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!

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.

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.

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.

Why warehousing people doesn't work

We've been trying to chip away at mass incarceration in WV for a while now, both for adults and for kids in the juvenile justice system. This NY Times op-ed provides a good summary of why it just doesn't make sense.

One thing that does make sense is substance abuse treatment. WV just launched its first residential treatment program for regional jail inmates. That's kind of a big deal since many inmates aren't eligible for parole without treatment.

Off topic, I really hope the WV legislature doesn't revisit the bogus "religious freedom" license to discriminate bill in the future. Here's what an editor at the Gazette-Mail had to say about that.

Prison nation

On the latest Front Porch program/podcast, we spoke with my friend Pastor Matthew Watts of Grace Bible Church and Hope Community Development on Charleston WV's west side. This is a heavily edited version of a long conversation we had about prisons, race, mass incarceration, social changes and more.

WISDOM BOOKS. Regular readers of this blog know I'm a sucker for ancient Greek and Roman classics. Right now, I've made a decent start at rereading three classics that I plan on going through again and again: Plutarch's Lives, Herodotus' Histories and Thucydides' Peloponnesian War. (I'm about 320 pages through the first and just finished the life of Timoleon, the Corinthian leader who liberated Sicily from the rule of tyrants.) So it's no wonder that this Gazette-Mail op-ed on Thucydides caught my eye.

SAD SIGN OF THE TIMES. It's no secret that WV has a drug overdose problem and that my county of Cabell is ground zero. It was really sad for me to read that school nurses in that county are preparing to administer naxolone for opioid overdoses.

Mandatory minimums: a dead end road

This op-ed in today's Charleston Gazette-Mail was a collaborative effort between my friends Pastor Matthew Watts, Lida Shepherd and myself:

Across the country and the political spectrum, many people have begun to realize we took a wrong turn a while back.

While pursuing legitimate concerns about crime and drugs, Americans set off on a decades-long binge of prison building and mass incarceration. The good we sought never materialized, but the collateral damage was massive.

Unfortunately, two bills that just passed the West Virginia House, HB 4240 and 4578, would put us back on that wrong road by imposing harsh mandatory minimum sentences on nonviolent drug offenders.

These measures would do nothing to make our communities safer, help people recover from addiction, reduce recidivism or help fund education or economic development.

On the other hand, they would lead to another prison population explosion, further bust the state’s budget, destabilize families and communities, deplete West Virginia’s shrinking workforce and make it harder for the state to invest in education, early childhood and economic development. And they would threaten to undo the progress the state has made with Justice Reinvestment legislation.

These bills also go against the grain of the work of many Republican leaders who have advocated a more intelligent approach to these issues. Some who have opposed mandatory minimums include former Arkansas governor Mike Huckabee, former Texas governor Rick Perry, Representative Paul Ryan of Wisconsin, and Senator Rand Paul of Kentucky.

A little background from the Coalition for Public Safety might help put things in perspective. The coalition is a national effort of unlikely allies and supporters that includes such conservative giants as Koch Industries, Americans for Tax Reform and Freedom Works as well as groups like the ACLU and NAACP.

According to their research:

•  While the U.S. has 5 percent of the world’s population, it has 25 percent of its prisoners. We now lead the world with 2.2 million in prisons or jails. Our prison population has gone up by 500 percent over the last 30 years.

•  The federal prison population has increased by nearly 800 percent over the last few decades. Of these, 60 percent are nonviolent offenders.

•  Taxpayers are paying $80 billion per year to pay for this. And the costs are rising.

•  Between 70 million and 100 million Americans — nearly one out of three — has some kind of criminal record, “which carries lifelong barriers that can block successful re-entry and participation in society because of restrictions on employment, housing and voting. Mass incarceration contributes to a cycle of poverty that traps individuals, families and entire communities for generations.”

•  People who have been incarcerated typically earn 40 percent less per year than those who haven’t.

•  While drug abuse and crime occur across ethnic and socio-economic lines, punishments fall hardest on low-income communities and people of color. African-Americans are four times more likely to be imprisoned than white Americans and more than 60 percent of the prison population now come from minority communities.

It’s pretty clear. The blind alley of mass incarceration doesn’t make us safer, but it has destroyed lives and families and sucked up resources urgently needed elsewhere. Millions of Americans now live under the burden of felony convictions, which has been called “social death,” a lifelong loss of rights and privileges, along with poor life chances for work, education, asset building and family life. Meanwhile, the drug epidemic continues unabated.

Rather than repeat the mistakes of the past, we need to move forward based on evidence-based approaches that actually work to promote public safety, such as substance abuse treatment, community corrections for low-risk nonviolent offenders, validated risk and need assessments of offenders, and help with reentry to avoid recidivism.

Going backward is not an option.

Views from Baltimore

Lots of people today are thinking about Baltimore given the recent news reports. I developed a fondness for that city during the years that the regional office of my employer, the American Friends Service Committee, was located there. Not to mention The Wire...

Anyhow, today I want to give a shout out to my colleagues in Baltimore who are doing their best to make real peace and struggle for justice there. They are living pretty close to the bone these days. I wish them and that city all the best.