and make it more likely that they return to prison. All of this will drive up recidivism, put more strain on families, and cost West Virginia taxpayers more money.  

Read and share “Major Step Backwards for Criminal Justice Reform” – WV Gazette-Mail, March 2nd 

HB2017.            Rewrites the Criminal Code

Read and share WV Criminal Law Reform Coalition blog HB 2017, a massive sentencing rewrite, enhances penalty for over 200 felonies and why we strongly oppose this bill as introduced

HB 2747             Transfers parole board to the Office of Administrative hearings – To Veteran Affairs committee

HB2184.            Increases the penalties for exposure of governmental representatives to fentanyl or any other harmful drug – PASSED HOUSE

HB2253.            Creates new penalty for to forgery and other crimes concerning lottery tickets – PASSED HOUSE

HB2563.            Requires certain municipalities to pay for the incarceration of inmates - To Political Subdivisions then Finance

HB2379.            Makes criminal invasion of privacy a felony  - To the Judiciary

HB2310.            Relates to death penalty for first degree murder  - To the Judiciary then Finance

HB2377.            Apply death penalty for first degree murder of law enforcement officer or first responder - To the Judiciary

HB2273.            Dividing pretrial detention jail costs between arresting authorities - To the Judiciary then Finance

Please also check out WV Criminal Justice Reform Facebook page for news and updates. 

Thanks for your interest!

COVID and jails: stop the spread

CHARLESTON, W.Va. - As the number of COVID-19 cases in West Virginia jails skyrockets, advocates for incarcerated people are urging Gov. Jim Justice to follow recommendations in a new report to curb the spread.

As of December 1, more than 1,150 people serving time and correctional officers have contracted the virus, according to Lida Shepherd - program director with the American Friends Service Committee.

With regional jails at 35% over capacity, she said state officials should reduce pretrial detention and release anyone close to their parole date who isn't a threat to public safety. Those suggestions are in a study by the National Academies of Sciences, Engineering and Medicine.

"An outbreak anywhere reduces our state's overall ability to get this virus under control," said Shepherd. "And so, that's why it's just critical that the governor really take action to prevent them - not just respond to when they happen, but to really prevent them through some of these recommendations."

The state Legislature had passed House Bill 2419 before the pandemic, which aims to reduce the number of people being held pretrial for low-level misdemeanor charges.

But Shepherd said she thinks, even with jails and surrounding communities becoming pandemic hotspots, the new law isn't really being applied.

Not using the new law creates what's known as "churn" in regional jails - where a lot of people are entering for short periods and then exiting, Shepherd said.

"In the midst of a pandemic, that obviously has some pretty dire consequences, as we are now seeing play out in some of our regional jails," said Shepherd. "With the virus being introduced not only necessarily by inmates, people who are coming into the system, but of course, by staff as well."

The report also recommends that people not be reincarcerated for minor, technical parole violations. Shepherd said not only would this help stop the spread of COVID, it could help restore lives and reunite families.

(Note: this news story was published by the WV News Service, a local affiliate of the Public News Service.)

Country roads, let them drive

I hate to admit it, but “Country Roads” isn’t my favorite West Virginia song. I’m not even sure it would make my top 10, assuming I knew that many.

The song has, however, given a clever nickname to House Bill 4958, an amazingly good bill that passed the House and is up for consideration in the Senate.

The nickname is “Country Roads, Let Me Drive.”

The bill in question would solve some huge problems, including providing a boost to the state’s notoriously low workforce participation rate. Basically, it would end the practice of suspending drivers’ licenses for people who can’t afford to pay court fines and fees.

Instead, it would create payment plans for those who can’t afford to pay the full cost, while also allowing them to drive. It’s also retroactive, meaning that people whose licenses are already suspended for those reasons can be eligible to participate.

This makes sense for all kinds of reasons.

Let’s start with the basics: West Virginia is a rural state with over 24,000 square miles of territory and 39,000 miles of roads. Most people who live here aren’t in a position to walk to work, to shop, to pick up kids or to seek medical assistance.

There are some great public transit systems in the state, but there are huge areas without them. Even if you live in a place with public transportation, it may not synchronize with your work schedule or other family timelines. And it would be a bit awkward to carry a week’s worth of groceries on a crowded bus.

This is a huge problem nationwide. In an October story, ABC News reported that 11 million Americans can’t drive because they can’t afford to pay off fines and fees.

I assumed that the number of people affected by this in West Virginia would be pretty high, but I was stunned when the state Division of Motor Vehicles reported that this affected an estimated 100,000 West Virginians. That’s roughly one out of every 20 people, or 5.5% of the population.

It’s an even bigger chunk when compared with the state’s workforce, which last fall was reported to be around 763,000.

West Virginia has long had the unfortunate distinction of having the lowest workforce participation rate. Last fall, ours was reported to be at 54.8%, compared with a national average of 63%.

It’s a pretty safe bet to assume that most of the 100,000 West Virginians who can’t drive for these reasons are of working age. Passing HB 4958 would remove a major obstacle to work and would help break the cycle of poverty for many West Virginia families. It would ease the path to recovery and/or re-entry for people dealing with addiction issues or legal issues.

It would also be a winning proposition for courts and agencies that are owed fines. In the year after California ended the suspension of drivers’ licenses for nonpayment, the state reported an 8.9% increase in non-delinquent collections. This was attributed to creating payment plans based on ability to pay.

In West Virginia and around the country, there’s a growing consensus across the political divide that driving while poor should not be a crime.

I hope the state Senate seals the deal.

(This came out as an op-ed in the Charleston Gazette-Mail earlier this week. The bill's chances are pretty good at the moment.)

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.)

Needed: a real second chance

One of the biggest victories in the last WV legislative session has the passage of Senate Bill 152, which allows for the expungement of some misdemeanor and felony convictions. Recently, the New York Times reported on a Michigan study of what that can mean to people.

Here's the good news:

"...people who get expungements tend to do very well. We found that within a year, on average, their wages go up by more than 20 percent, after controlling for their employment history and changes in the Michigan economy. This gain is mostly driven by unemployed people finding work and minimally employed people finding steadier positions."

and:

"...contrary to the fears of critics, people with expunged records break the law again at very low rates. Indeed, we found that their crime rates are considerably lower than those of Michigan’s general adult population. That may be in part because expungement reduces recidivism."

The bad news was that only small percentage of eligible people actually got the expungements, as in around 2,500 out of possibly hundreds of thousands. Also, they took a long time to get. Only 6.5 percent got them within five years of becoming eligible.

We've had experiences like that here, where legislative or policy victories don't reach as many people as we'd like. The takeaway is that the process needs to be as simple as possible and that people need to know they are eligible.

That may be where the real work begins.

It's past time for bail reform

On May 15, 2010, Kalief Browder and a friend were walking home from a party in the Bronx when they were stopped by police officers. He was accused of stealing a backpack stuffed with a camera, an iPod Touch, a credit card and $700 in cash.

Browder, a 16-year-old African-American, had no incriminating evidence against him and denied stealing anything. He was arrested and charged with robbery, grand larceny and assault.

Because he was on probation for taking a bakery truck on a joyride, Browder was not released. Instead, he was sent to a juvenile facility on Riker's Island known for "a deep-seated culture of violence."

Bail was set at $3,000, a sum his family could not pay.

He wound up spending three years at Riker's, much of that time in solitary confinement. During this time, he was brutalized by guards and other inmates, some incidents of which were captured on video.

Not surprisingly, he was traumatized by the event. He attempted suicide on more than one occasion in and out of custody. On June 16, 2015, he succeeded.

He was never placed on trial and never convicted of the offense. Charges against him were eventually dropped.

This example of what I can only call bureaucratic murder makes me feel sick every time I think about it. It also makes a travesty of the promise of the Fifth Amendment to the Constitution, according to which no person shall be deprived of life, liberty or property without due process of law.

As far as I know, nothing on that scale of awfulness has happened in West Virginia, but we have similar issues with low-income, low-risk nonviolent offenders wasting away in regional jails because they can't afford bail.

It causes untold suffering, clogs up the jail and prison system and costs a lot of money.

Speaking of money, the Gazette-Mail's Phil Kabler recently reported, "Counties paid the Regional Jail Authority more than $1.9 million in 2018 to jail individuals unable to post bond of $1,000 or less for misdemeanor charges."

That year, 3,750 people jailed on misdemeanor charges spent an average of 11 days in jail before they were released or were able to post bail. One person spent 127 days in jail due to lack of money to post a $500 bond.

That added up to 41,058 days that the counties had to pay for, to the tune of $48.25 per person per day. Because that doesn't cover the full cost, they had to kick in an additional $18,750.

In human terms, this can have devastating effects on those incarcerated and their families. Even short of extreme violence and suicide, lots of bad things can happen behind bars, many of which are not conducive to improving civic behavior or promoting public safety in the long run. And overcrowded jails and prisons are unsafe both for those who work there and those who are incarcerated.

There is a further issue here. Our state prisons are already overcrowded. So much so, in fact, that hundreds of people (1,205 in 2016, for example) sentenced to state prisons are still warehoused in regional jails, which are not designed to be long-term facilities. Many cannot access educational and other programs offered in prisons that might make them eligible for treatment, training or parole.

To state the obvious, having hundreds of people doing time in the jails at public expense simply because they are poor only makes things worse all the way around.

Fortunately, there is a growing and bipartisan awareness of this problem at the legislature these days. A (very modest) bail reform bill, HB 2190, passed the House and is up for consideration in the Senate. It allows people charged with certain nonviolent offenses to be released on their own recognizance. It could have been stronger, but at least it's a step in the right direction.

Words written by then U.S. Attorney General Robert Kennedy in 1964 still ring true today: "The rich man and the poor man do not receive equal justice in our courts. And in no area is this more evident than in the matter of bail."

(This appeared as an op-ed in the Huntington Herald-Dispatch.)

Time to end the SNAP ban

Some things that seem like a good idea at the time really aren’t.

Or, if you want to get biblical about it, “There is a way that seemeth right unto a man, the end thereof are the ways of death.” (Proverbs 14:12)

As is the case with most individuals, I think the U.S. has taken a wrong turn or two over the course of its history. One example that comes to mind is Prohibition, the nationwide ban on the production, importation, transportation and sale of alcoholic beverages that lasted from 1920 to 1933.

It didn’t stop the drinking (there were memories of “bathtub gin” in my family), but it was the best thing that ever happened to organized crime.

The “war on drugs” was another such misstep. While it may have given some politicians a racially tinged road to power, it devastated many communities, destroyed many lives and sucked up untold resources. Without getting rid of drugs.

Fortunately, it looks like more people across the political spectrum are beginning to question the policies of over-incarceration and of criminalizing public health problems.

There seems to be a growing awareness that punishment isn’t the best way to deal with addiction, and of the fact that the vast majority of people who get sucked into the prison-industrial complex are going to come out some day.

There is a growing interest in issues of recovery and re-entry, probably because the opioid crisis has touched so many families.

With both Democratic and Republican legislative majorities, West Virginia has taken some steps in a positive direction:

*In 2013, the Legislature passed the Justice Reinvestment Act, which aimed at reducing incarceration rates while protecting public safety.

*The same year, then-Gov. Earl Ray Tomblin expanded Medicaid coverage under the Affordable Care Act, which opened the gates of treatment and recovery for thousands of West Virginians dealing with addiction issues.

*In 2015, the Republican-led Legislature passed reforms in truancy and juvenile justice aimed at reducing the number of children kept in out-of-home confinement.

*In 2016, the Legislature passed a bill aimed at making it easier for people to regain driver’s licenses.

*In 2017, the Legislature passed the Second Chance for Employment Act, which allows people with nonviolent felony convictions to petition the courts to have the offense reduced to a misdemeanor.
Some of these steps could have been strengthened, but the trend shows movement in the right direction.

One big step West Virginia needs to take is to remove the lifetime ban on SNAP benefits (formerly known as food stamps) for people with felony drug convictions.

That arbitrary ban — which doesn’t apply to any other category of offender — is an ill-thought-out legacy of 1990s federal welfare reform legislation.

According to Marc Mauer, of the D.C.-based Sentencing Project, that measure received about two minutes of debate at the time it was passed.

It shows.

Since then, all but three states, including some of the most conservative, have modified or removed the ban.

Guess who’s one of the three? The others are South Carolina and Mississippi.

As Elizabeth Lower-Basch, of the Center for Law and Social Policy, put it: “I think most states have, over time, recognized this isn’t helpful for the goal of reducing drug use.”

According to a report by Molly Born, of West Virginia Public Broadcasting, in 2016, more than 2,100 people with felony drug convictions were denied SNAP benefits after they had served their time. That number doesn’t include people who didn’t bother to apply at all or those who were denied in other years.

An analysis of overdose fatalities in 2016 found that 56 percent of those who died from overdoses had been incarcerated. Further, “Of male decedents that were incarcerated within 12 months of death, 28% died within a month after release, compared to 21% of females. Nearly half, (46%) of individuals with only some high school education died within 30 days of their release.”

To state the obvious, when people have served their time for drug convictions, they often have little or no assets. Jobs are hard to find. Family and community connections may have eroded over time. Relapse is a possibility, especially if there seems to be no hope.

And they still need to eat.

The road to recovery is hard, but we have a lot of people on it. They don’t need another roadblock.

It’s time to end the ban.

Rethinking a lost war

Since President Ronald Reagan’s declaration of the “war on drugs” in the 1980s, the number of drug offenders in prisons and jails has increased 1,100 percent. Today, 5 million formerly incarcerated people are living in the United States and, every year, 600,000 people are released from prison and face the daunting task of building a stable life for themselves and their family.

For most of us, a job is the basic building block to a life where you can, at the very least, provide the basics of food for your family, a place to live, money to pay the bills and put gas in the car. Forget a family vacation.

But, according to a report just released by the Prison Policy Initiative, employment is really hard to come by if you are one of these 5 million people.

Using national data that had never been compiled before, they found that formerly incarcerated people are unemployed at a rate of over 27 percent — a rate higher than the total U.S. unemployment rate during any historical period, including the Great Depression.

Put another way, the unemployment rate for formerly incarcerated people is nearly five times higher than among the general population, creating “a counterproductive system of release and poverty, hurting everyone involved — employers, the taxpayers and, certainly, formerly incarcerated people looking to break the cycle.”

For formerly incarcerated people who are black or Hispanic — especially black or Hispanic women — unemployment rates are even worse, due in part to over-representation in arrests and incarceration in the first place, and then the conscious or unconscious racial bias of employers.

As Devah Pager found in her 2003 landmark study, “The Mark of a Criminal Record,” Black job seekers without criminal records were less likely to receive callbacks from employers than white job seekers with criminal records.

Children are the unseen victims of this counterproductive, discriminatory cycle of poverty and incarceration. In a vexing story published in The Nation about the impact of the opioid crisis on Henry J. Kaiser Elementary School, in Ravenswood, eight teachers reported that they have at least two children in their classrooms with a parent who has been incarcerated on drug charges.

According to the widely cited Adverse Childhood Experience study, having a parent incarcerated is one of the traumatic experiences that significantly impacts a person’s mental and physical well-being later in life.

The story in The Nation also noted that, even though hiring has picked up again in Jackson County, people with felony convictions are not getting hired.

Given bleak employment numbers for the formerly incarcerated, we should be doing everything we can to remove barriers, not only to minimum-wage jobs but good-paying ones.

As one formerly incarcerated man interviewed for the West Virginia Criminal Justice Listening Project said, “I need a career, not a job.”

Unfortunately, there are roughly 114 laws in state code that severely restrict people’s access to professional licenses based on criminal convictions. These laws are written in broad and vague terms like “crimes of moral turpitude,” making it either impossible or risky for a person with a criminal record to pursue a professional license.

Fortunately, there are two policies that the West Virginia Legislature is considering that will help address the interlinked crises of drug addiction, over-criminalization and low employment among formerly incarcerated people.

One would reduce barriers to occupational licenses people with criminal records face, while balancing licensing boards’ need for discretion. Another would establish a sentencing commission to review the sentencing laws on the books.

A meaningful sentencing commission would make recommendations for sentencing laws that are based on evidence and outcomes and less on the paradigm of “lock ‘em up” that has resulted in a staggering incarceration rate and millions of felons, and children, with the deck stacked against them.

Policymakers, employers and all of us need to get serious about investing more in treatment, education and job training than in jails and prisons. Because nobody in America, except maybe pharmaceutical companies and the private prison industry, is winning in the war on drugs.

(This op-ed by AFSC's Lida Shepherd appeared in today's Charleston Gazette-Mail.)

The new scarlet letter

A new partnership called “Second Chance Program” was announced between the Kanawha Institute for Social Research and Action (KISRA) and the Charleston Police Department (CPD) that hopes to provide more opportunities for people leaving prison.

As the Charleston Gazette-Mail reported, Corporal Errol Randle with the CPD pointed out that most people in prison eventually return to our communities, and so we must ask ourselves, “What are we doing to help them be successful when they get back here?”

This partnership is good news for Kanawha County and Randle’s question is an important one. What more can we do to help people succeed after they exit our prison system and re-enter our communities?

One way the Legislature could have a big impact statewide would be to affirmatively pass legislation to opt out of the federal ban that was passed as part of the Personal Responsibility and Work Opportunity Act in 1996, better known as welfare reform.

This ban that passed with welfare reform means people convicted of felony drug offenses are barred for life from obtaining food assistance through the Supplemental Nutrition Assistance Program (SNAP).

Twenty-eight states, under both Republican and Democratic leadership, moved swiftly after the 1996 law’s passage to opt out, by eliminating or softening the ban, and the majority of states eventually followed suit.

With our substance abuse crisis at epidemic proportions, and an ongoing reliance as a society on criminalizing addiction instead of treating it, more and more people in West Virginia are subject to this ban every year.

And ironically enough (or is it tragically?) West Virginia is among only six states that have neither eliminated nor modified the ban.

The effect of this ban has sweeping consequences on an individual’s life chances, as well as on their families.

Recently, I have had the privilege of sitting down with formerly incarcerated people and hearing their stories as part of the West Virginia Criminal Justice Listening Project. Without exception, the lack of access to stable employment or to public benefits, or both, are two of the greatest hindrances to getting one’s life back on track after serving time in our state’s prisons.

“Serving time” is a misleading expression, because it suggests that a person is only serving time when confined behind the walls of a prison. The harsh reality is that people continue to “serve time” by being denied food benefits, professional licenses and housing, as well as being subjected daily to the social stigma attached to a criminal conviction.

As one woman we interviewed said, “People make mistakes, and if they pay their time, they shouldn’t have to pay for that for the rest of their life. They shouldn’t have to carry that around. I shouldn’t have to wear a big scarlet F [felon] on my chest forever.”

A survey of formerly incarcerated people conducted by the Center for Economic and Policy Research suggests that barely over half of people are unemployed a year after release and that people with a felony conviction face much higher scrutiny in the hiring process.

Then the Bureau of Justice Statistics just released a report in May that found that 68 percent of released state prisoners were arrested within three years of release.

Listening to the stories behind the statistics, one man described trying to find work to pay for food after 10 years of incarceration and said, “It was like running my head against a brick wall. And once I got custody of my son, I was like, ‘I know how to make money,’ so I was right back out there [selling drugs] again.”

Call me crazy, but perhaps there is a causal effect between recidivism and barriers to food, housing and employment.

Fortunately, there are policies that the West Virginia Legislature can consider that would reduce recidivism by removing the myriad of collateral consequences people face when they leave prison with a felony on their record.

To start, we could stop denying food assistance to tens of thousands of West Virginians because of the mistakes they made. If there is another common refrain I hear from people during these interviews, it is that they don’t feel like the person they were when they were in active addiction, and that they deserve a second chance.

Consider what one interviewee said: “People can change. If they’re not given a chance to move forward, how are they going to move forward? If they can’t move forward, what are they going to do? I think that is vital to long-term recovery that they have a chance. I can change all I want, but [if] I don’t have any opportunity, I’m going to go back to what I know. The fact that I’m doing what I was supposed to be doing my whole life, I need a chance. And people don’t give chances, they just don’t.”

I know he hopes to be proven wrong and that we decide as a state to believe in, and invest in, second chances.

(This op-ed by AFSC's Lida Shepherd appeared in yesterday's Gazette-Mail.)

Talking sense on WV's prison crisis

This op-ed by co-worker Lida Shepherd appeared in the Charleston Gazette-Mail. It's worth a look.

Even in this moment of divisiveness, there is one thing Republicans and Democrats, Tea Party activists, taxpayers and politicians can all agree on: We have lost the so-called “War on Drugs.”

A generation ago, a steady drumbeat began for policies that were “tough on crime,” resulting in more arrests, harsher sentences and more prisons. Now we know what happens when you treat our generation’s greatest public health crisis as if it were a criminal justice problem.

In four decades, our prison population has increased 500 percent, and hundreds of billions of our tax dollars are spent on the incarceration, probation or paroling of 2 percent of the entire U.S. population (disproportionately people who are low-income and people of color).

And yet, today, the drug crisis rages on and the overdose deaths are higher than ever, especially in West Virginia.

In response to the inextricably linked crises of mass incarceration and the drug epidemic, people across the political spectrum, including Newt Gingrich, Bernie Sanders, Kamala Harris and Rand Paul are calling for policies that are “smart on crime,” emphasizing drug treatment centers instead of prison beds.

Despite this marked shift in the conversation, some of our state legislators continue to pursue the unsuccessful and costly strategies of the War on Drugs, all which would continue to tear families apart and reverse the gains made since the Justice Reinvestment Act of 2013, which sought to reduce the prison population through alternative sentencing, speedier paroling and enhanced parole services.

The West Virginia House of Delegates just passed House Bill 2607 that extends the maximum period of confinement, from 60 days to six months, that a judge may impose for minor first-time probationary violations. Without question, this measure will increase the prison population at a cost to taxpayers, and yet this bill was passed with no fiscal note.

Another bill that would add to the prison population, the West Virginia Senate passed Senate Bill 37 which will make daytime burglaries carry an extra five-year penalty. Is the rationale that a person who may commit a burglary — probably to feed a drug addiction — spends his or her time reading obscure statutes and will now think twice?

And last but not least, the Senate passed Senate Bill 73, which creates a whole new felony and mandatory minimum sentence for a person who leaves the scene of an accident, which effectively ties judges’ hands instead of allowing them to consider all the facts in what is already a tragic case.

Lawmakers want to show they are “tough on crime” instead of “smart on crime,” so they pass laws to create longer sentences and more felonies. Then, prosecutors can use the threat of a long sentence to pressure people — most of whom are low-income people and people of color — into taking a negotiated guilty plea now, instead of risking a 10- or 20-year sentence at trial later, which may not happen for a year or two, if ever.

Indeed more than 95 percent of cases never even go to trial. Never mind that the Sixth Amendment says, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”

Policies that establish longer sentences, stiffer penalties and new crimes is how mass incarceration happens; it is no accident. Continuing down this path means there perpetually will not be enough money for prevention, jobs programs, higher education or treatment beds.

On a positive note, the House Judiciary Committee passed House Bill 2727, which instructs the Division of Motor Vehicles to work with the Division of Corrections in assisting people leaving prison to obtain a state ID. HB 2727 addresses a huge barrier people face when trying to get on track to becoming stable taxpayers. We hope the House Finance Committee will see the impact this bill could have on recidivism and workforce participation, and put it on its agenda.

Is this the year we finally choose treatment beds over prison beds, and reject policies that do nothing to enhance public safety or West Virginians’ ability to get an education or a good-paying job? Only if we tell our lawmakers to “Just Say No” to the failed policies of the past that have cost us so much, in tax dollars and, even more tragically and incalculably, in human potential.

Lida Shepherd is program director for the American Friends Service Committee.

Rounding out the week

Hannah Arendt, 1906-1975.

I just came across this quote by Hannah Arendt. Somehow it doesn't give me a good feeling:

"The ideal subject of totalitarian rule is not the convinced Nazi or the convinced Communist, but people for whom the distinction between fact and fiction... and the distinction between true and false... no longer exist.”

SPEAKING OF THE DISTINCTION BETWEEN FACT AND FICTION, check out AFSC's weekly update on the WV legislature. We call it Wonk's World, as in Wayne's World for policy wonks. Our goal is to be silly but mostly truthful and snarky but not mean.  Here's this week's and here's the first one.  

 WHILE WE'RE AT IT, here's a great op-ed by my friend Dan Kurland on WV's version of the hunger games.

Random observations

Here are a few:

*It's a bit ironic that while congress is finally talking about dealing with mass incarceration, Democratic leadership is MIA.

*Someone else dropped the F-bomb.

*Meanwhile, back at the state capitol, the wrecking crew still hasn't come up with a budget even though we're less than a month from a government shutdown. This Gazette editorial is a day or so old but it sums things up pretty well. And this op-ed doesn't pull any punches.

*Urgent Neanderthal update here.

Strange bedfellows

This item from the NY Times caught my eye today. It looks like groups across the political spectrum--from Koch Industries and Freedom Works to the ACLU and Center for American Progress--are uniting to support policies to reduce the US prison population and recidivism.

One thing I'm hopeful about in the WV legislature is that there may be similar agreement about reducing the number of children in the juvenile justice system. I mean, really. If those guys can agree on the need to make the adult system a little less awful, one would think we could do something like that here for young people in the system.

IT'S NOT ALL LOVE-AND-HUGS. Here's an op-ed by a friend of mine on why right to work (for less) is a bad idea.

A better idea

Prison overcrowding has long been a problem in West Virginia (and elsewhere). Here, though, well over 1,000 inmates who have been sentenced to prisons remain in regional jails, which are temporary holding facilities that don't offer the kinds of programs that can help people get parole and stay out.

For the best of reasons, the WV Division of Corrections is considering voluntarily shipping such inmates to out of state private for profit prison corporations, which, aside from being expensive is a bad idea for reasons discussed here, here, and here.

Recently, a better solution has been proposed by a program official with the state regional jail authority: hire counselors in the regional jails to offer programs specifically for those inmates. I think there are plenty of other things that need to be done, like actually following through on previously agreed on plans, but we need to reject the Trojan horse of private prisons.

Prisons and such

Prison overcrowding is still a major issue in WV, as it is around the country. On the bright side, the issue is starting to get more serious attention here. The following news item is a good example. It cites a report jointly published by the WV Center on Budget and Policy, the Partnership of African American Churches and the American Friends Service Committee.

I was also glad to see this item in the Daily Mail, which looks at the issue of parole violations. A good bit of recidivism in WV is the result not of additional felonies but rather of technical violations. One way of whittling down the problem of overcrowding is to find better ways of dealing with these than locking people up for additional months or years.

DOH. El Cabrero's beloved state of West Virginia got low marks for livability in a recent survey.

Short rations

For several months, I've been working with friends on a report about prison overcrowding in WV. Among the groups involved were the WV Center on Budget and Policy, the Partnership of African American Churches, and the American Friends Service Committee. We released it last week. Here's the report and here's some media coverage.


MINE SAFETY. Here's Ken Ward on WV's new mine safety legislation which is currently working its way through the statehouse. Methinks he's a bit underwhelmed. As a person of very low expectations, I have a little more positive take on it.

I MUST BE GOING TO THE WRONG yoga classes.

POLITICS AND CLIMATE CHANGE. What does reality  have to do with it, anyway?

GOAT ROPE ADVISORY LEVEL: ELEVATED

A changed landscape

The death of Senator Robert C. Byrd was a loss in many ways for many people. His life was a vivid testimony to the fact that people can keep changing and growing throughout their lives. It's an example and a challenge that will be tough to live up to.

The timing of his death was unfortunate in itself as the nation gears up for debate on energy and climate change issues. Byrd was the only West Virginia leader to take a strong, studied and independent stand on these issues and his voice and vote would have been crucial in making the next steps.

It's sad to say--and I'd really like to be wrong about this--but the great majority of state political leaders are likely, however unintentionally, to work diligently to block and obstruct any effort to seriously deal with climate change, an effort which, if successful, will help to ensure a dismal future for humanity. Coal controversies here are likely to get uglier and uglier without the voice of someone of his stature calling for a reasoned approach.

He leaves a void that is unlikely to be filled.

MORE ON BYRD. Here's Ken Ward's look back at Senator Byrd's changing position on coal and climate over the years. And here's the NY Times obituary.

RECESSION OR DEPRESSION? If it's the latter, blame a failure of public policy.

A CASE IN POINT is made in this op-ed by yours truly about the failure of the Senate to address unemployment and aid to states.

IT'S NOT ALL BAD. It looks like the nation is rethinking its approach to crime and punishment (the real thing, not the novel).

WANDERING MINDS may not be a bad thing.

GOAT ROPE ADVISORY LEVEL: ELEVATED

THE PROPER MEASURE

Caption: This man is overcome with pessimism.

Aside from comments and links about current events, the theme for this week's Goat Rope is optimism and pessimism. If this is your first visit, please click on the earlier posts.

While a little philosophical pessimism is probably a good antidote to naivete, some people run it into the ground.

A case in point is the German philosopher Arthur Schopenhauer (1788-1860). He was the pessimist's pessimist. Here's a sample from his essay "On the Suffering of the World"...

Unless suffering is the direct and immediate object of life, our existence must entirely fail of its aim. It is absurd to look upon the enormous amount of pain that abounds everywhere in the world, and originates in needs and necessities inseparable from life itself, as serving no purpose at all and the result of mere chance. Each separate misfortune, as it comes, seems, no doubt, to be something exceptional; but misfortune in general is the rule.

In another essay charmingly titled "The Vanity of Existence," he says

Human life must be some kind of mistake. The truth of this will be sufficiently obvious if we only remember that man is a compound of needs and necessities hard to satisfy; and that even when they are satisfied all he obtains is a state of painlessness, where nothing remains to him but abandonment to boredom. This is direct proof that existence has no real value in itself; for what is boredom by the feeling of the emptiness of life?

I bet that dude knew how to party...

Maybe the attitude that is most useful to life is one that combines some elements of pessimism and optimism. A dash of pessimism could be a check on hubris and even a spur to gratitude. When you realize how bad things could be, it makes you appreciate it when they're not. I make it a practice to try to notice and be glad when I don't have a toothache or a catheter. And since I don't expect to get everything I want, I'm grateful for little victories.

Believe it or not, things could be a LOT worse...

Nietzsche once talked about "a pessimism of strength." What we need is a view of the world that fully acknowledges its dark side, dangers and difficulties but which is willing to take action to change things.

The French writer Romaine Rolland came up with an elegant expression of that approach (later popularized by Antonio Gramsci):

Pessimism of the intellect; optimism of the will.

WHAT HE SAID. Jonathan Chait is one of my favorite New Republic writers. Here's his op-ed on the loopiness of supply side economics from yesterday's NY Times.

PLANET JUPITER UPDATE. OK, so this doesn't' have an immediate connection with economic justice--but it's cool.

MAGICAL THINKING. We're officially against torture. So if we do it it's not torture. Any questions?

"FRIENDLY FIRE." El Cabrero's beloved state of West Virginia, aka the Energy Sacrifice Zone, is the subject of this item from alternet.

PRISONS. A new study by the WV Council of Churches argues that a small investment on community-based corrections could save the state a lot of money and prevent other problems.

GOAT ROPE ADVISORY LEVEL: ELEVATED